A Running Commentary

President George W. Bush has been a real downer for conservative/libertarian types, bungling wars and national disasters, to say nothing of his wholesale sellout of fiscal responsibility. Contrary to being Ronald Reagan’s limited-government heir, Bush has frequently pursued polices as expansionist as Democrats. Republican policy goals may be different but their drive to control private life from Washington is the same (The Patriot and No Child Left Behind Acts come to mind). And yet all is not lost. With its Medellin v. Texas ruling on Tuesday, the Supreme Court reminds us of at least one positive legacy of the Bush Presidency.

Federal bench appointments are frequently the olive branch Republicans offer to conservatives; this week the branch blossomed. Chief Justice John Roberts, writing for a 6-3 majority, firmly affirmed the sovereignty of these United States and refuted the expansionist tendency of the federal executive. In a twist of irony, Bush was sternly reprimanded by his own appointments, Roberts and Samuel Alito, while drawing support from 3 dissenting opinions written by justices who sided with Al Gore in 2000.

Background

Jose Ernesto Medellin, a Mexican national, was convicted and sentenced to death by a Texas court in 1993 for the rape and murder of two teenage girls. Under the Vienna Convention, an international treaty, foreign nationals have the right to contact their country’s representatives when tried in a foreign nation. Texas officials failed to inform Medellin of those rights and Mexico subsequently sued the United States in The World Court. The international court ruled that 51 different Mexican citizens on death row, including Medellin, had a right to have their cases reviewed by American courts to see whether a new trial was necessary.

Under pressure at home, the President initially disagreed with the ruling and pulled the U.S. out of the Vienna Convention. Subsequently, however, Bush ordered the states involved to grant new hearings anyway as a matter of foreign policy. Texas refused as matter of state law and Medellin appealed to the U.S. Supreme Court. At issue, then, were two questions: (1) Do international courts and treaties supersede the sovereign laws of U.S. states without corresponding U.S. law, and (2) Does the authority of the executive branch over foreign policy give the President the power to effectively create such law himself?

The Court’s answer to both questions is a resounding “no”. Roberts wrote that even though the U.S. ratified the Vienna treaty during the Nixon administration, it does not supercede state sovereignty unless Congress separately enacts law saying so. Moreover, Roberts reaffirmed the Constitutional concept that “the President’s authority to act, as with the exercise of any governmental power, must stem either from an act of Congress or from the Constitution itself.”

Legacy: 53 and 57

The ruling is a refreshing signal of the Court’s willingness to curtail federal expansionism. For a President who has ardently sought to increase executive power, especially over foreign affairs, the rebuke is especially shrill. Looking beyond this administration, the ruling is a heavy blow to activists who would grow federal power to suit partisan agendas or would see U.S. sovereignty made subservient to foreign courts.

So whatever Bush’s turncoat tendencies toward small-government conservatives, let’s note two striking numbers: 53 and 57. Those are the respective ages of Bush appointees Roberts and Alito, two Constitutionally minded men who will form the backbone of the Supreme Court for years to come. Roberts in particular as the Chief Justice will have enormous sway over the Court’s tone and direction.

A question, then, regarding the legacy of George W. Bush: Which will last longer, the tenure of Chief Justice John Roberts or American troop presence in Iraq?