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Preview: Comments on: The Supreme Court’s Off-Ramp from the Road To Medellin

Comments on: The Supreme Court’s Off-Ramp from the Road To Medellin

Harangues that just make sense

Last Build Date: Thu, 23 Nov 2017 22:56:39 +0000


By: Roger Friedman (7b90fd)

Wed, 17 Oct 2007 18:54:19 +0000

drj -- No treaty is being enforced in the US courts. It is the decree of the ICJ in the Avena case that is being enforced. It is being enforced as US law pursuant to the ICJ treaty. In my hypo, it is not Nebraska divorce law that is being enforced in the Ohio court, it is the decree of the Nebraska court. The case was heard and decided in a proper jurisdiction (Nebraska, ICJ), and other jurisdictions (Ohio, Texas) should respect it and not try to re-judge the merits under anybody's law (Nebraska/Ohio, international/Supreme Court). In other words, it should give the decree full faith and credit. Bush's letter adds no force to what the ICJ treaty already required. If he had said that the US would not enforce the decree notwithstanding its treaty obligation, it might be a different story, the Court would at least have to address whether he had that power. The federalism issue is a phony -- the Avena decision applies in Texas as much as the 1st Amendment or the federal drug laws -- the hangup is that Texas refused to accept it as "new law" under its state habeas code. It is free to continue to do so, but if it does it can expect that the required hearing will be conducted in US District Court under federal habeas.

By: Christoph (92b8f7)

Tue, 16 Oct 2007 22:37:12 +0000

Found it.

By: DRJ (8b9d41)

Tue, 16 Oct 2007 22:32:38 +0000

Roger Friedman, Thanks for your response. I should have been more specific. Why so you think this a full faith and credit issue? It seems like a federalism issue to me and that makes me wonder: Is it your position that it is the President's memo that must be enforced or is the treaty itself enforceable in state courts?

By: Christoph (92b8f7)

Tue, 16 Oct 2007 22:02:55 +0000

What is Souter's position?

By: Roger Friedman (aba8ba)

Tue, 16 Oct 2007 21:57:28 +0000

nk -- (1) As soon as you start talking about body attachment, you start talking about the 4th amendment and neutral detached magistrates and habeas corpus. This is why I initially said that waiving procedural default does not violate anybody's constitutional rights. (2) I also noted initially that the ICJ had jurisdiction, which Texas does not deny. In my hypo, I assume that "we" got divorced in Nebraska, meaning that both parties had submitted to the personal and subject matter jurisdiction of the Nebraska court. (3) Of course we'll see. But what I was responding to in WLS's analysis was the idea that there was some need for a trick solution to avoid confronting the issue of presidential power. But if you look at my analysis, you will see that the president need not have said anything for the order to be enforced. If the president or congress had said something to the contrary, then you might have had to address the scope of their powers. That's why I think Roberts and Alito can join Souter (whose position I have been parroting).

By: nk (6e4f93)

Tue, 16 Oct 2007 14:08:09 +0000

Fair enough, Roger, but to carry your analogy to this case: The Nebraska decree was filed in the Ohio court and the Ohio court issued further orders for its enforcement in Ohio. It was not given to a sheriff in Ohio who went and "body attached" the delinquent ex or, even more closely, to the Governor of Ohio who directed an Ohio court to issue a body attachment. Further, the Nebraska court's subject matter and personal jurisdiction can be challenged in the Ohio court. We'll see. I like WLS's analysis.

By: Roger Friedman (7b90fd)

Tue, 16 Oct 2007 13:40:42 +0000

drj -- Suppose you and I have been married and get a divorce in Nebraska. The decree specifies that I have to pay you $1000 per month alimony. I move to Ohio and stop paying you. You bring an action against me in Ohio to enforce the Nebraska decree. I don't get to litigate in Ohio whether the Nebraska decree was fair and legal; because I got due process in Nebraska, the Ohio courts should simply enforce the decree without looking behind it to the underlying case. This is giving full faith and credit. Even if Ohio law prohibited alimony, the decree would have to be enforced because the matter had been litigated and decided. The same thing happens between countries, either as a matter of treaty or of comity (the respect courts show other courts).

By: nk (6e4f93)

Tue, 16 Oct 2007 02:53:26 +0000

Roger #39, thank you. I do have more questions but DRJ is ahead of me and by anwering hers you might answer mine.

By: DRJ (67ced6)

Tue, 16 Oct 2007 02:37:31 +0000

Roger Friedman #36, I'm glad you joined this discussion. I found your comment helpful but I don't understand this statement:
"In the decision under review, the Texas courts redecided the merits of Avena, they did not give it the full faith and credit it deserved."
Would you mind elaborating on it?

By: Roger Friedman (d613a0)

Tue, 16 Oct 2007 02:27:36 +0000

nk -- Scalia very early in the argument said that he was loathe to give up his authority under Article III to decide what US law is. Other bloggers have suggested this was directed at Kennedy. But it is well-established that decisions of foreign courts will be enforced in the US where the foreign court had jurisdiction and the parties could get due process. In a like manner, decisions of the courts of one state will be enforced in the courts of another. Otherwise custody battles and will contents would be even uglier than they already are, with one court constantly trumping another.