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Supreme Court Chief Justice John Roberts Jr. Supreme Court Justice Anthony Kennedy federal law without regard to the president’s determination?” Roberts asked. This set the stage for Clement, whose job it was to convince the justices that the president’s opinion mattered; in fact, it was the “critical element” in this case. Scalia questioned whether “the president can make a domestic law by writing a memo to his attorney general.” Justice Samuel Alito added, “If we agree with you, would the effect be that the president can take any treaty that is ratified … and give it force under domestic law?” Clement laid out the heart of the administration’s argument: The president can’t displace the Supreme Court. But if the president decides to comply with an international tribunal’s judgment, “the role of this court is limited to deciding whether there was jurisdiction to issue that judgment in the first place; and then the secondary role of this court would be to say, does the rule of law embodied by that judgment violate the Constitution?” . Clement concluded by defending the power of the presidential memorandum, even though it was directed to the attorney general and not the states: “Obviously, from the very beginning in this case, we have taken the position in this court that the , presiaent ,s memorandum directs the state courts, in its words, to give effect to the Avena judgment not decide whether you want to give it effect … but to give effect to the judgment.” Shortly after Cruz began his oral presentation, Justice Stephen Breyer noted that the Constitution requires treaties the United States enters into to be the “supreme law of the land,” which should be binding upon judges in every state “I guess it means including Texas?’ he remarked wryly. Cruz responded that, in this case, the treaty was not “selfexecuting” because Congress failed to pass supporting legislation to give aggrieved parties legal recourse in U.S. courts. And in any regard, any treaty that “purported to give the authority to make binding adjudications of federal law to any tribunal other than [the Supreme] Court … would violate Article III of the Constitution?’ But what about the 112 treaties and 116 international regulatory entities the United States has joined, Breyer asked. “Is your view [that] all of these thousands perhaps hundreds, anyway of treaties are unlawful, and that our promises are not enforceable because there’s a constitutional question?” “In those instances, the bodies in question are not making definitive interpretations of what federal law is?” Cruz replied. “The entire purpose of this adjudication?’ Cruz continued, “is not to resolve something finally in a court of law, but it is rather a diplomatic measure ….” He compared it to the United States bringing an ICJ case against Iran during the hostage crisis in 1979. “We didn’t believe the Ayatollah was going to listen to the ICJ and suddenly let the hostages go … but it was helpful diplomatically to bring it to the tribunal to then [apply] international pressure?’ Later in the arguments, Kennedy posed another hypothetical that could give insight into where he may come down on the case. What if a judge refuses to allow a defendant to contact his consulate, Kennedy asked. Could you order that judge to “The president and the Senate made a basic commitment to this country’s most basic values, which is a commitment to the rule of law.” NOVEMBER 2, 2007 THE TEXAS OBSERVER 17