Consular Notification Compliance Act

  • July 8, 2011

    In the face of concerns about an “irremediable breach” of international treaty obligations, Texas went forward with the execution of Mexican National Humberto Leal Garcia last night, after a 5-4 Supreme Court majority rejected a request for a stay, The Washington Post reports.

    Numerous parties including the Obama administration, the United Nations and Mexico had supported delay of the execution, pending action on a bill that would have allowed a hearing for Leal on Texas officials’ failure to inform him of his right to consult with the Mexican consulate.

    Failure to inform him of his rights is a violation of the Vienna Convention on Consular Rights, which the U.S. ratified in 1969, and the law, the Consular Notification Compliance Act, seeks to facilitate state compliance with the international treaty.

    In an amicus brief, Solicitor General Donald Verrilli Jr. warned that executing Leal without holding such a hearing would cause “irreparable harm” to “foreign-policy interests of the highest order” and would have “serious repercussions” for Americans' access to consular assistance in the event of their detention while abroad.

    A five-justice majority denied the request, stating, "Our task is to rule on what the law is, not what it might eventually be.”

    In his dissent, Justice Stephen Breyer countered that the Court “has long recognized the President’s special constitutionally based authority in matters of foreign relations.”

    In reaching its contrary conclusion, the Court ignores the appeal of the President in a matter related to foreign affairs, it substitutes its own views about the likelihood of congressional action for the views of Executive Branch officials who have consulted with Members of Congress, and it denies the request by four Members of the Court to delay the execution until the Court can discuss the matter at Conference in September. In my view, the Court is wrong in each respect.

    In reaction to the decision, Senate Judiciary Committee Chairman Patrick Leahy expressed concern for the safety of Americans who travel abroad.

    “Americans detained overseas rely on their access to U.S. consulates every day,” he said. “If we expect other countries to abide by the treaties they join, the United States must also honor its obligations.”

    The Atlantic's Andrew Cohen blasts the Supreme Court's decision as "one of the most ignoble acts by the Court in recent memory; a reminder, as if we needed one, of the hostility the current majority often expresses toward the workings of the real world."