SG Asks SCOTUS To Delay Texas Execution to Allow Congres To Enact Legislation

July 1st, 2011

Lyle and Tony have thorough explanations of the SG’s plea to the Supreme Court to stay the execution of Humberto Leal. In short, this case is a follow-up to Medellin II. Leal was a Mexican national who was not afforded access to a consulate, in contravention of the Vienna Convention. In Medellin the Supreme Court found (among other things) that the Convention was not self-executing and Congress needed to enact legislation to put it into effect. Medellin was in 2008. Fast-forward to 2011, and Congress has still not enacted the appropriate legislation.

Here, the Solicitor General asks the Court to stay the execution, at least until the end of the current session of Congress, in order to give the Legislature time to enact the requisite statutes. The Administration supports it, and a sponsor in the Senate  has introduced the bill.

One of the interesting aspects of this plea is the SG’s request to stay it to give Congress a chance to change the law:

This case is therefore more akin to those in which the Court has exercised its discretion to stay its mandate in order to provide Congress with a reasonable opportunity to enact legislation in light of a judicial decision. See, e.g., Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 88 & n.40 (1982) (ordering a “limited stay” in order to “afford Congress an opportunity” to enact legislation that would “reconstitute the bankruptcy courts” in response to the Court’s decision); Buckley v. Valeo, 424 U.S. 1, 142-143 (1976) (per curiam) (entering a stay to afford Congress an opportunity to reconstitute the Federal Election Commission). Those authorities suggest that, in circumstances affecting vital government interests, this Court may exercise its discretion under the All Writs Act to maintain the status quo for a limited period in order to provide an opportunity for Congress to take necessary action.

Update: This plea makes me think of NAMUDNO, where the Court basically told Congress that the Voting Rights Act was unconstitutional, but they would give them some time to fix it. Curious why that case wasn’t cited.