Does the President of the United States have the power under the Constitution to order the states to use their reserved police power any way he wants?
Normally the answer would have to be no.
The Tenth Amendment was adopted to reserve to the states and the people all rights not delegated to the newly formed federal government and not prohibited by the Constitution to the federal government.
But what if the United States has entered a treaty with foreign nations, such as to protect migratory birds, such as in Missouri v. Holland (1923) (Holmes, J., writing)? There the Court held that since treaties are declared in the Constitution to be the Supreme Law of the Land (Article Article VI, Sec. 2), the states are required to bow to federal regulations adopted to effectuate the treaty, such as to ban the hunting of protected species of migratory birds, which protect the nation's food supply by eating insects that destroy crops that just happen to be sold in interstate commerce, as though that were necessary to the decision.
The U.S. has entered the Vienna Convention, which prescribes rules of consular relations. A foreign national arrested in the United States has the right to have his consulate notified in order to receive such protection as his nation affords its nationals, such as a visit from a consular representative if that service is provided. In an important enough case, there might actually be such a visit, such as in a death penalty case.
There are a number of Mexican nationals on various Death Rows in the U.S. Local authorities failed to honor the dictates of the Vienna Convention. Can these prisoners be put to death without having been afforded their consular rights? Have they been prejudiced? How can we ever know? Their consular rep might have visited and advised not to talk to police, or contacted a really good lawyer to represent.
Pres. George W. Bush, bowing to an International Court Order, has issued a directive of some sort telling the states to get with it and notify the consulates and, oh, yes, to conduct judicial hearings into the question of whether the death penalty may stand, apparently.
The L.A. Times news article is here, in which Greg Abbott, the Texas Attorney-General respectfully questions whether the president has the constitutional power asserted.
- Police power: Reserved to the states (10th Amendment).
- Treaty-making power of the nation: Allocated to the President with the advice and consent of the Senate.
- Presidential power to implement international treaties by executive order.
These are several of the constitutional powers in potential conflict with each other when the president tells the states that a number (varying numbers are being reported, from 51-69) of Mexican nationals on death rows (or with capital cases pending) must be given hearings on whether the outcomes of their prosecutions might have been different had local authorities honored their right under the Vienna Convention to have their local consulates notified of their arrest in capital charges. There may be others.
Several conlawprofs have been discussing this, as per below:
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