ABC News' Ariane de Vogue (@arianedevogue) reports:
A divided Supreme Court refused tonight to delay the execution of a Mexican national on death row, despite pleas from top officials of the Obama administration.
Humberto Leal is scheduled to die tonight, and now only Governor Rick Perry can delay the execution.
Leal argued that his rights were violated because he was never informed of his ability to seek legal assistance from the Mexican Consulate in violation of the Vienna Convention . The United States urged the Supreme Court to delay the execution long enough for Congress to pass legislation to facilitate U.S. compliance with consular notification and provide judicial review for Leal and others who were denied access.
But Justice Antonin Scalia, joined by Chief Justice John Roberts, Justice Samuel Alito, Justice Anthony Kennedy and Justice Clarence Thomas rejected the administration’s request.
“We are doubtful” wrote Scalia, “that it is ever appropriate to stay a lower court judgment in light of unenacted legislation. Our task is to rule on what the law is, not what it might eventually be.”
The majority criticized the government for claiming that the execution could cause grave international consequences. “Congress evidently did not find these consequences sufficiently grave to prompt its enactment of implementing legislation, and we will follow the law as written by Congress.”
Justice Stephen Breyer, writing a dissent joined by Justices Elena Kagan, Justice Sonia Sotomayor and Justice Ruth Bader Ginsburg said he would have granted a delay of the execution.
Breyer writes that the majority “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."
Leal is currently in state prison in Huntsville Texas awaiting his execution. He’s been given his last meal of fried chicken, pico de gallo, tacos and fried okra.
The warrant for death is valid beginning at 6 pm Central time.
Sandra L. Babcock, Leal’s attorney issued a statement tonight saying “Today the United States stumbled in its commitment to the rule of law. Mr. Leal, tragically, will suffer the consequences. He will be executed tonight, despite the fact that his right to consular assistance was violated. If he had had the assistance of the Mexican consulate at the time of trial, Mr. Leal would have had a meaningful opportunity to show that he was not guilty of capital murder."
And Senator Leahy, the sponsor of the Consular Notification Compliance Act said the issue remains a “serious diplomatic legal concern.”
In a statement Leahy said, “Congress has a responsibility to ensure that the United States is meeting its obligations under the Vienna Convention on Consular Relations, and I will continue to work with Members on both sides of the aisle to enact this important legislation. The safety and well-being of U.S. citizens who study, work and travel overseas depends on it.”