Obama’s attempted intervention to stop the execution of brutal rapist-murderer Humberto Leal Garcia arose quickly and, after its failure, seems to be fading just as quickly from news attention. It shouldn’t.

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It was bad enough that President Obama last week asked the Supreme Court to apply a law that has not even been enacted. It was worse that four of the Left’s lackeys on the Supreme Court, one short of a majority, were willing to do it.

Obama’s attempted intervention to stop the execution of brutal rapist-murderer Humberto Leal Garcia (henceforth “Leal”) arose quickly and, after its failure, seems to be fading just as quickly from news attention. It shouldn’t. The Obama legal position was abusive of the rule of law, and its provenance is questionable.

In 1994, then-21-year-old Leal raped a drunken 16-year-old girl with a 15-inch stick and bludgeoned her to death with a 30-pound rock. There is no doubt that Leal did the crime. He was convicted and sentenced to death in 1995, and spent the past 16 years exhausting all the usual appeals (45 hearings!). Yet days before Leal’s long-delayed execution, Obama sought last-minute review by the Supreme Court on the grounds that Leal had not been afforded the chance to ask the Mexican consulate for representation, an opportunity supposedly required under international law.

Leal, you see, was technically a Mexican national: His family had moved him to the United States, illegally, when he was two-years old. For 19 years, he had lived as if he were a U.S. citizen, and nobody during his questioning or trial appeared aware that he technically remained Mexican. The Obama administration, of course, notoriously tries to treat illegals very much like citizens, providing them all sorts of benefits while grabbing any excuse to refuse to deport them. Now, though, the president wanted to exploit Leal’s illegal status to provide him yet another means of escaping American justice after 16 years of due process. Apparently illegality always accrues to the benefits of the illegal, not to that of the victimized citizens.

Still, immigration policy isn’t really at issue here. Instead, the two big issues are both of constitutional law. Obama’s argument was two-fold. First, he said foreign policy considerations ought to let the president and courts apply international law within U.S. courts (and thus stop, for now, the execution on the grounds that the consular representation had never been secured). Second, he argued that because Senate Judiciary Chairman Pat Leahy (D-Vermont) has introduced a bill to codify that international law within American statutes, the courts ought to stay the execution long enough to let the legislative process play out.

The first argument comes close (in essence, if not technically) to revivifying the long-running dispute over when and if foreign law should be relevant in U.S. courts.   As Justice Antonin Scalia said in a famous debate on the topic, “we don't have the same moral and legal framework as the rest of the world, and never have” – which is fortunate, because we Americans wisely have not provided “the consent of the governed” for laws adopted by foreigners.

The second argument is, if anything, even more disturbing. In support of Obama’s position in the Leal case, Justice Stephen Breyer expressed it appallingly clearly: “Should Senator Leahy’s bill become law by the end of September (when we would consider the petition in the ordinary course), this Court would almost certainly grant the petition….”

In other words, the Supreme Court should upend 16 years of due process of justice on the basis of a belief – indeed, not even a belief but a mere hope – that a bill for which not a single hearing has been held will somehow become law within months. This is, to put it bluntly, nonsense. You may as well tell the IRS you didn’t pay your full bill because some congressman promised to pass a tax cut by year’s end.

As the five-member majority wrote in its decision denying the administration’s last-minute appeal, “Our task is to rule on what the law is, not what it might eventually be.” That logic is so self-evident as to be almost a tautology. For Breyer and three colleagues to claim otherwise is a sign that their entire approach to judging has become seriously unmoored from all constitutional restraints.

There’s one last, suspiciously interesting twist to this case, courtesy of Cliff Kincaid of Accuracy in Media. Leal’s attorney is Sandra Babcock, a Northwestern University law professor, funded by the Mexican government, who repeatedly has teamed with her Northwestern colleague, Bernadine Dohrn – former terrorist and wife of infamous Weather Underground leader Bill Ayers – to push for greater U.S. adoption of international law. In the past, those two have worked directly with disgraced former Marxist and White House aide Van Jones, and with State Department counsel Harold Koh, on these issues. In that light, the president’s attempt to intervene in the Leal case looks even more radical.