Birthright Citizenship and Presidential Power

The Halloween season is traditionally a time for scares and surprises in the United States. This year, President Trump got in on the act, floating a truly shocking idea on October 30. In an interview with Axios, the President declared that he intended to sign an executive order ending birthright citizenship in the United States. Before diving into the law, it is worth pausing to consider what a  breathtaking idea it is that the President could unilaterally determine who counts as a citizen.

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A Pyrrhic Victory? Iran obtains Provisional Measures against the United States

Last week Iran scored what has widely been reported to be an important legal victory over the United States. The International Court of Justice ordered provisional measures that prohibit key elements of the new administration’s efforts to wage economic warfare against Iran. The ruling is noteworthy for the clarity and stringency of its argument, but also because nobody expects it to alter the existing dispute between the parties in the slightest.

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"For the Court, it could be…": Electing Constitutional Judges in the US and Germany

With the nomination of Brett Kavanaugh, President Trump will shape the U.S. Supreme Court for decades. A comparison with the legal framework for the appointment of constitutional court judges in Germany shows the respective weaknesses of the US system in safeguarding judicial independence.

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Is the U.S. President Above the Law?

On June 4, President Trump tweeted that the President has the absolute right to issue pardons, even to himself. The President’s claim came close on the heels of the New York Times’s publication of a letter two White House attorneys had sent months earlier to Robert Mueller, the Special Counsel appointed to investigate links between Trump’s election campaign and the Russian government. The lawyers argued that the President’s firing of FBI Director James Comey could not constitute obstruction of justice, because the President is the chief law enforcement officer of the nation, and can fire the FBI Director for any reason at all. Can it really be the case that the President of the United States is above the law?

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The Phantom Insurrection: how Counter-Insurgency Theory Became a Paradigm of Governing

We are constantly struggling to make sense of the politics of our time, to understand what links various developments and phenomena that we witness. Bernard E. Harcourt has written a book that offers such an interpretation. In "The Counterrevolution" he explains how the massive collection of data and the increasing militarization of police go together, how the changes in military and foreign policy relate to domestic US politics since 9/11, and where to place President Trump in this picture. At the occasion of his visit in Berlin, Bernard Harcourt was willing to give this brief interview and speak about the theses of his book.

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The Federal Rainbow Dream: On Free Movement of Gay Spouses under EU Law

After a pretty disappointing and self-contradictory judgement on the wedding cakes delivered yesterday by the US Supreme Court, the CJEU came up today with the long-awaited decision in the Coman case – putting a thick full stop on a long debate about the interpretation of the term ‘spouses’ under the EU Free Movement Directive. In short, the Court held that the term does cover spouses of the same sex moving to an EU Member State where a gay marriage remains unrecognized. This simple YES is a huge step forward in federalizing the EU constitutional space in a time of multiple crises.

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Corporate Liability for Extraterritorial Human Rights Violations – the US in Retreat?

Last week, in Jesner v. Arab Bank, the United States Supreme Court decided that foreign corporations cannot be sued in federal court for human rights violations that occurred outside the US and have no substantial link to the US. The decision is the latest piece of an ongoing debate around the question: just how far can the US meddle in affairs of other countries? More pragmatically, it makes international human rights litigation – a successful counterpart to diplomatic intervention in the past – much more difficult today.

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