law of nations

The Law of Nations, Sovereign Power Over Immigration, and Asylum: It’s Not As Clear As It Seems

Judge Jon S. Tigar of the U.S. District Court for the Northern District of California recently struck down a Trump administration policy barring asylum for those who do not enter through a legal port of entry.  Tigar’s major point is that Trump’s order conflicts with a statute that specifically says that those who entered illegally are eligible for asylum.  Despite this temporary ruling against the administration’s asylum order, a higher court will probably approve Trump’s action by invoking I.N.A.

What Did the Founders Think About International Law?

Last term, the Supreme Court postponed its decision in Kiobel v. Royal Dutch Petroleum, a case that initially asked whether the Alien Tort Statute—one of our oldest laws (1789), giving federal courts jurisdiction over lawsuits brought by aliens for actions “in violation of the law of nations”—applies to non-natural persons (that is, corporations). Instead, the Court called for further briefing and re-argument on a more basic question: Does the ATS allow U.S. courts to even hear lawsuits for violations of international law on foreign soil?

The ‘Law of Nations’ Is What It Was in 1789

One of our oldest laws, the Alien Tort Statute (1789), grants federal courts jurisdiction over lawsuits brought by aliens for actions “in violation of the law of nations.” Courts have differed in their method of interpreting this “law of nations” – an old way of saying “international law” – and thus in their decisions on what behavior violates it and the types of defendants who may be liable. Recent ATS litigation has thus ignited a debate over the role of judges in applying international law.

Use Only U.S. Law to Interpret the U.S. Constitution

This fall, the Supreme Court will hear two cases involving Eighth Amendment challenges to the sentencing of juveniles to life without parole (“LWOP”) – Graham v. Florida and Sullivan v. Florida – claims that these types of sentences are “cruel and unusual.”  Cato takes no position on the wisdom of these types of sentences, but when evaluating their constitutionality the Court should only consider American law.

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