Why Does “Legitimacy” Matter in U.S. Nationality Law?

Photo Credit: Maryland GovPics 

By: Betsy L. Fisher

 

Update: Just after publication, the Supreme Court ruled in Sessions v. Morales-Santana that gender-based distinctions in U.S. nationality law violate the Fifth Amendment’s Equal Protection Clause.

 

Bad law makes bad cases. The recent case of Miranda v. Sessions, clearly demonstrates this principle. In Miranda v. Sessions, an individual with close ties to the United States, whose mother naturalized while he was still a minor, was denied U.S. citizenship because of reliance on antiquated notions of parental responsibility and gender roles. Although U.S. case law largely prohibits discrimination on the basis of gender stereotypes, and the international community is working to eliminate gender discrimination in nationality law, Miranda illustrates a lingering form of discrimination in U.S. nationality law.

Despite the court’s attention to issues of res judicata, the broader question raised by the case is: what role do findings of “legitimacy” have in nationality law? “Legitimacy” is a legal concept defining the legal rights and obligations of children to fathers; traditionally, a child of unmarried parents did not have a legal relationship with the child’s biological father. But in the day of DNA testing, why do such distinctions still matter? Continue reading Why Does “Legitimacy” Matter in U.S. Nationality Law?

MUCH ADO ABOUT NOTHING: LEGAL REFLECTIONS ON THE UNITED STATES ‘DRONES PLAYBOOK’:PART II

drones

Photo Credit: Doran

Part One available here

Guest Post by: Arthad Kurlekar & Arindrajit Basu

 

In the previous post, we discussed the legal implications of the recently declassified Presidential Policy Guidelines (PPG) in terms of its conformity with the distinction principle in International Humanitarian Law (IHL). It has been argued that the rise of transnational terrorism itself has altered the contours of the Laws of Armed Conflict and thus the legal regime governing counter-measures. Nevertheless we firmly believe that the survival of a global legal order must be predicated on the guarantee of certain principles that cannot be shirked regardless of the circumstances. The principle of sovereign equality of all states, as enshrined in the United Nations Charter is one such non-derogable principle. The PPG violates the principle of sovereign equality by imposing an obligation on other states, higher than that recognised under international law and also that it violates the principle of self-defense under Article 51 of the UN Charter.

SOVEREIGN EQUALITY

The justification of lethal action against High Value Targets (HVTs) who pose an imminent threat to the US also must be questioned for its violation of sovereignty. Sovereign equality mandates that states be internally bound by their domestic legal order and conform to the tenets of international law, not the laws or views of another state. Proponents of targeting argue that a state is required to curb acts of terrorism within their borders, failing which outside states, like the United States, have the power to conduct targeting in self-defense. Such an argument imposes an inequitable obligation to prevent terrorism. Under international law, this obligation extends as far as the taking all ‘practicable measures’ towards the elimination of the threat. The International Court of Justice (ICJ) has confirmed this in the Bosnia Genocide Case, enunciating that the obligation is one of conduct and not of result. Professor Kimberley Trapp has argued for the evaluation of this due diligence standard on a two-pronged test, that of knowledge and capacity. So long as a state is aware of the terrorist operation and is taking reasonable steps given its resources and institutional capacity, it has not breached its obligation.

Continue reading MUCH ADO ABOUT NOTHING: LEGAL REFLECTIONS ON THE UNITED STATES ‘DRONES PLAYBOOK’:PART II

The Rust Belt Lost Clinton the Election, and Free Trade is Why

rust

Photo Credit: Bob Jagendorf

By: Jessica M. Rose

America and the world are staring down the barrel of a Trump presidency – and it’s because Democrats failed to execute a principle they are supposed to be known for.

The states that gave the election to Trump were Rust Belt states: Pennsylvania, Michigan, and Wisconsin. These states were part of what were called the Clinton firewall, that she needed – and expected – to win in order to go on to win the presidency. I am of course not making the claim that xenophobia, islamophobia, racism, and sexism among other issues played no terrifying role in the election. The crucial states in question, however, were blue for Obama and have been for decades; Pennsylvania and Michigan haven’t been red since 1988, and Wisconsin hasn’t been red since 1984.

Michigan and Wisconsin, according to the best pollsters out there at Five Thirty Eight, were not supposed to even be in play this time. Their best information had her chances for Wisconsin at 83.5%, for Michigan at 78.9%, and for Pennsylvania at 77%. To be fair, if she lost them, she lost them by a tiny margin: at the time of writing, Trump had 47.9% of the vote and Clinton 46.9% in Wisconsin with 95% of the vote in, and Michigan was still too close to call with a 0.3% difference between the candidates. But these states weren’t supposed to be margin-of-error states; Clinton was supposed to have them in the bag.

Continue reading The Rust Belt Lost Clinton the Election, and Free Trade is Why