07 February 2017
Visa für Aleppo
Mit einem dramatischen Appell an die Verantwortung Europas will der Generalanwalt am Europäischen Gerichtshof Paolo Mengozzi dem Versagen der EU-Mitgliedsstaaten in der Flüchtlingskrise abhelfen. Nach seinem Verständnis sind sie europarechtlich verpflichtet, akut von Folter oder unmenschlicher Behandlung bedrohten Flüchtlingen aus Aleppo Visa auszustellen. Continue reading >>
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“Unrichtiges Recht” in Slovakia? The Radbruch Formula and Positive Law from the Nineties
While the Slovak Parliament might not be the most obvious place to look for a (modest) rerun of the classic legal dilemma about unjust laws, constitutional enthusiasts might want to tune in for once, as the National Council (the official name of the assembly), was in recent weeks the site of a reinvigorated effort to invalidate amnesties granted in the late 1990s by the once aspiring authoritarian Vladimír Mečiar. The government has not yet reached a consensus but the impending vote holds more promise than the previous seven attempts. Continue reading >>“Trump’s statements express the same kind of populist opposition to constitutional court judges we have seen elsewhere”
Harvard professor Mark Tushnet on the Trump administration's attacks against the judiciary and whether or not the rule of law is under threat from the new US President. Continue reading >>06 February 2017
In eigener Sache: Assistant Editor gesucht!
Wiebke Fröhlich ist seit über einem Jahr als Redaktionsassistentin am Betrieb [...] Continue reading >>
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The ‘Elegant Way’ of the Constitution
The Miller judgment will be famous for its affirmation of the rule of law as against an unaccountable and overreaching executive. But it should also be remembered for marking the recognition by the UK courts of the systematic nature of the British constitution. Continue reading >>
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05 February 2017
Marine Le Pen’s Constitutional Programme on the European Union: Use, Misuse and Abuse of Referenda
Marine Le Pen, the far-right candidate for President of France, was asked in an interview about her constitutional programme should she be elected in May. Her answer can be summarised in one word: referenda. One of them would be, of course, about “Frexit”, the other would include a vast set of amendments to the French Constitution and would take place just after the legislative elections. That, however, would not most likely not be the end of it. Continue reading >>04 February 2017
Trump’s Muslim Ban and its Constitutional Limits
The dramatic executive orders of the newly inaugurated President of the United States, Donald Trump, including, most infamously, his executive order excluding Syrian refugees from entry into the United States, and popularly known as the “Muslim ban,” has raised not only hackles among many outside observers, but also questions about the legality of these orders. The short answer is that some of the matters set out in his executive orders, including those affecting refugees, are almost certainly legal, while other aspects of those orders raise significant issues under the United States constitution. Continue reading >>03 February 2017
The Miller decision: Legal constitutionalism ends not with a bang, but a whimper
Miller was essentially a case which was argued before, and decided by, the court on the basis of the English Imperial constitutional tradition forged in the Victorian age. This judgment has made the political constitution of the devolved United Kingdom as a whole more unstable, more brittle, more fragile and more likely to break-up precisely because it denies the devolved nations’ institutions any legal right to participate in the Brexit process. Continue reading >>
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02 February 2017
Geschlossenheit in welchem Sinne? Europäische Verfassungsfragen beim Treffen in Malta
Beim Gipfel von Malta will die EU in punkto Migrationspolitik Geschlossenheit demonstrieren - auch gegenüber US-Präsident Trump. Die USA schultern aber den Löwenanteil der Kosten für das UN-Flüchtlingshilfswerk und für das Resettlement von Flüchtlingen. Beides unterstreicht, dass es nicht ausreichend ist, die USA an den Pranger zu stellen. Europa als ein Verbund vieler der wohlhabendsten Staaten der Welt trifft eine moralische Pflicht, gerade in so einer Situation die Idee des Flüchtlingsschutzes als einer minimalen weltbürgerlichen Solidarität aufrechtzuerhalten. Aber auch schon die von Ratspräsident Tusk betonte „Wahrung des internationalen Rechts“ macht Europa Vorgaben, was die Grenzsicherung angeht. Continue reading >>An Instruction Manual to Stop a Judicial Rebellion (before it is too late, of course)
2016 was not a good year for the EU. Among many other things, one of the EU’s proudest achievements, its judiciary, has shown the first signs of worrying instability: In Germany, Denmark and Italy, high-level courts have openly and harshly declared their dissatisfaction with rulings by the European Court of Justice. I would not say that these are nationalist overreactions. These are worrying (and I would add justified) signs of something going wrong. Continue reading >>What is the Situation of Constitutional Jurisdiction in Europe? Worrying News from Spain
Although the situation in Poland is unique, the speed at which the Polish Constitutional Court has been subjugated should make the rest of us think about the regulations concerning our Constitutional jurisdictions and about the behaviour of other political actors with respect to them. Recent developments in Spain have led me to these reflections, and I would like to describe them briefly here to sound the alarm about what happens in other European countries more discretely than in Poland, but also very disturbingly. Continue reading >>01 February 2017
Sanctuary Cities and the Trump Administration
The current clash between the Trump administration and the so-called “sanctuary cities” on immigration is not qualitatively new. There have been other attempts by the local level in the United States to position itself as an alternative political force vis-à-vis the federal government. Due to the political style of the new administration and all the drama attached to it, the conflict may, however, reach new simmering heights. It may also be more dangerous for the social cohesion of the United States as a political entity. Continue reading >>
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‘We Don’t Need No Constitution’ – On a Sad EU Membership Anniversary in Romania
These are troubled constitutional times in Romania. The newly elected government led by the corruption-ridden PSD party is pushing for legislative changes to make corruption offences virtually unpunishable by means of dubious Emergency Ordinances. A pending appeal before the Constitutional Court seeks to have legal provisions which prohibit persons with criminal convictions to occupy public positions in the Government declared unconstitutional. These attempts are met with resistance by the President who calls for an anti-corruption referendum. Continue reading >>31 January 2017
“A Terrible Signal that International Law can be Flaunted without Consequence”
If refugees are detained or turned away for reasons of religion or country of origin, that is a case of discrimination clearly prohibited by international refugee law. In theory any other state party to the Refugee Protocol can take the US to the International Court of Justice. Will Chancellor Merkel or perhaps Canadian Prime Minister Trudeau – each of whom has spoken up for refugees in the current context – have the courage to make that referral? Continue reading >>The Italian Constitutional Court in re Taricco: “Gauweiler in the Roman Campagna”
The Italian Constitutional Court’s Tarrico judgement is worded in apparently much milder terms than the BVerfG’s preliminary reference in Gauweiler. The content of the ICC’s decision, though, seems loaded with much more dynamite. In Gauweiler, the CJEU was called to interpret an act of another EU institution. In Taricco, the CJEU is called to reinterpret its own decision, after the ICC essentially asked “please, say it again?” Continue reading >>
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New Constitutional Amendment Proposal in Turkey: A Threat to Pluralistic Democracy!
Turkey will hold a referendum on a fundamental constitutional reform, probably in April. The designed political regime is neither parliamentarism nor presidentialism. Although the government calls the new political regime as a “Turkish type of presidentialism” with a populist discourse; in reality, the new regime will bring a kind of “delegative democracy”, which is seen usually in the South American, sub-Saharan African and in central Asian countries. Continue reading >>
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30 January 2017
Legal Disintegration? The Ruling of the Danish Supreme Court in AJOS
On December 6, 2016, the Supreme Court of Denmark (SCDK) ruled in the Ajos case. The ruling will be read, remembered and taught as an example of defiance of clear guidelines from the Court of Justice of the European Union (CJEU) by the highest court in Denmark. EU law is an exterior phenomenon but part and parcel of Danish law. It follows that switching it off, as in Ajos, necessarily entails applying one law by breaking another. That is not a viable path for any legal system taking supranational obligations seriously. Continue reading >>Stable Majorities in Italy: an Interview with FRANCESCO CLEMENTI
Last week, the Italian Constitutional Court has declared the electoral law reform constitutional in most respects. Francesco Clementi explains why it will still be extremely difficult to form stable majorities in both chambers of Parliament. Continue reading >>
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President Trump and the Foreign Emoluments Clause
The election of Donald Trump to the American presidency has, among other things, brought newfound attention to one of the sleepier provisions of the U.S. Constitution. The foreign emoluments clause provides that “no person holding any office of profit or trust under [the United States], shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” Within 72 hours of his inauguration, the nonprofit government ethics group CREW has filed a constitutional complaint against President Trump in federal court. The President shot back the same day, calling the suit meritless. Does CREW have a case? Continue reading >>28 January 2017