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Sunday, January 11, 2026

TRIBUNAL DE JUSTICIA DE LA UE: CASO C-560/25 (I)

 

Recurso interpuesto el 20 de agosto de 2025 — Parlamento Europeo / Consejo de la Unión Europea

(Asunto C-560/25)

Lengua de procedimiento: inglés

Partes

Demandante: Parlamento Europeo (representantes: F. Drexler, L. Visaggio, A. Tamás, R. Crowe y O. Denkov, agentes)

Demandada: Consejo de la Unión Europea

Pretensiones de la parte demandante

Que se anule el Reglamento (UE) 2025/1106 del Consejo, 1 de 27 de mayo de 2025, por el que se crea el instrumento «Acción por la Seguridad de Europa (SAFE) mediante el Refuerzo de la Industria Europea de Defensa».

Que se mantengan los efectos de este Reglamento hasta su sustitución por un acto adoptado sobre una base jurídica apropiada.

Que se condene en costas al Consejo.

Motivos y principales alegaciones

En apoyo de su recurso, la parte demandante invoca dos motivos.

Primer motivo, basado en que el acto recurrido se basa incorrectamente en el artículo 122 TFUE. La demandante defiende que, en aplicación de la jurisprudencia pertinente sobre la elección de la base jurídica y atendiendo a su propósito y contenido, el acto recurrido no cumple los requisitos para sustentarse en el artículo 122 TFUE y, en cambio, se refiere al desarrollo de la política industrial de la Unión en el ámbito de la defensa con arreglo al artículo 173 TFUE.

Segundo motivo, basado en el incumplimiento de la obligación de motivación. La demandante alega que el Consejo, en infracción del artículo 296 TFUE, no ha expuesto debidamente los motivos que justifican la elección de la base jurídica para el acto recurrido. En particular, la fundamentación que da el Consejo no es suficiente para determinar si sería correcto basar el acto recurrido en el artículo 122 TFUE.

____________

1     DO L, 2025/1106, 28.5.2025.

United Nations Convention on Jurisdictional Immunities of States and Their Property

 

The States Parties to the present Convention

Considering that the jurisdictional immunities of States and their property are generally accepted as a principle of customary international law, 

Having in mind the principles of international law embodied in the Charter of the United Nations, 

Believing that an international convention on the jurisdictional immunities of States and their property would enhance the rule of law and legal certainty, particularly in dealings of States with natural or juridical persons, and would contribute to the codification and development of international law and the harmonization of practice in this area, 

Taking into account developments in State practice with regard to the jurisdictional immunities of States and their property, 

Affirming that the rules of customary international law continue to govern matters not regulated by the provisions of the present Convention

Have agreed as follows: 

 (...) 

Article 5 

State immunity 

A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention. 

Article 6 

Modalities for giving effect to State immunity 

1. A State shall give effect to State immunity under article 5 by refraining from exercising jurisdiction in a proceeding before its courts against another State and to that end shall ensure that its courts determine on their own initiative that the immunity of that other State under article 5 is respected. 2. A proceeding before a court of a State shall be considered to have been instituted against another State if that other State: (a) is named as a party to that proceeding; or (b) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other State. 

(...) 

Article 18 

State immunity from pre-judgment measures of constraint 

No pre-judgment measures of constraint, such as attachment or arrest, against property of a State may be taken in connection with a proceeding before a court of another State unless and except to the extent that: (a) the State has expressly consented to the taking of such measures as indicated: (i) by international agreement; (ii) by an arbitration agreement or in a written contract; or (iii) by a declaration before the court or by a written communication after a dispute between the parties has arisen; or (b) the State has allocated or earmarked property for the satisfaction of the claim which is the object of that proceeding. 

Article 19 

State immunity from post-judgment measures of constraint 

No post-judgment measures of constraint, such as attachment, arrest or execution, against property of a State may be taken in connection with a proceeding before a court of another State unless and except to the extent that: (a) the State has expressly consented to the taking of such measures as indicated: (i) by international agreement; (ii) by an arbitration agreement or in a written contract; or (iii) by a declaration before the court or by a written communication after a dispute between the parties has arisen; or (b) the State has allocated or earmarked property for the satisfaction of the claim which is the object of that proceeding; or (c) it has been established that the property is specifically in use or intended for use by the State for other than government non-commercial purposes and is in the territory of the State of the forum, provided that post- judgment measures of constraint may only be taken against property that has a connection with the entity against which the proceeding was directed. 

(...) 

 Article 21 

Specific categories of property 

1. The following categories, in particular, of property of a State shall not be considered as property specifically in use or intended for use by the State for other than government non-commercial purposes under article 19, subparagraph (c): (a) property, including any bank account, which is used or intended for use in the performance of the functions of the diplomatic mission of the State or its consular posts, special missions, missions to international organizations or delegations to organs of international organizations or to international conferences; (b) property of a military character or used or intended for use in the performance of military functions; (c) property of the central bank or other monetary authority of the State; (d) property forming part of the cultural heritage of the State or part of its archives and not placed or intended to be placed on sale; (e) property forming part of an exhibition of objects of scientific, cultural or historical interest and not placed or intended to be placed on sale. 2. Paragraph 1 is without prejudice to article 18 and article 19, subparagraphs (a) and (b).

https://www.dipublico.org/3370/convencion-de-las-naciones-unidas-sobre-las-inmunidades-jurisdiccionales-de-los-estados-y-de-sus-bienes/ 

Artículo 18 

Inmunidad del Estado respecto de medidas coercitivas anteriores al fallo 

No podrán adoptarse contra bienes de un Estado, en relación con un proceso ante un tribunal de otro Estado, medidas coercitivas anteriores al fallo como el embargo y la ejecución, sino en los casos y dentro de los límites siguientes: a) cuando el Estado haya consentido expresamente en la adopción de tales medidas, en los términos indicados: i) por acuerdo internacional; ii) por un acuerdo de arbitraje en un contrato escrito; o iii) por una declaración ante el tribunal o por una comunicación escrita después de haber surgido una controversia entre las partes; o b) cuando el Estado haya asignado o destinado bienes a la satisfacción de la demanda objeto de ese proceso.

Saturday, January 10, 2026

ArtII.S2.C1.1.11 Presidential Power and Commander in Chief Clause

Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

The President’s power with regard to the armed forces has long been debated. In defense of executive action in Indochina, the Legal Adviser of the State Department, in a widely circulated document, contended:

Under the Constitution, the President, in addition to being Chief Executive, is Commander in Chief of the Army and Navy. He holds the prime responsibility for the conduct of United States foreign relations. These duties carry very broad powers, including the power to deploy American forces abroad and commit them to military operations when the President deems such action necessary to maintain the security and defense of the United States.

In 1787 the world was a far larger place, and the framers probably had in mind attacks upon the United States. In the 20th century, the world has grown much smaller. An attack on a country far from our shores can impinge directly on the Nation’s security. In the SEATO treaty, for example, it is formally declared that an armed attack against Viet Nam would endanger the peace and security of the United States.

Under our Constitution it is the President who must decide when an armed attack has occurred. He has also the constitutional responsibility for determining what measures of defense are required when the peace and safety of the United States are endangered. If he considers that deployment of U.S. forces to South Viet Nam is required, and that military measures against the source of Communist aggression in North Viet Nam are necessary, he is constitutionally empowered to take those measures.1

Opponents of such expanded presidential powers have contended, however, that the authority to initiate war was not divided between the Executive and Congress but was vested exclusively in Congress. The President had the duty and the power to repel sudden attacks and act in other emergencies, and in his role as Commander in Chief he was empowered to direct the armed forces for any purpose specified by Congress.2 Though Congress asserted itself in some respects, it never really managed to confront the President’s power with any sort of effective limitation, until the 1970s.

 Leonard C. Meeker, The Legality of United States Participation in the Defense of Viet Nam, 54 Dep’t State Bull. 474, 484–485 (1966). See also John N. Moore, The National Executive and the Use of the Armed Forces Abroad, 21 Naval War College Rev. 28 (1969); Quincy Wright, The Power of the Executive to Use Military Forces Abroad, 10 Va. J. Int. L. 43 (1969); Documents Relating to the War Powers of Congress, The President’s Authority as Commander in Chief and the War in Indochina, S. Comm. on Foreign Rels., 91st Cong. 1 (1970) (Under Secretary of State Katzenbach), 90 (J. Stevenson, Legal Adviser, Department of State), 120 (Professor Moore), 175 (Asst Att’y Gen. Rehnquist).

E.g., F. Wormuth & E. Firmage, To Chain the Dog of War (1989), F.J. Ely, War and Responsibility: Constitutional Lessons of the Vietnam War and its Aftermath (1993); U.S. Commitments to Foreign Powers: Hearings Before the S. Comm. on Foreign Rels., 90th Cong. 9 (1967) (Bartlett); War Powers Legislation: Hearings Before the S. Comm. on Foreign Rels., 92d Cong. 7 (1971).

 https://constitution.congress.gov/browse/essay/artII-S2-C1-1-11/ALDE_00013473/

 

This is about wether the President as Commander in Chief of the Army and Navy can order an act of agression against a foreign country that is -as signatory of NATO- an ally of the United States. It should be clear that he can not constitutionally order that.

 "But, even supposing, for a moment, that our laws had required an entry of The Apollon, in her transit, does it follow that the power to arrest her was meant to be given, after she had passed into the exclusive territory of a foreign nation? We think not. It would be monstrous to suppose that our revenue officers were authorized to enter into foreign ports and territories, for the purpose of seizing vessels which had offended against our laws. It cannot be presumed that congress would voluntarily justify such a clear violation of the laws of nations." 

The Apollon, 9 Wheat. 362, 370-371 (1824)

United States v. Alvarez-Machain, 504 U.S. 655 (1992) (DISSENTING OPINION: STEVENS,BLACKMUN AND O'CONNOR)

Friday, January 9, 2026

United States v. Alvarez-Machain, 504 U.S. 655 (1992) (DISSENTING OPINION: STEVENS,BLACKMUN AND O'CONNOR)

JUSTICE STEVENS, with whom JUSTICE BLACKMUN and JUSTICE O'CONNOR join, dissenting.

The Court correctly observes that this case raises a question of first impression. See ante, at 659. The case is unique for several reasons. It does not involve an ordinary abduction by a private kidnaper, or bounty hunter, as in Ker v. Illinois,119 U. S. 436 (1886); nor does it involve the apprehension of an American fugitive who committed a crime in one State and sought asylum in another, as in Frisbie v. Collins,342 U. S. 519 (1952). Rather, it involves this country's abduction of another country's citizen; it also involves a violation of the territorial integrity of that other country, with which this country has signed an extradition treaty. A Mexican citizen was kidnaped in Mexico and charged with a crime committed in Mexico; his offense allegedly violated both Mexican and American law. Mexico has formally 
 sels as well as domestic within the territorial waters of the United States, and that therefore the carrying of intoxicating liquors by foreign passenger ships violated those laws. A treaty was then successfully negotiated, giving the United States the right to seizure beyond the 3-mile limit (which it desired), and giving British passenger ships the right to bring liquor into United States waters so long as the liquor supply was sealed while in those waters (which Great Britain desired). Cook v. United States, supra.

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demanded on at least two separate occasions 1 that he be returned to Mexico and has represented that he will be prosecuted and, if convicted, punished for his offense.2 It is clear that Mexico's demand must be honored if this official abduction violated the 1978 Extradition Treaty between the United States and Mexico. In my opinion, a fair reading of the treaty in light of our decision in United States v. Rauscher,119 U. S. 407 (1886), and applicable principles of international law, leads inexorably to the conclusion that the District Court, United States v. Caro-Quintero, 745 F. Supp. 599 (CD Cal. 1990), and the Court of Appeals for the Ninth Circuit, 946 F.2d 1466 (1991) (per curiam), correctly construed that instrument. I The extradition treaty with Mexico3 is a comprehensive document containing 23 articles and an appendix listing the

1 The abduction of respondent occurred on April 2, 1990. United States v. Caro-Quintero, 745 F. Supp. 599,603 (CD Cal. 1990). Mexico responded quickly and unequivocally. Tr. of Oral Arg. 33; Brief for 

 Respondent 3. On April 18, 1990, Mexico requested an official report on the role of the United States in the abduction, and on May 16, 1990, and July 19, 1990, it sent diplomatic notes of protest from the Embassy of Mexico to the United States Department of State. See Brief for United Mexican States as Amicus Curiae (Mexican Amicus) 5-6; App. to Mexican Amicus 1a-24a. In the May 16th note, Mexico said that it believed that the abduction was "carried out with the knowledge of persons working for the U. S. government, in violation of the procedure established in the extradition treaty in force between the two countries," id., at 5a, and in the July 19th note, it requested the provisional arrest and extradition of the law enforcement agents allegedly involved in the abduction. Id., at 9a-15a.

2 Mexico has already tried a number of members involved in the conspiracy that resulted in the murder of the Drug Enforcement Administration agent. For example, Rafael Caro-Quintero, a co-conspirator of AlvarezMachain in this case, has already been imprisoned in Mexico on a 40-year sentence. See Brief for Lawyers Committee for Human Rights as Amicus Curiae 4.

3 Extradition Treaty, May 4, 1978, [1979] United States-United Mexican States, 31 U. S. T. 5059, T. I. A. S. No. 9656 (Treaty or Extradition Treaty).

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extraditable offenses covered by the agreement. The parties announced their purpose in the preamble: The two governments desire "to cooperate more closely in the fight against crime and, to this end, to mutually render better assistance in matters of extradition." 4 From the preamble, through the description of the parties' obligations with respect to offenses committed within as well as beyond the territory of a requesting party,5 the delineation of the procedures and evidentiary requirements for extradition,6 the spe- 4 Id., at 5061. In construing a treaty, the Court has the "responsibility to give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties." Air France v. Saks, 470 U. S. 392, 399 (1985). It is difficult to see how an interpretation that encourages unilateral action could foster cooperation and mutual assistance-the stated goals of the Treaty. See also Presidential Letter of Transmittal attached to Senate Advice and Consent 3 (Treaty would "make a significant contribution to international cooperation in law enforcement").

Extradition treaties prevent international conflict by providing agreed upon standards so that the parties may cooperate and avoid retaliatory invasions of territorial sovereignty. According to one writer, before extradition treaties became common, European states often granted asylum to fugitives from other states, with the result that "a sovereign could enforce the return of fugitives only by force of arms .... Extradition as an inducement to peaceful relations and friendly cooperation between states remained of little practical significance until after World War I." M. Bassiouni, International Extradition and World Public Order 6 (1974). This same writer explained that such treaties further the purpose of international law, which is "designed to protect the sovereignty and territorial integrity of states, and [to] restrict impermissible state conduct." 1 M. Bassiouni, International Extradition: United States Law and Practice, ch. 5, § 2, p. 194 (2d rev. ed. 1987).

 The object of reducing conflict by promoting cooperation explains why extradition treaties do not prohibit informal consensual delivery of fugitives, but why they do prohibit state-sponsored abductions. See Restatement (Third) of Foreign Relations (Restatement) § 432, and Comments a-c (1987).

5 Treaty, 31 U. S. T., at 5062, 5063 (Articles 2 and 4).6Id., at 5063, 5064-5065, 5066-5068, 5069 (Articles 3, 7, 10, 12, and 13).

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cial provisions for political offenses and capital punishment,7 and other details, the Treaty appears to have been designed to cover the entire subject of extradition. Thus, Article 22, entitled "Scope of Application," states that the "Treaty shall apply to offenses specified in Article 2 committed before and after this Treaty enters into force," and Article 2 directs that "[e]xtradition shall take place, subject to this Treaty, for willful acts which fall within any of [the extraditable offenses listed in] the clauses of the Appendix." 8 Moreover, as noted by the Court, ante, at 663, Article 9 expressly provides that neither contracting party is bound to deliver up its own nationals, although it may do so in its discretion, but if it does not do so, it "shall submit the case to its competent authorities for purposes of prosecution." 9

 The Government's claim that the Treaty is not exclusive, but permits forcible governmental kidnaping, would transform these, and other, provisions into little more than verbiage. For example, provisions requiring "sufficient" evidence to grant extradition (Art. 3), withholding extradition for political or military offenses (Art. 5), withholding extradition when the person sought has already been tried (Art. 6), withholding extradition when the statute of limitations for the crime has lapsed (Art. 7), and granting the requested country discretion to refuse to extradite an individual who would face the death penalty in the requesting country (Art. 8), would serve little purpose if the requesting country could simply kidnap the person. As the Court of Appeals for the Ninth Circuit recognized in a related case, "[e]ach of these provisions would be utterly frustrated if a kidnapping were held to be a permissible course of governmental conduct." United States v. Verdugo-Urquidez, 939 F.2d 1341, 1349 (1991). In addition, all of these provisions "only make sense if they are understood as requiring each treaty signatory to

7Id., at 5063-5064, 5065 (Articles 5 and 8). 8Id., at 5073-5074, 5062.

9Id., at 5065.

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comply with those procedures whenever it wishes to obtain jurisdiction over an individual who is located in another treaty nation." Id., at 1351. It is true, as the Court notes, that there is no express promise by either party to refrain from forcible abductions in the territory of the other nation. See ante, at 664, 665-666. Relying on that omission,lO the Court, in effect, concludes that the Treaty merely creates an optional method of obtaining jurisdiction over alleged offenders, and that the parties silently reserved the right to resort to self-help whenever they deem force more expeditious than legal process.ll If the United States, for example, thought it more expedient to torture or simply to execute a person rather than to attempt extradition, these options would be equally available because they, too, were not explicitly prohibited by the Treaty.12

10 The Court resorts to the same method of analysis as did the dissent in United States v. Rauscher, 119 U. S. 407 (1886). Chief Justice Waite would only recognize an explicit provision, and in the absence of one, he concluded that the treaty did not require that a person be tried only for the offense for which he had been extradited: "The treaty requires a delivery up to justice, on demand, of those accused of certain crimes, but says nothing about what shall be done with them after the delivery has been made. It might have provided that they should not be tried for any other offences than those for which they were surrendered, but it has not." Id., at 434. That approach was rejected by the Court in Rauscher and should also be rejected by the Court here.

 11 To make the point more starkly, the Court has, in effect, written into Article 9 a new provision, which says: "Notwithstanding paragraphs 1 and 2 of this Article, either Contracting Party can, without the consent of the other, abduct nationals from the territory of one Party to be tried in the territory of the other."

12 It is ironic that the United States has attempted to justify its unilateral action based on the kidnaping, torture, and murder of a federal agent by authorizing the kidnaping of respondent, for which the American law enforcement agents who participated have now been charged by Mexico. See App. to Mexican Amicus 5a. This goes to my earlier point, see n. 4, supra, that extradition treaties promote harmonious relations by providing for the orderly surrender of a person by one state to another, and without such treaties, resort to force often followed.

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That, however, is a highly improbable interpretation of a consensual agreement,13 which on its face appears to have been intended to set forth comprehensive and exclusive rules concerning the subject of extradition.14 In my opinion, "the manifest scope and object of the treaty itself," Rauscher, 119 U. S., at 422, plainly imply a mutual undertaking to respect the territorial integrity of the other contracting party. That opinion is confirmed by a consideration of the "legal context" in which the Treaty was negotiated.15 Cannon v. University of Chicago, 441 U. S. 677, 699 (1979).

 II

In Rauscher, the Court construed an extradition treaty that was far less comprehensive than the 1978 Treaty with Mexico. The 1842 treaty with Great Britain determined the boundary between the United States and Canada, provided for the suppression of the African slave trade, and also con- 13 This Court has previously described a treaty as generally "in its nature a contract between two nations," Foster v. Neilson, 2 Pet. 253, 314 (1829); see Rauscher, 119 U. S., at 418; it is also in this country the law of the land. 2 Pet., at 314; 119 U. S., at 418-419. 14 Mexico's understanding is that "[t]he extradition treaty governs comprehensively the delivery of all persons for trial in the requesting state 'for an offense committed outside the territory of the requesting Party.''' Brief for United Mexican States as Amicus Curiae, O. T. 1991, No. 91-670, p. 6. And Canada, with whom the United States also shares a large border and with whom the United States also has an extradition treaty, understands the treaty to be "the exclusive means for a requesting government to obtain ... a removal" of a person from its territory, unless a nation otherwise gives its consent. Brief for Government of Canada as Amicus Curiae 4.

15 The United States has offered no evidence from the negotiating record, ratification process, or later communications with Mexico to support the suggestion that a different understanding with Mexico was reached. See Bassiouni, International Extradition: United States Law and Practice, ch. 2, §4.3, at 82 ("Negotiations, preparatory works, and diplomatic correspondence are an integral part of thEe] surrounding 

 circumstances, and [are] often relied on by courts in ascertaining the intentions of the parties") (footnote omitted).


676 tained one paragraph authorizing the extradition of fugitives "in certain cases." 8 Stat. 576. In Article X, each nation agreed to "deliver up to justice all persons" properly charged with anyone of seven specific crimes, including murder. 119 U. S., at 421.16 After Rauscher had been extradited for murder, he was charged with the lesser offense of inflicting cruel and unusual punishment on a member of the crew of a vessel on the high seas. Although the treaty did not purport to place any limit on the jurisdiction of the demanding state after acquiring custody of the fugitive, this Court held that he could not be tried for any offense other than murder.17 Thus, the treaty constituted the exclusive means by which

16 Article X of the Treaty provided:

 "It is agreed that the United States and Her Britannic Majesty shall, upon mutual requisitions by them, or their ministers, officers, or authorities, respectively made, deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other: provided that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offence had there been committed: and the respective judges and other magistrates of the two Governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper Executive authority, that a warrant may issue for the surrender of such fugitive. The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition, and receives the fugitive." 8 Stat. 576.

17The doctrine defined by the Court in Rauscher-that a person can be tried only for the crime for which he had been extradited-has come to be known as the "doctrine of specialty."

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the United States could obtain jurisdiction over a defendant within the territorial jurisdiction of Great Britain.

The Court noted that the treaty included several specific provisions, such as the crimes for which one could be extradited, the process by which the extradition was to be carried out, and even the evidence that was to be produced, and concluded that "the fair purpose of the treaty is, that the person shall be delivered up to be tried for that offence and for no other." Id., at 423. The Court reasoned that it did not make sense for the treaty to provide such specifics only to have the person "pas[s] into the hands of the country which charges him with the offence, free from all the positive requirements and just implications of the treaty under which the transfer of his person takes place." Id., at 421. To interpret the treaty in a contrary way would mean that a country could request extradition of a person for one of the seven crimes covered by the treaty, and then try the person for another crime, such as a political crime, which was clearly not covered by the treaty; this result, the Court concluded, was clearly contrary to the intent of the parties and the purpose of the treaty. Rejecting an argument that the sole purpose of Article X was to provide a procedure for the transfer of an individual from the jurisdiction of one sovereign to another, the Court stated:
"No such view of solemn public treaties between the great nations of the earth can be sustained by a tribunal called upon to give judicial construction to them.
"The opposite view has been attempted to be maintained in this country upon the ground that there is no express limitation in the treaty of the right of the country in which the offence was committed to try the person for the crime alone for which he was extradited, and that once being within the jurisdiction of that country, no matter by what contrivance or fraud or by what pretence of establishing a charge provided for by the extra-678
dition treaty he may have been brought within the jurisdiction, he is, when here, liable to be tried for any offence against the laws as though arrested here originally. This proposition of the absence of express restriction in the treaty of the right to try him for other offences than that for which he was extradited, is met by the manifest scope and object of the treaty itself." Id., at 422.
Thus, the Extradition Treaty, as understood in the context of cases that have addressed similar issues, suffices to protect the defendant from prosecution despite the absence of any express language in the Treaty itself purporting to limit this Nation's power to prosecute a defendant over whom it had lawfully acquired jurisdiction.18 Although the Court's conclusion in Rauscher was supported by a number of judicial precedents, the holdings in these cases were not nearly as uniform 19 as the consensus of international opinion that condemns one nation's violation of the territorial integrity of a friendly neighbor.20 It is 18 In its opinion, the Court suggests that the result in Rauscher was dictated by the fact that two federal statutes had imposed the doctrine of specialty upon extradition treaties. Ante, at 660. The two cited statutes, however, do not contain any language purporting to limit the jurisdiction of the court; rather, they merely provide for protection of the accused pending trial.19 In fact, both parties noted in their respective briefs several authorities that had held that a person could be tried for an offense other than the one for which he had been extradited. See Brief for United States in United States v. Rauscher, O. T. 1885, No. 1249, pp. 6-10 (citing United States v. Caldwell, 8 Blatchford 131 (SDNY 1871); United States v. Lawrence, 13 Blatchford 295 (SDNY 1876); Adriance v. Lagrave, 59 N. Y. 110 (1874)); Brief for Respondent in United States v. Rauscher, O. T. 1885, No. 1249, pp. 8-16.20 This principle is embodied in Article 17 of the Charter of the Organization of American States, Apr. 30, 1948,2 U. S. T. 2394, T. 1. A. S. No. 2361, as amended by the Protocol of Buenos Aires, Feb. 27, 1967,21 U. S. T. 607, T. 1. A. S. No. 6847, as well as numerous provisions of the United Nations Charter, June 26, 1945, 59 Stat. 1031, T. S. No. 993 (to which both the679 shocking that a party to an extradition treaty might believe that it has secretly reserved the right to make seizures of citizens in the other party's territory.21 Justice Story found it shocking enough that the United States would attempt to justify an American seizure of a foreign vessel in a Spanish port:
"But, even supposing, for a moment, that our laws had required an entry of The Apollon, in her transit, does it follow that the power to arrest her was meant to be given, after she had passed into the exclusive territory of a foreign nation? We think not. It would be monstrous to suppose that our revenue officers were authorized to enter into foreign ports and territories, for the purpose of seizing vessels which had offended against our laws. It cannot be presumed that congress would voluntarily justify such a clear violation of the laws of nations." The Apollon, 9 Wheat. 362, 370-371 (1824) (emphasis added).22
United States and Mexico are signatories). See generally Mann, Reflections on the Prosecution of Persons Abducted in Breach of International Law, in International Law at a Time of Perplexity 407 (Y. Dinstein & M. Tabory eds. 1989).21 When Abraham Sofaer, Legal Adviser of the State Department, was questioned at a congressional hearing, he resisted the notion that such seizures were acceptable: "'Can you imagine us going into Paris and seizing some person we regard as a terrorist ... ? [H]ow would we feel if some foreign nation-let us take the United Kingdom-came over here and seized some terrorist suspect in New York City, or Boston, or Philadelphia, ... because we refused through the normal channels of international, legal communications, to extradite that individual?'" Bill To Authorize Prosecution of Terrorists and Others Who Attack U. S. Government Employees and Citizens Abroad: Hearing before the Subcommittee on Security and Terrorism of the Senate Committee on the Judiciary, 99th Cong., 1st Sess., 63 (1985). 22Justice Story's opinion continued: "The arrest of the offending vessel must, therefore, be restrained to places where our jurisdiction is complete, to our own waters, or to the ocean, the common highway of all nations. It is said, that there is a revenue
680 The law of nations, as understood by Justice Story in 1824, has not changed. Thus, a leading treatise explains:

 

 

"A State must not perform acts of sovereignty in the territory of another State.
"It is ... a breach of International Law for a State to send its agents to the territory of another State to apprehend persons accused of having committed a crime. Apart from other satisfaction, the first duty of the offending State is to hand over the person in question to the State in whose territory he was apprehended." 1 Oppenheim's International Law 295, and n. 1 (H. Lauterpacht 8th ed. 1955).23

Commenting on the precise issue raised by this case, the chief reporter for the American Law Institute's Restatement of Foreign Relations used language reminiscent of Justice Story's characterization of an official seizure in a foreign jurisdiction as "monstrous":

 jurisdiction, which is distinct from the ordinary maritime jurisdiction over waters within the range of a common shot from our shores. And the provisions in the Collection Act of 1799, which authorize a visitation of vessels within four leagues of our coasts, are referred to in proof of the assertion. But where is that right of visitation to be exercised? In a foreign territory, in the exclusive jurisdiction of another sovereign? Certainly not; for the very terms of the act confine it to the ocean, where all nations have a common right, and exercise a common sovereignty. And over what vessels is this right of visitation to be exercised? By the very words of the act, over our own vessels, and over foreign vessels bound to our ports, and over no others. To have gone beyond this, would have been an usurpation of exclusive sovereignty on the ocean, and an exercise of an universal right of search, a right which has never yet been acknowledged by other nations, and would be resisted by none with more pertinacity than by the American." The Apollon, 9 Wheat., at 371-372.

23 See Restatement § 432, Comment c ("If the unauthorized action includes abduction of a person, the state from which the person was abducted may demand return of the person, and international law requires that he be returned").

 681

"When done without consent of the foreign government, abducting a person from a foreign country is a gross violation of international law and gross disrespect for a norm high in the opinion of mankind. I t is a blatant violation of the territorial integrity of another state; it eviscerates the extradition system (established by a comprehensive network of treaties involving virtually all states)." 24

In the Rauscher case, the legal background that supported the decision to imply a covenant not to prosecute for an offense different from that for which extradition had been granted was far less clear than the rule against invading the territorial integrity of a treaty partner that supports Mexico's position in this case.25 If Rauscher was correctly decided-and I am convinced that it was-its rationale clearly dictates a comparable 

 result in this case.26

24 Henkin, A Decent Respect to the Opinions of Mankind, 25 John Marshall L. Rev. 215, 231 (1992) (footnote omitted). 25 Thus, the Restatement states in part: "(2) A state's law enforcement officers may exercise their functions in the territory of another state only with the consent of the other state, given by duly authorized officials of that state. "c. Consequences of violation of territorial limits of law enforcement. If a state's law enforcement officials exercise their functions in the territory of another state without the latter's consent, that state is entitled to protest and, in appropriate cases, to receive reparation from the offending state. If the unauthorized action includes abduction of a person, the state from which the person was abducted may demand return of the person, and international law requires that he be returned. If the state from which the person was abducted does not demand his return, under the prevailing view the abducting state may proceed to prosecute him under its laws." § 432, and Comment c.

26Just as Rauscher had standing to raise the treaty violation issue, respondent may raise a comparable issue in this case. Certainly, if an individual who is not a party to an agreement between the United States and another country is permitted to assert the rights of that country in our courts, as is true in the specialty cases, then the same rule must apply to

 682

III A critical flaw pervades the Court's entire OpInIOn. It fails to differentiate between the conduct of private citizens, which does not violate any treaty obligation, and conduct expressly authorized by the Executive Branch of the Government, which unquestionably constitutes a flagrant violation of internationallaw,27 and in my opinion, also constitutes a breach of our treaty obligations. Thus, at the outset of its opinion, the Court states the issue as "whether a criminal defendant, abducted to the United States from a nation with which it has an extradition treaty, thereby acquires a defense to the jurisdiction of this country's courts." Ante, at 657. That, of course, is the question decided in Ker v. Illinois,119 U. S. 436 (1886); it is not, however, the question presented for decision today. The importance of the distinction between a court's exercise of jurisdiction over either a person or property that has been wrongfully seized by a private citizen, or even by a state law enforcement agent, on the one hand, and the attempted exercise of jurisdiction predicated on a seizure by federal officers acting beyond the authority conferred by treaty, on the other hand, is explained by Justice Brandeis in his opinion for the Court in Cook v. United States,288 U. S. 102 (1933). That case involved a construction of a Prohibition Era treaty with Great Britain that authorized American agents to board certain British vessels to ascertain whether they were engaged in importing alcoholic beverages. A

the individual who has been a victim of this country's breach of an extradition treaty and who wishes to assert the rights of that country in our courts after that country has already registered its protest.

 27 "In the international legal order, treaties are concluded by states against a background of customary international law. Norms of customary international law specify the circumstances in which the failure of one party to fulfill its treaty obligations will ,permit the other to rescind the treaty, retaliate, or take other steps." Vazquez, Treaty-Based Rights and Remedies of Individuals, 92 Colum. L. Rev. 1082, 1157 (1992).


683 British vessel was boarded 111/2 miles off the coast of Massachusetts, found to be carrying unmanifested alcoholic beverages, and taken into port. The Collector of Customs assessed a penalty which he attempted to collect by means of libels against both the cargo and the seized vessel.

The Court held that the seizure was not authorized by the treaty because it occurred more than 10 miles off shore.28 The Government argued that the illegality of the seizure was immaterial because, as in Ker, the court's jurisdiction was supported by possession even if the seizure was wrongful. Justice Brandeis acknowledged that the argument would succeed if the seizure had been made by a private party without authority to act for the Government, but that a different rule prevails when the Government itself lacks the power to seize. Relying on Rauscher, and distinguishing Ker, he explained:

 

"Fourth. As the Mazel Tov was seized without warrant of law, the libels were properly dismissed. The Government contends that the alleged illegality of the seizure is immaterial. It argues that the facts proved show a violation of our law for which the penalty of forfeiture is prescribed; that the United States may, by filing a libel for forfeiture, ratify what otherwise would have been an illegal seizure; that the seized vessel having been brought into the Port of Providence, the federal court for Rhode Island acquired jurisdiction; and that, moreover, the claimant by answering to the merits waived any right to object to enforcement of the penalties. The argument rests upon misconceptions.
"It is true that where the United States, having possession of property, files a libel to enforce a forfeiture resulting from a violation of its laws, the fact that the possession was acquired by a wrongful act is immaterial.
28 The treaty provided that the boarding rights could not be exercised at a greater distance from the coast than the vessel could traverse in one hour, and the seized vessel's speed did not exceed 10 miles an hour. Cook v. United States, 288 U. S., at 107, 110.

 684

Dodge v. United States, 272 U. S. 530, 532 [(1926)]. Compare Ker v. Illinois, 119 U. S. 436, 444. The doctrine rests primarily upon the common-law rules that any person may, at his peril, seize property which has become forfeited to, or forfeitable by, the Government; and that proceedings by the Government to enforce a forfeiture ratify a seizure made by one without authority, since ratification is equivalent to antecedent delegation of authority to seize. Gelston v. Hoyt, 3 Wheat. 246, 310 [(1818)]; Taylor v. United States, 3 How. 197, 205-206 [(1845)]. The doctrine is not applicable here. The objection to the seizure is not that it was wrongful merely because made by one upon whom the Government had not conferred authority to seize at the place where the seizure was made. The objection is that the Government itself lacked power to seize, since by the Treaty it had imposed a territorial limitation upon its own authority. The Treaty fixes the conditions under which a 'vessel may be seized and taken into a port of the United States, its territories or possessions for adjudication in accordance with' the applicable laws. Thereby, Great Britain agreed that adjudication may follow a rightful seizure. Our Government, lacking power to seize, lacked power, because of the Treaty, to subject the vessel to our laws. To hold that adjudication may follow a wrongful seizure would go far to nullify the purpose and effect of the Treaty. Compare United States v. Rauscher, 119 U. S. 407." Cook v. United States, 288 U. S., at 120-122.

The same reasoning was employed by Justice Miller to explain why the holding in Rauscher did not apply to the Ker case. The arresting officer in Ker did not pretend to be acting in any official capacity when he kidnaped Ker. As Justice Miller noted, "the facts show that it was a clear case of kidnapping within the dominions of Peru, without any pretence of authority under the treaty or from the government

 685

of the United States." Ker v. Illinois, 119 U. S., at 443 (emphasis added).29 The exact opposite is true in this case, as it was in Cook.30 The Court's failure to differentiate between private abductions and official invasions of another sovereign's territory also accounts for its misplaced reliance on the 1935 proposal made by the Advisory Committee on Research in International Law. See ante, at 665-666, and n. 13. As the text of that proposal plainly states, it would have rejected the rule of the Ker case.31 The failure to adopt that recommendation does not speak to the issue the Court decides today. The

29 As the Illinois Supreme Court described the action:

 "The arrest and detention of [Ker] was not by any authority of the general government, and no obligation is implied on the part of the Federal or any State government .... The invasion of the sovereignty of Peru, if any wrong was done, was by individuals, perhaps some of them owing no allegiance to the United States, and not by the Federal government." Ker v. Illinois, 110 Ill. 627, 643 (1884).

30 The Martinez incident discussed by the Court, see ante, at 665, n. 11, also involved an abduction by a private party; the reference to the Ker precedent was therefore appropriate in that case. On the other hand, the letter written by Secretary of State Blaine to the Governor of Texas in 1881 unequivocally disapproved of abductions by either party to an extradition treaty. In 1984, Secretary of State Schultz expressed the same opinion about an authorized kidnaping of a Canadian national. He remarked that, in view of the extradition treaty between the United States and Canada, it was understandable that Canada was "outraged" by the kidnaping and considered it to be "a violation of the treaty and of international law, as well as an affront to its sovereignty." See Leich, Contemporary Practice of the United States Relating to International Law, 78 Am. 31 Article 16 of the draft provides:

"In exercising jurisdiction under this Convention, no State shall prosecute or punish any person who has been brought within its territory or a place subject to its authority by recourse to measures in violation of international law or international convention without first obtaining the consent of the State or States whose rights have been violated by such measures." Harvard Research in International Law, Draft Convention on Jurisdiction with Respect to Crime, 29 Am. J. Int'l L. 435, 623 (Supp. 1935).

 686

Court's admittedly "shocking" disdain for customary and conventional international law principles, see ante, at 669, is thus entirely unsupported by case law and commentary. IV As the Court observes at the outset of its opinion, there is reason to believe that respondent participated in an especially brutal murder of an American law enforcement agent. That fact, if true, may explain the Executive's intense interest in punishing respondent in our courts.32 Such an explanation, however, provides no justification for disregarding the Rule of Law that this Court has a duty to uphold.33 That the Executive may wish to reinterpret 34 the Treaty to 32 See, e.g., Storm Arises Over Camarena; U. S. Wants Harder Line Adopted, Latin Am. Weekly Rep., Mar. 8, 1985, p. 10; U. S. Presses Mexico To Find Agent, Chicago Tribune, Feb. 20, 1985, p. 10. 33 As Justice Brandeis so wisely urged:

"In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the 

 whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means-to declare that the Government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face." Olmstead v. United States, 277 U. S. 438, 485 (1928) (dissenting opinion).

34 Certainly, the Executive's view has changed over time. At one point, the Office of Legal Counsel advised the administration that such seizures were contrary to international law because they compromised the territorial integrity of the other nation and were only to be undertaken with the consent of that nation. 4B Op. Off. Legal Counsel 549, 556 (1980). More recently, that opinion was revised, and the new opinion concluded that the President did have the authority to override customary international law. Hearing before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 101st Cong., 1st Sess., 4-5 (1989) (statement of William P. Barr, Assistant Attorney General, Office of Legal Counsel, U. S. Department of Justice).

 687

allow for an action that the Treaty in no way authorizes should not influence this Court's interpretation.35 Indeed, the desire for revenge exerts "a kind of hydraulic pressure ... before which even well settled principles of law will bend," Northern Securities Co. v. United States,193 U. S. 197, 401 (1904) (Holmes, J., dissenting), but it is precisely at such moments that we should remember and be guided by our duty "to render judgment evenly and dispassionately according to law, as each is given understanding to ascertain and apply it." United States v. Mine Workers,330 U. S. 258, 342 (1947) (Rutledge, J., dissenting). The way that we perform that duty in a case of this kind sets an example that other tribunals in other countries are sure to emulate. The significance of this Court's precedents is illustrated by a recent decision of the Court of Appeal of the Republic of South Africa. Based largely on its understanding of the import of this Court's cases-including our decision in Kerthat court held that the prosecution of a defendant kidnaped by agents of South Africa in another country must be dismissed. S v. Ebrahim, S. Afr. L. Rep. (Apr.-June 1991).36 The Court of Appeal of South Africa-indeed, I suspect most courts throughout the civilized world-will be deeply disturbed by the "monstrous" decision the Court announces today. For every nation that has an interest in preserving the Rule of Law is affected, directly or indirectly, by a deci-

35 Cf. Perkins v. Elg, 307 U. S. 325 (1939) (construing treaty in accordance with historical construction and refusing to defer to change in Executive policy); Johnson v. Browne, 205 U. S. 309 (1907) (rejecting Executive's 

 interpretation).

36 The South African court agreed with appellant that an "abduction represents a violation of the applicable rules of international law, that these rules are part of [South Mrican] law, and that this violation of the law deprives the Court ... of its competence to hear [appellant's] case .... " S. Afr. L. Rep., at 8-9.

688 sion of this character.37 As Thomas Paine warned, an "avidity to punish is always dangerous to liberty" because it leads a nation "to stretch, to misinterpret, and to misapply even the best of laws."3S To counter that tendency, he reminds us:
"He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself." 39

I respectfully dissent.

37 As Judge Mansfield presciently observed in a case not unlike the one before us today: "Society is the ultimate loser when, in order to convict the guilty, it uses methods that lead to decreased respect for the law." United States v. Toscanino, 500 F.2d 267, 274 (CA2 1974).

382 The Complete Writings of Thomas Paine 588 (P. Foner ed. 1945). 39 Ibid.

 

List of United States extradition treaties

 

 

LA DETENCIÓN DE MADURO Y LAS DECISIONES PREVIAS DEL TRIBUNAL SUPREMO (USA) RELACIONADAS CON LA MISMA

  

As former Venezuelan President Nicolás Maduro prepares to fight drug, weapon, and narco-terrorism charges in the United States after being arrested in Caracas, Venezuela, early Saturday morning by U.S. military forces, legal scholars and analysts are putting a spotlight on past Supreme Court rulings about presidential authority, extraterritorial arrests, and the rights of foreign leaders while debating the legality of the Trump administration’s actions.

The cases they’re revisiting principally relate to two aspects of Saturday’s operation and the criminal case against Maduro: 1) Whether President Donald Trump had the authority to send U.S. forces into Venezuela to arrest Maduro; and 2) Maduro’s likely defense in U.S. courts.

Supreme Court precedent has less to say about the first question than the second. As Steve Vladeck noted, the Justice Department contended in a 1989 DOJ Office of Legal Counsel memorandum that the president may order extraterritorial arrests, even if these are in contravention of international law. Additionally, in a prior memo, the DOJ asserted that the president has “inherent authority … to use troops to protect federal functions.”

In making these claims, the DOJ drew on the 1890 case of In re Neagle. This case arose after David Neagle, a deputy U.S. marshal assigned to protect Justice Stephen Field while he was in California, killed a man who assaulted Field. California officials charged Neagle with murder, contending that Neagle was not acting as a federal officer – and therefore did not have immunity from state law – because the U.S. attorney general did not have the authority to provide Field with a bodyguard.

In holding that the attorney general did have that authority, the Supreme Court emphasized that the president’s “general obligation” to execute the laws of the United States includes an obligation to protect the people charged with carrying out those laws. That holding is relevant to Saturday’s operation in Venezuela because the Trump administration has cited the need to protect those tasked with arresting Maduro as justification for using military force – although the court has not addressed the boundaries for the use of force and how, exactly, international law should be recognized here (if at all).

Supreme Court precedent is also playing a role in debates over how Maduro will fight the charges against him. In several past cases, the Supreme Court has addressed how U.S. courts should respond to potentially unlawful extraterritorial arrests, claims of immunity by foreign heads of state, and who determines whether someone who presents himself as a head of state is treated as such by the U.S. legal system.

Cases on the first issue work against Maduro, according to legal experts. Even if he could prove that his arrest in Caracas violated international law, it likely wouldn’t prevent U.S. courts from hearing the criminal case against him. As Vladeck explained, the Supreme Court has repeatedly held that “unlawful abductions of criminal suspects from foreign soil, even by the U.S. government, do[] not preclude their criminal prosecution in U.S. courts.”

Vladeck pointed to 1992’s United States v. Alvarez-Machain as one such ruling. In that case, the justices considered whether a criminal trial could proceed in the U.S. against a Mexican citizen, Humberto Alvarez-Machain, who was indicted for kidnapping and murdering a DEA agent and the agent’s pilot. Alvarez-Machain had been forcibly taken from his home at the direction of DEA agents and flown to Texas to stand trial. A U.S. district court and the U.S. Court of Appeals for the 9th Circuit sided with Alvarez-Machain, ruling that U.S. officials had violated an extradition treaty between the U.S. and Mexico and that, as a result, the U.S. did not have proper jurisdiction over the defendant.

Nevertheless, the Supreme Court ruled 6-3 in favor of the United States, holding that the abduction did not violate the treaty because “[t]he Treaty says nothing about the obligations of the United States and Mexico to refrain from forcible abductions of people from the territory of the other nation, or the consequences under the Treaty if such an abduction occurs.” In the absence of a treaty violation, Chief Justice William Rehnquist explained, the court was free to apply its preexisting doctrine on prosecution after a forcible abduction, which said that “forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him.”

Maduro may fare better by drawing on cases on the unique legal status of heads of state. “It is a longstanding principle of international law that heads of state have immunity in foreign courts,” according to The New York Times, and the “Supreme Court has recognized that constraint dating back to an 1812 opinion that says ‘the person of the sovereign’ is exempt from arrest or detention within a foreign territory.”

In that 1812 case, Schooner Exchange v. McFaddon, for example, the court addressed whether U.S. courts had the authority to hear a dispute over control of a foreign vessel in a U.S. port. In explaining why they did not, Chief Justice John Marshall reflected more broadly on how granting immunity to certain foreign officials is a path toward peace. If a head of state enters a foreign territory “with the knowledge and license of its sovereign, that license, although containing no stipulation exempting his person from arrest, is universally understood to imply such stipulation,” Marshall wrote.

But such language may ultimately prove a thin reed for Maduro to rely on, as the Supreme Court has also held, as The New York Times noted, that “presidents have absolute authority to recognize foreign governments.” That conclusion came in a 2015 case called Zivotofsky v. Kerry, in which the court sided with the federal government in a dispute over the government’s refusal to list Israel as a U.S. passport applicant’s place of birth due to a policy stating that no country has sovereignty over Jerusalem. As SCOTUSblog reported at the time, the court held that the Constitution gives the president the exclusive power to recognize foreign sovereigns and their boundaries.

If Maduro argues, as expected, that he should be immune from prosecution as a head of state, the Trump administration could counter that neither Trump nor former President Joe Biden recognized him as such beginning in 2019. 

Although it will likely be years before the Maduro case could make it to the Supreme Court, some legal scholars are already predicting that it will end up there. “I think the odds are good that it will be appealed to the Supreme Court by one or another party,” said Michael Gerhardt, a law professor at the University of North Carolina, to Newsweek. Of course, on what grounds and in what posture any appeal would occur is – at least at the moment – as unpredictable as everything else concerning the arrest of Maduro.


Kelsey Dallas, Maduro’s arrest places these Supreme Court rulings in the spotlight, SCOTUSblog (Jan. 6, 2026, 2:50 PM), https://www.scotusblog.com/2026/01/maduros-arrest-places-these-supreme-court-rulings-in-the-spotlight/

Thursday, January 8, 2026

Learning Resources, Inc. v. Trump (Tariffs; (I))

No. 24-1287
 
Title: Learning Resources, Inc., et al., Petitioners
v.
Donald J. Trump, President of the United States, et al.
Docketed: June 17, 2025
Linked with: 25A327
Lower Ct: United States Court of Appeals for the District of Columbia Circuit
   Case Numbers: (25-5202)
Questions Presented


The Congressional Budget Office baseline assumes tariff revenue that the Supreme Court may be about to invalidate. The CBO integrated these tariffs into projections showing reduced primary deficits of approximately 2.5 trillion dollars over a decade. Refund liability estimates range from 108 to 133.5 billion dollars based on December 2025 CBP collection data, with some analyses suggesting total exposure approaching 200 billion dollars across all affected jurisdictions. The Court of International Trade ruled in December that it can order refunds even after liquidation. Over 600 complaints covering more than 1,000 companies are stayed pending the Supreme Court decision. If the ruling is adverse, Treasury faces a double shock: loss of projected future revenue and immediate outflow for past collections. The February refunding announcement must communicate borrowing needs into a market where dealer balance sheets are already strained and the marginal buyer has shifted from price-insensitive foreign central banks to price-sensitive leveraged hedge funds. If the Court rules broadly against tariff authority, fiscal projections must be revised upward at the precise moment Treasury needs market confidence in those projections.

Prediction markets assign 68 to 79 percent probability that the administration loses the IEEPA tariff cases. The Federal Circuit ruled 7-4 in August 2025 that IEEPA’s “regulate importation” language does not authorize sweeping tariffs. The statute permits regulation, the court found, but does not explicitly grant the power to impose duties, which is an Article I power strictly reserved for Congress. The major questions doctrine played prominently in the reasoning: Congress must speak clearly if it wishes to assign decisions of vast economic and political significance to the executive branch. Congress did not speak clearly.

Oral arguments in November 2025 revealed skepticism from justices across the ideological spectrum. Chief Justice Roberts emphasized that imposing tariffs and taxes has always been the core power of Congress. Justice Gorsuch expressed concern about the nondelegation doctrine, the principle that Congress cannot hand over its core taxation powers to the President without clear intelligible principle. Justice Kagan noted the statute lacks the specific word “tariffs,” contrasting it with other trade acts that use the term explicitly. Justice Barrett flagged the danger of allowing IEEPA to bypass established trade statutes, essentially rendering Congressional trade authority moot. The justices’ questions do not dictate the ruling, but they suggest the administration faces an uphill battle.

If the Court rules broadly, the transmission to Treasury markets operates through multiple channels. First, tariff revenue projections embedded in fiscal forecasts must be revised. The February 4 refunding announcement occurs 26 days after the ruling. Treasury officials must communicate borrowing needs into a market processing constitutional uncertainty about the revenue base funding that borrowing. The communication challenge is delicate: acknowledge the ruling’s fiscal implications without projecting panic, maintain market confidence while revising assumptions downward. Second, refund liabilities create immediate fiscal pressure. The amounts are substantial, with estimates ranging from 108 to 133.5 billion dollars based on December collection data, representing immediate cash requirements that affect Treasury’s general account management. Third, alternative tariff authorities exist but require time. Section 232 requires Commerce Department investigation. Section 301 requires USTR investigation. Section 122 is limited to balance of payments emergencies and capped at 150 days. The administration cannot seamlessly substitute authorities. There will be a gap between IEEPA invalidation and alternative implementation, and markets will price the uncertainty during that gap.

 Even if it invalidates IEEPA tariffs, the Court may limit remedy to prospective application, citing disruption from retroactive relief under the Hammons precedent. The constitutional confrontation is containable. The response is that remedy uncertainty is itself volatility-inducing. The lower courts framed the authority question sharply. Whether broad or narrow, the ruling creates a gap in executive trade authority that markets must price. The transmission to fiscal assumptions and auction demand operates even with narrow ruling, just with smaller magnitude.

How Treasury Market Plumbing Became the Single Point of Failure for the Post-1945 Order, and What Happens When Three Constraints Bind Simultaneously in February 2026

Wednesday, January 7, 2026

"LA ARQUITECTURA DE LOS TRES SISTEMAS" (7-01-2026; SHANAKA ANSLEM PERERA)

 


The $4 trillion in duration extensions placed since October 2023 rests on a single assumption that broke during the pandemic and has not returned.

The assumption is that asset prices and consumer spending move together, that wealth effects transmit through the income distribution, that what is good for the S&P 500 is eventually good for the median household. The assumption is wrong. Not because asset prices will fall, though they might. But because the transmission mechanism that connected financial markets to the real economy has been severed at precisely the point where it matters most: the spending behavior of the bottom sixty percent of American households, who have exhausted their pandemic savings, maxed their credit cards, and are now defaulting on auto loans at the highest rate since the data series began in 1994.

The thesis in one sentence: The 2026-2027 period represents a phase transition risk window where the integration of K-shaped consumer bifurcation, European productivity collapse, demographic trust fund arithmetic, and three-systems geopolitical fragmentation creates nonlinear convergence that institutional silos structurally cannot model, making current positioning vulnerable to sudden regime change that the 70% soft-landing consensus systematically underprices.

What follows is the complete institutional playbook for the phase transition now unfolding.

 I. The Capture: Why Your Models Are Missing the Break

Here is what the consensus does not model: the top 10% of American households now account for 49.7% of all consumer spending. This is the highest concentration since data collection began in 1989, up from 43% in 2020. These households hold 67% of total wealth and over 87% of all corporate equities. Their spending is not constrained by wages but by asset prices. When equities rise, they spend more. When equities fall, they spend less. The transmission is direct, immediate, and uncushioned by the broader labor market.

Meanwhile, the bottom 60% have exhausted every buffer. The Federal Reserve Bank of San Francisco documented that aggregate excess savings, which peaked at $2.1 trillion in August 2021, were fully depleted by March 2024. The personal savings rate has fallen to 4.7%, well below the 8.4% long-term historical average since 1959. Thirty-seven percent of American households cannot cover a $400 emergency expense with cash. This statistic has not improved since 2022 and represents a structural vulnerability that no amount of Fed policy can address.

 The question for institutional allocators is not whether this bifurcation exists. The data is unambiguous. The question is what happens when the top decile’s asset-driven spending collides with the bottom sextile’s credit exhaustion. The answer requires understanding a transmission mechanism that standard models do not contain.

 

 II. The Mechanism: How K-Shaped Stress Transmits to Asset Prices

This model worked when consumption was more evenly distributed across the income spectrum. It fails when half of spending depends on asset prices and the other half depends on credit that is already extended.

Here is the mechanism the models miss.

Stage seven: The K-shape converges. The wealth effect that sustained top-decile spending reverses. The credit contraction that constrained bottom-sextile spending intensifies. The two economies that have been moving apart begin moving together, downward. This is the phase transition that models calibrated to historical correlations cannot anticipate.

This is not a liquidity crisis. Central banks cannot solve it with rate cuts. This is not a confidence crisis. Jawboning cannot restore transmission mechanisms that have structurally broken. This is a consumption structure crisis, and it has no modern precedent because the concentration of spending in the top decile has no modern precedent.

Systems approaching phase transitions exhibit characteristic signatures: rising sensitivity to small perturbations, lengthening recovery times from minor shocks, increasing cross-correlations. All three are observable in current markets. The VIX recovery time from spikes has lengthened. Cross-asset correlations have crept higher. Market reactions to news events have amplified. The system is telling you it is approaching criticality. The question is not if but which perturbation triggers the transition.

 III. The European Doom Loop: Why the Continent Cannot Provide Offset

This time is different. Europe is not experiencing a cyclical downturn. Europe is experiencing structural decline, and the decline is accelerating.

The productivity gap between the European Union and the United States has widened into a chasm that monetary policy cannot bridge. From the fourth quarter of 2019 to the second quarter of 2024, U.S. labor productivity grew by 6.7%. The euro area managed 0.9%. This is not a statistical artifact. This is the compound effect of underinvestment in digital technology, regulatory fragmentation that prevents scale, and energy costs that have made European industry globally uncompetitive.

 Industrial electricity prices in the European Union are approximately two to two-and-a-half times as high as in the United States. Gas prices remain four to six times Henry Hub benchmarks. For energy-intensive industries, chemicals, steel, aluminum, and heavy manufacturing, this arithmetic is fatal. No efficiency gains or green premiums can offset a cost disadvantage of this magnitude in feedstock and power. European manufacturers are not losing to American competitors on technology or quality. They are losing on the basic input costs that determine which facilities can operate profitably.

 The consequences are visible in the physical economy. Volkswagen closed its Dresden production facility on December 16, 2025, the first German plant closure in the company’s history. The symbolism matters: the social contract between German capital and labor, which guaranteed domestic employment in exchange for labor peace, has been broken. The Dresden closure follows a broader restructuring announced in late 2024, including plans to reduce German workforce by tens of thousands. This is not cyclical adjustment. This is structural retreat.

 BASF is shuttering adipic acid and other facilities at Ludwigshafen. Dow is closing plants in Böhlen and Schkopau. Ineos has permanently closed its Gladbeck site. The German Mittelstand, the small and medium enterprises that form the backbone of the economy, reported over 230,000 planned closures by end-2025 according to KfW data. Each closure represents supply chain disruption, expertise loss, and community devastation that cannot be rebuilt when conditions eventually improve.

This paralysis is not accidental. The European Union’s consensus-based governance structure cannot respond at the speed the crisis demands. Each recommendation requires negotiation across 27 member states with divergent interests. Germany needs energy security. France needs industrial sovereignty. Poland needs security guarantees. Spain needs cohesion funds. The intersection of these requirements produces lowest-common-denominator policy that addresses none of the structural challenges. The competitiveness gap widens while Brussels debates.

Capital has voted with its feet. Foreign direct investment into the European Union plunged 58% in 2024, according to UNCTAD’s World Investment Report. This is not volatility. This is capital reallocation on a structural basis. European residents purchased €226 billion of non-euro equity and €623 billion of non-euro debt securities in the twelve months to August 2025, according to ECB Balance of Payments data. The United States alone received €96.7 billion of new European FDI, representing 64% of all outflows. European capital is funding the American technology stack that widens the productivity gap further.

 For global portfolios, this creates a feedback loop that temporarily masks American vulnerabilities. European capital flight supports U.S. asset prices. U.S. asset prices sustain top-decile spending. Top-decile spending maintains GDP growth. GDP growth validates the soft-landing narrative. But the flow cannot continue indefinitely. European capital is finite. And when the K-shaped stress transmission mechanism engages, no amount of European flight-to-quality will prevent the correction, because the correction will originate in the domestic economy that European capital cannot reach.

 IV. The Demographic Collision: 2033 Is Closer Than Models Assume

The fiscal arithmetic that underpins U.S. Treasury valuations assumes policy continuity that political reality cannot deliver.

Here are the numbers that consensus models incorporate: Social Security’s Old-Age and Survivors Insurance Trust Fund will deplete in 2033. Medicare’s Hospital Insurance Trust Fund will deplete in 2033 as well. For the first time since Medicare’s creation in 1965, both funds exhaust in the same year. At depletion, Social Security beneficiaries face an automatic 23% benefit cut. Medicare Part A faces an 11% cut. These are not forecasts. They are calculations based on current law and demographic projections with well-defined confidence intervals.

 The worker-to-beneficiary ratio has fallen to 2.7-to-1, down from 5.1-to-1 in 1960. By 2034, it will reach 2.4-to-1. Fewer workers supporting more retirees while healthcare costs compound at elevated rates creates fiscal pressure that no plausible growth rate can offset. The arithmetic is merciless: even 3% real GDP growth sustained for a decade would not close the actuarial gap without revenue increases or benefit reductions that exceed what political processes can deliver before crisis forces action.

 What makes political resolution impossible is the electoral mathematics. Senior voters participate at rates exceeding 70%. Florida, Arizona, Pennsylvania, and Michigan, the states that determine presidential elections, contain millions of voters over 65. Any politician who votes for benefit cuts loses these states. Any politician who votes for sufficient tax increases loses different constituencies. The policy space that would address the structural deficit does not overlap with the political space that enables re-election.

 The $124 trillion wealth transfer from Baby Boomers over the coming decades, documented by Cerulli Associates, will not flow smoothly.

 The demographic pressure is not a risk to monitor. It is arithmetic. The uncertainty is only in timing, and the timing is front-loaded by the Peak 65 wave that crests in 2026-2027.

 V. The Three Systems: De-Dollarization Is Infrastructure, Not Rhetoric

The geopolitical consensus dismisses de-dollarization as aspiration without mechanism. 

This analysis is correct for transactional dominance. It is wrong for reserve diversification. And the distinction matters enormously for Treasury demand at the margin.

In mid-2025, foreign central banks’ gold reserves exceeded their U.S. Treasury holdings for the first time since 1996, according to World Gold Council and Treasury TIC data. Gold’s share of central bank reserves rose to approximately 27% while Treasuries fell to approximately 23%. Central banks purchased more than 1,000 tonnes of gold in each of 2022, 2023, and 2024, specifically 1,082, 1,037, and 1,045 tonnes respectively, double the 473-tonne annual average from 2010-2021. Poland, Brazil, India, Uzbekistan, and China have been persistent buyers. The buying is price-inelastic and strategic.

 Reserve managers do not need a transactional replacement to reduce dollar exposure. They need a store of value alternative. Gold is that alternative. Every ounce of gold purchased is effectively a dollar of potential Treasury demand removed from the market. The signal from central bank behavior is unambiguous: diversification away from dollar-denominated reserves is accelerating regardless of rhetoric about dollar dominance.

This is the Three Systems architecture crystallizing in real time. System One is the dollar-euro Atlantic bloc, anchored by SWIFT and U.S. military alliances, offering security guarantees and deep capital markets in exchange for political alignment. System Two is the BRICS-commodity bloc, constructing parallel financial infrastructure designed for sanctions immunity, linking energy directly to gold and local currencies. System Three is the digital-decentralized system, the neutral zone where capital that seeks to avoid both U.S. sanctions and Chinese capital controls finds exit valves.

The Treasury is refinancing $9.2 trillion in maturing debt by end-2025 and another $9 trillion in 2026, largely from pandemic-era short-term borrowing. Who buys this paper? China’s holdings have fallen to $688.7 billion as of October 2025 per TIC data, the lowest since 2008, down 47.7% from the 2013 peak of $1.317 trillion. Japan’s share has declined from 20% in 2009 to 12.9% today. The buying increasingly comes from “Indirect Bidders” in Treasury auctions, a category dominated by hedge funds using leveraged basis trades and Western custodial hubs. This is hot money, price-sensitive, liable to vanish in a liquidity shock.

The structural shift is slow but directional. Dollar reserve share declines approximately 0.7 percentage points annually. At this rate, the dollar falls below 50% by the mid-2030s. But rates of change can accelerate. A geopolitical shock, a sanctions overreach, a loss of confidence in U.S. fiscal trajectory could trigger the nonlinear acceleration that gradualist models cannot capture.

 VI. The Positioning Trap: Where Institutional Money Is Wrong

This positioning reflects the soft-landing consensus. It assumes the Fed will cut 100-150 basis points in 2026. It assumes inflation will converge to target without resurgence. It assumes corporate earnings will grow at the 14-17% rate that sell-side models project. It assumes that the correlations that held during the disinflation phase will hold during whatever comes next.

Every one of these assumptions is vulnerable.

 VII. The Evidence Cascade: Why This Analysis Is Undeniable

 The thesis rests on primary source data that can be verified, not on narrative or ideology. Here is the evidence cascade that makes the thesis undeniable.

 VIII. The Adversarial Gauntlet: Ten Objections Defeated


Objection Four: Dollar dominance is structural. No alternative exists.

Dollar transactional dominance is structural. Dollar reserve dominance is eroding at 0.7 percentage points annually. The gold-over-Treasuries crossover demonstrates that reserve managers have found an alternative store of value. They do not need a transactional replacement. They need insurance against weaponization. Gold provides insurance. The dollar’s FX share is irrelevant to the marginal buyer of duration.

Objection Five: Europe always muddles through. The pessimists are always wrong.

Europe has muddled through cyclical crises. This is a structural crisis. The productivity gap is widening, not narrowing. The FDI is exiting, not entering. The plant closures are permanent, not temporary. The reform paralysis is constitutional, not political. When even Mario Draghi’s emergency recommendations achieve 11.2% implementation after twelve months, the system has revealed its incapacity. This is not pessimism. This is observation.

Objection Six: Employment is full. Consumers pay debts when they have jobs.

This historical correlation has broken. Auto and credit card delinquencies are rising despite full employment. The default is a function of insolvency, not unemployment. Wages have not kept pace with the cost-of-living rebase. A job that pays $45,000 in 2019 dollars pays the equivalent of $38,000 in 2019 purchasing power today. The consumer has the job. The job no longer covers the bills.

Objection Seven: Treasury auctions show strong demand. Bid-to-cover ratios are healthy.

The “Indirect Bidder” category in Treasury auctions is increasingly opaque, dominated by hedge funds utilizing basis trades and Western custodians acting as pass-through vehicles. This is hot money, highly sensitive to volatility and rate differentials. The structural decline in Chinese and Japanese holdings means the U.S. is reliant on levered private capital that is liable to vanish in a liquidity shock. Strong auction technicals mask structural demand deterioration.

Objection Nine: BRICS is internally contradictory. India-China tensions doom coordination.

BRICS political unity is indeed fragile. India under Modi has no interest in subordination to Chinese hegemony. But financial infrastructure is being built regardless of political tensions. CIPS operates. Local currency settlements expand. Gold accumulates. The infrastructure creates optionality that becomes valuable precisely when geopolitical tensions escalate. Political rhetoric dismisses BRICS. Financial flows respect it.

Objection Ten: Phase transitions are unpredictable. You cannot time a crisis.

The timing objection is valid for trading. It is irrelevant for risk management. The question is not whether to predict the date of the phase transition but whether to hedge the tail risk that current positioning ignores. High-yield spreads at 2.81% versus a 4.5% twenty-year average price minimal recession probability. CAPE at 40.6 prices perfection. The cost of tail hedging is historically low. The payoff if the hedge is needed is historically high. You do not need to time the crisis. You need to not be positioned for perfection when perfection is not the modal outcome.

 IX. The Trade: What to Do Monday Morning

The analysis implies specific portfolio actions that can be implemented immediately.

Reduce equity concentration. The mega-cap technology names represent extreme crowding in institutional portfolios. These names are priced for perfection: perfect AI monetization, perfect multiple expansion, perfect macro stability. Any disappointment triggers outflows from passive vehicles that amplify the correction. The risk-reward is asymmetric to the downside.

Extend gold allocation. Central banks have provided the tell. Gold has rallied substantially through 2025, trading near $4,470 per ounce. J.P. Morgan forecasts prices reaching $5,055 by late 2026. Bank of America sees $5,000. The structural bid from reserve managers continues regardless of price. Gold has no counterparty risk, no sanctions exposure, no political vulnerability. The thesis supports gold to $5,000 minimum with potential for higher levels if fiscal concerns or geopolitical shocks intensify.

Favor short duration over long duration. The Fed’s cutting path is uncertain. Fiscal issuance is heavy. Foreign official demand is declining. The term premium has been suppressed by QE muscle memory. When muscle memory fades, the term premium returns. The ten-year yield at current levels does not compensate for duration risk in an environment where inflation reacceleration or fiscal premium repricing are plausible scenarios.

Position for Treasury curve steepening. The short end is anchored by Fed policy expectations. The long end is vulnerable to fiscal supply, foreign demand withdrawal, and term premium normalization. Bull steepeners if the Fed cuts into weakness. Bear steepeners if fiscal dominance reasserts. The curve steepens in both scenarios.

Consider European sovereign credit shorts. France trades at 78 basis points over Germany with a debt-to-GDP trajectory toward 121% by 2028. Italy faces a massive refinancing wall in 2026 as the ECB steps away from bond purchases. The ECB’s anti-fragmentation tools remain untested and deliberately vague. A spread widening trade in periphery-versus-core has asymmetric payoff if the doom loop re-engages.

Hedge volatility compression. Systematic volatility selling has suppressed VIX. The cost of protection is cheap relative to the risk of a liquidity event. Long volatility exposure, whether through options structures or VIX-linked instruments, provides convexity if any of the thesis catalysts materialize.

 X. The Synthesis: A Framework That Compounds

What remains is the framework.

The K-shaped economy is not a phase of the cycle. It is the structure of the cycle. 

The European decline is not reversible through policy within the current institutional architecture. The productivity gap is structural. The energy disadvantage is permanent while hydrocarbons remain expensive. The reform paralysis is constitutional. European capital will continue to fund American assets until European assets no longer exist to flee. Then the funding stops.

The demographic collision is arithmetic. Trust fund depletion in 2033 is not a forecast. It is a calculation based on known inflows and outflows. The only uncertainty is whether crisis-forcing occurs in 2029 or 2030 or 2031. Markets will price the collision before it arrives because long-duration assets must incorporate the fiscal trajectory.

The Three Systems architecture is crystallizing regardless of diplomatic rhetoric. The infrastructure for non-dollar settlement exists and expands. The gold accumulation continues regardless of price. The reserve diversification proceeds regardless of speeches about dollar dominance. The marginal Treasury buyer is not a central bank with fifty-year horizons but a hedge fund with fifty-day horizons. The structural demand base has shifted.

The integration of these four dynamics creates a system with narrow margin for error. The consensus is positioned for perfection. Perfection requires the Fed to thread the needle, Europe to muddle through, demographics to be a distant concern, and geopolitics to remain stable. Any single failure cascades because the system is coupled, correlated, and levered.

The fracture point approaches because multiple stress vectors are converging, each individually manageable but collectively overwhelming. The soft-landing consensus is not wrong to observe resilience. It is wrong to project that resilience forward without examining the transmission mechanisms that have changed. The consensus is using the map of 2019. The territory is 2026.

What comes next is not knowable with certainty. The probabilities favor stress, perhaps 60% versus 40% for extended soft landing. But the asymmetry of payoffs makes the position clear regardless of probability. The cost of hedging against fracture is low because consensus has compressed spreads and suppressed volatility. The cost of not hedging against fracture is potentially severe because positioning is crowded at consensus extremes.

The map is not the territory. And the territory has changed.

The Fracture Point: How America's K-Shaped Economy, Europe's Structural Decline, and the Three Systems Realignment Converge in 2026-2027

The $4 Trillion Duration Bet Rests on a Transmission Mechanism That Broke in 2021 and Never Returned