Can US Congress/government bar a specific foreign country&#39;s persons (individuals or firms) from due process clause? I wanted to ask whether US Congress/government can bar a specific foreign country's persons (individuals or firms) from the due process clause if the US government provided substantial evidence in a US court that that country implicitly/explicitly regularly discriminates against US persons in their courts or doesn't apparently reciprocate in due or fair legal process? The obvious example is China. We know that its judiciary isn't independent and the Chinese Communist Party's (CCP) guidelines are that its judiciary, like anyone else in China, must ultimately serve CCP's interests. So, we have seen multiple examples when Chinese courts used tools like anti-suit injunctions and others to discriminate against US firms. We have seen Chinese firm Tencent block live-streaming of NBA broadcasts which cost NBA $600M, apparently in breach of its contract with NBA, which NBA even can't seek legal remedy to refund. Obviously, it was because of CCP pressure but NBA even can't enforce its contract. There are other examples, too. WSJ reported some time ago that CCP forced DuPont to withdraw from a lawsuit if it wanted to avoid arbitrary scrutiny. That cost DuPont a valued chemical tech patent. Further, USTR releases each year foreign trade barrier report in which other cases of US companies' unfair treatment by Chinese courts can be found. So one obviously would then ask why Chinese companies are protected under fair legal process in the US. Huawei and other Chinese companies regularly sue the US government and exercise their unreciprocated constitutionally rights here in the US. And if any US government agency, presumably State Department, provided solid evidence of unfair discrimination against US companies in China in a US court, can US Congress/government pass a law that bars Chinese companies from fair legal protection in the US? And if US courts block that law, what else can the US government do to secure its economic interests that the US courts would deem acceptable that imposes reciprocity assuming that China doesn't accept third-party jurisdiction in any scenario? The same can be generalised to any country which doesn't have an implicitly/explicitly independent judiciary, as widely regarded in the international arena.
No The right to Due Process is a personal right of anyone who may come before a US court, or interact with an agency of any US government, Federal, State, or local. It is noit a national right, to be granted ort withheld depending on hoew US nationals are treated by a particular country. No one has authority to deny De Process to anyone who is physically within the US, nor to anyone who is interacting with any part of the US government/the Fifth and Fourteenth Amendments require the Fedferal and State governments, respectively, to grant Due process to al, and congress may not alter this by law, nor authorize any poat of the government to deny Due Process to anyone for any reason. Due Process is a somewhat flexible concept, and exactly what process is required may vary in different circumstances, but the basic elements of Due Process are not optional. All this is true no matter ow unjustly the courts or other agencies of a foreign government may treat US nationals. Such treatment may be addressed through diplomatic channels, or through economic or political pressure.
It is well established that the federal government has complete control over immigration. See especially Arizona v. US which holds that States are precluded from regulating conduct in a field that Congress has determined must be regulated by its exclusive governance. De Canas v. Bica (1976), 424 U.S. 351 is also relevant to the application of field preemption to INA. In this case, the courts found that Congress had not (at that point) entered the field of employment of unauthorized workers, so state laws were not preempted by federal law. Laws can change, and with them, potential state powers. In Arizona the court held that Intent can be inferred from a framework of regulation “so pervasive . . . that Congress left no room for the States to supplement it” or where a “federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject” and with respect to issues of immigration, Because Congress has occupied the field, even complementary state regulation is impermissible. The Immigration Reform and Control Act of 1986 adds provisions to the Immigration and Nationality Act, including employment-related law, thus Congress has entered the field of regulating immigration with respect to employment. Current 8 USC §1324b arises from various amendments to the INA, where the present expression &quot;protected individual&quot; was inserted, by Public Law 101-649, to replace earlier &quot;citizen or intended citizen&quot;. Congress also introduced Temporary Protected Status in §302 of the law, which has specific (more restricted) provisions regarding employment. The evidence clearly indicates that Congress intended to include employment issues w.r.t. their supreme power regarding immigration. These discrimination provisions are in the field of immigration, and not discrimination legislation (where Congress has not preempted the field). Congressional silence must, in the light of what Congress did say, be interpreted to mean that the US immigration policy only offers certain specific protections, and states cannot add to or subtract from those protections.
I am wondering if the government can still implement it and force people to pay even if the decision is challenged in court. Laws are not automatically put on hold because they are challenged. For an action or a law to be halted by the Court before a decision is made, the applicant would have to seek an interlocutory injunction, which are granted only if, as established in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, (i) is there a serious issue to be tried, (ii) will the party seeking the injunction suffer irreparable harm if it is not granted, and (iii) does the balance of convenience favour the party seeking the injunction. The first issue is rarely a problem, especially for a controversial issue like this. I am thinking the government might be able to tax people and then refund people if the court doesn't uphold the decision instead of a court challenge being able to postpone the tax indefinitely. A quantifiable financial harm is rarely irreparable (in private law cases). However there is an important exception for Charter cases where a financial harm is assumed to be irreparable because damages are often not awarded in constitutional cases. Though in this case it might be considered reparable because the quantification of damage and the method of redress are straightforward. For the third question, the Court needs to weigh both sides' interests in the case where the injunction is granted. Even if the damage is deemed irreparable, the Court may (or may not) still find the public interest in health outweighs the financial interests of the unvaccinated.
That is a bit of queer provision. I'm not going to answer your first question because I think that it is a gray area with no definitive answer. In answer to your second question, my strong suspicion is that it is drafted in the shadow of a particular state consumer protection act. An arbitration clause is allowed to change your procedural rights, but cannot change substantive rights that cannot be waived by a pre-dispute contractual agreement. If it does that, it is void and you can go to court instead of an arbitration forum. Many consumer protection laws provide that a prevailing party is entitled to minimum statutory damages in lieu of actual damages if they are smaller, in addition to your reasonable attorneys' fees and litigation costs if you prevail. This is done to make it economically viable for private citizens to sue over violations of the consumer protection law that would otherwise involve actual damages too small to be worth suing over, without having to bring a class action. If the relevant consumer protection law has a minimum $5,000 statutory damages amount for some claims covered by the clause, this clause would prevent it from being invalidated, while allowing the merchant to still have access to the consumer unfriendly arbitration forum in which class action lawsuits are probably also barred while class action lawsuits would not be in court. For a big merchant, it is far better to have to pay $5,000 and attorneys' fees to the handful of people who bring arbitrations and win them, than to lose a single class action lawsuit for millions of dollars.
Probably.* Congress has wide latitude to dictate the procedures of "inferior courts" -- the district courts and circuit courts of appeal. Those courts only exist because Congress created them, so Congress can generally set the terms on which they continue to exist. That power is limited in several important ways by the Constitution, including the terms and compensation of the judges, and standing to address cases, and then further limited by separation-of-powers principles. But the Rules of Civil Procedure and the Rules of Criminal Procedure are a good example of how Congress has already -- and largely unobjectionably -- imposed these types of demands on the judiciary. The rules are generally drafted by the judicial branch, but Congress approves them and gives them the force of law. In both sets of rules, you can already see some requirements on how decisions are worded: Criminal Rule 23 requires the court to "state its specific findings of fact" after a bench trial; Criminal Rule 32 requires the court to "set forth the plea, the jury verdict or the court's findings, the adjudication, and the sentence" in judgments of conviction; Civil Rule 52 requires the court to "find the facts specially and state its conclusions of law separately"; Civil Rule 58 requires that "every judgment and amended judgment ... be set out in a separate document"; Civil Rule 59 requires the court to "specify the reasons [for granting or denying a motion for a new trial] in its order"; and Civil Rule 72 requires magistrates to enter "a recommended disposition, including, if appropriate, proposed findings of fact." The rule you're proposing seems to go well beyond these requirements, but I don't see how it would run afoul of constitutional constraints. I could imagine an argument that this somehow encroaches on the courts' inherent authority, but I'm not really convinced that that authority protects against this. For more information, you can read the Congressional Research Service report on "Congressional Authority Over the Federal Courts." *This answer only applies to Article III courts, but even then does not apply to the Supreme Court, which is co-equal and generally has the authority to set its own rules. When it comes to Article I courts, though, Congress would probably have virtually unlimited discretion to impose the kinds of requirements that you're talking about, and even to say that the court has no jurisdiction to consider constitutionality at all. Congress might even get away with imposing these kinds of requirements on state courts through the Spending Clause
The order itself is here. It applies to &quot;any United States person&quot;, which includes citizens, LPRs, entities with a US basis, and any other person in the US including tourists. It applies to transactions, and not static possession. There is no exception to the effect that &quot;you can trade as long as it's not on the NYSE&quot;, and it says Any transaction by a United States person or within the United States that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate the prohibitions set forth in this order is prohibited The order is not just directed at brokers, or the NYSE, it applies to everybody / everything everywhere, if you are a US person. Apparently there was some unclarity on the OTC question, which was clarified by the Office of Foreign Assets Control, to the effect that it includes OTC trading.
The US government is not required to publish a single list of &quot;embargoed&quot; countries, however defined. They are, however, required to publish the legal underpinnings of any restriction. This takes two forms. First, Congress must pass some law that enables the restriction. This page hosted by the Senate explains how to find such laws, however, it only goes back so far. You can find all of the US Code on the House US Code website. Usually, any change of sanctions don't require new legislation. The second set of publications are executive orders and executive-branch regulations, which are published in The Federal Register. For example, this is an executive order (February 21, 2022) regarding blocking of certain persons and transactions related to Russia's invasion of Ukraine. The Bureau of Industry and Security, Department of Commerce then published an implementation of that order, which is published in the Federal Register. The Office of Foreign Assets Control, Dep't of Treasury later published licenses related to this. The obvious problem is that hundreds of pages of information are published in the Federal Register every day, so keeping up with the rules is challenging. A partial substitute would be to check the web page of each department that might be involved in promulgating such regulations. The Dept. of Treasury has pages on financial sanctions. One thing they provide is useful information about is list of countries that you need to worry about in terms of U.S. sanctions: there is no list. As they explain, U.S. sanctions programs vary in scope.Some are broad-based and oriented geographically (i.e. Cuba, Iran).Others are “targeted” (i.e. counter-terrorism, counter-narcotics) and focus on specific individuals and entities.These programs may encompass broad prohibitions at the country level as well as targeted sanctions.Due to the diversity among sanctions, we advise visiting the “Sanctions Programs and Country Information” page for information on a specific program. OFAC’s Specially Designated Nationals and Blocked Persons List (“SDN List”) has approximately 6,300 names connected with sanctions targets. OFAC also maintains other sanctions lists which have different associated prohibitions. Many individuals and entities often move internationally and end up in locations where they would be least expected.Accordingly, U.S. persons are prohibited from dealing with SDNs regardless of location and all SDN assets are blocked.Entities that an SDN owns (defined as a direct or indirect ownership interest of 50% or more) are also blocked, regardless of whether that entity is separately named on the SDN List. Because OFAC's programs are dynamic, it is very important to check OFAC's website regularly.Ensuring that your sanctions lists are current and you have complete information regarding the latest relevant program restrictions is both a best practice and a critical part of your due diligence responsibility. The Dep't of Commerce has a less-useful list, the entities list, and also a Trade Enforcement web page. You should note that sanctions against the Central African Republic stem from Executive Order 13667 of May 12, 2014, but the Dept. of Treasury amended the regulations as of September 29, 2022 not in response to a new executive order. This is reflected on the Treasury Dep't web page on sanctions. It is unknown, and perhaps unknowable, whether the Dept. of Commerce will promulgate any foreign sanctions regulation that are not mirrored on the Treasury Dept. web page. In the case of the CAR sanctions, the executive order directed Treasury to write rules, though the Sec'y of State also received ordered (not related to financial sanctions).
From what I can gather, a US citizen could literally commit first-degree murder in another country, and not be held liable in US courts. Yes. From looking at the decision in Kiobel v. Royal Dutch Petroleum Co., it seems a corporation could go so far as to commit genocide in another country and not be held accountable in US courts. Yes. Why is US law set up in this way, and why has nothing been done to change it? Extraterritorality The modern nation-state is part of the Westphalian tradition of sovereignty which takes as a core value that the internal laws of each nation-state are a matter for it and it alone. This is baked into international law as part of the UN charter: &quot;nothing ... shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.&quot; The basic assumption of criminal law is that it is, by default, territorial. If a US national commits a crime in the Ivory Coast, then that is primarily the Ivory Coast's problem to deal with. There are both practical and political reasons why this is a good idea. The practical matters are that law enforcement and the courts in the Ivory Coast have the on-the-ground resources and knowledge to investigate and prosecute the crime and the US doesn't. US police forces can't collect evidence and interview witnesses in the Ivory Coast unless the Ivory Coast allows it. US courts can't subpoena witnesses. On the flip side, foreign jurisdictions don't have to follow the US Constitution when conducting searches and beating up, I mean, interrogating, suspects. That may make a lot of the evidence collected in foreign jurisdictions inadmissible in US courts. The political reasons are the US (and anyone else) should stay the f&amp;^% out of the internal operations of other countries. The treaty of Westphalia ended 30 years of the most brutal warfare in history, which killed an estimated one-third of Europe's population, which was largely fought because the ruler of country X wanted to tell the ruler of country Y what religion they should have. Extraterritorality in US law Constitutional restrictions can limit exterritoriality. First, the statute must be within Congress' power to enact. Second, neither the statute nor its application may violate due process or any other constitutional right (see above). The presumption is that Federal laws only apply within US territory. To be extraterritorial, Congress must make this clear, ideally explicitly, but the courts can find that some laws are implicitly extraterritorial based on their language. Other nation's approach is different. For example, a French citizen is subject to French as well as local law everywhere in the world.