Is the United States in a state of war with Iran? As of January 7, 2020, Is the US at war with Iran? What is the litmus test to determine if the US is at war with Iran?
No (assuming that nothing new as happened since I last saw the news earlier today, these matters can change in a matter of hours during the course of a day). There has been no declaration of war by Congress (which has the sole power to declare war under the U.S. Constitution), there has been no authorization by Congress to use military force (the modern functional equivalent of a declaration of war), and Iran has not taken acts which by definition constitute an act of war that have been used to treat the two countries as at war (such as conducting prolonged mutual battles between military forces, as opposed to a single attack). War does not exist merely because of an armed attack by the military forces of another nation until it is a condition recognized or accepted by political authority of government which is attacked, either through an actual declaration of war or other acts demonstrating such position. -- Blacks Law Dictionary, &quot;War&quot; (5th Ed. 1979) (citing Savage v. Sun Life Assur. Co. of Canada, 57 F. Supp. 620, 621 (W.D. La. 1944)). Thus, the fact that Iran appears to have fire missiles at U.S. targets, in and of itself (which the New York Times indicates as of 9:34 EST that it has) does not cause the U.S. and Iran to be at war. This story states that: The Asad and Erbil bases were targeted by Iran in retaliation for the killing of a top Revolutionary Guards commander in Baghdad. American military officials said that Iran had launched more than a dozen ballistic missiles against United States military and coalition forces. I am not aware at this moment, however, of any official reaction or statement regarding how this action will be classified by the United States, although that could happen very quickly before the day is out even. What matters in determining whether or not the U.S. and Iran are &quot;at war&quot; is the meaning that is assigned to this attack by the President, cabinet members and senior military and diplomatic officials, and Congress. Notably, being &quot;at war&quot; with a country does not mean, by definition, that the other country is &quot;at war&quot; with you. One country often becomes &quot;at war&quot; with another country at a different time that the second country comes to be at war with the first country. So, even if Iran's Parliament had declared war on the U.S, that wouldn't necessarily automatically and immediately cause the U.S. to be &quot;at war&quot; with Iran for purposes of U.S. law, even though a declaration of war in response would usually follow in short order. @user6726 however, accurately and importantly notes that the isn't a single universal definition of &quot;being at war&quot; with a country that applies for all purposes. The correct definition depends upon the context and the purpose for which you are asking the question, and the consequences that flow from a determination that we are &quot;at war&quot;. N.B. One of the important reasons to know if you are &quot;at war&quot; or not, among others, is that an &quot;enemy&quot; for legal purposes, generally only includes someone you are at war with. Citizens or nationals of a nation with whom you are at war are &quot;enemies&quot; and have different legal rights that citizens or nationals of foreign countries with whom you are not at war.
Looks like 217(a)(12) of the INA, as referenced in the EO (codified as 8 USC 1187(a)(12)), refers to a list of countries/areas of concern requiring enhanced scrutiny for the visa waiver program under the DHS/U.S. Customs and Border Protection (CBP)-009 Electronic System for Travel Authorization (ESTA) System of Records. Iraq and Syria are in the statute. DHS maintains the list. They added Somalia, Yemen, and Libya to the list on 6/17/2016 in 81 FR 39680. Iran and Sudan were added previously.
The fact that an explosive device is improvised is irrelevant to any law of war with which I am familiar. "Legal in war" is more a matter of deciding which treaty, convention, or custom you care to respect.
See Article VI of the Constitution: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. This seems to me that it pretty clearly establishes the Constitution as taking the place of any previous laws. In particular, Article XI of the Articles is in conflict with Article IV Section 3 of the Constitution ("New States may be admitted by the Congress into this Union"). The Constitution says that Congress's action is required to create a new state, and doesn't mention any exceptions. The Constitution's terms presumably take precedence. If Canada wanted to become a state, it would have to be admitted by Congress under Article IV Section 3.
Yes, such as this limitation on free speech. Initially, the limitation was "Clear and Present Danger" test (Schenk v. United States, 1919) which held that speech inciting lawless action was not protected speech and thus could be crimilized speech (i.e. Schenk publishing anti-draft fliers during World War I, which advocated draft dodging which at the time was a crime under the Espionage act of 1917). This was later over ruled to the "Bad Tendency" test which allowed for advocacy of criminal actions to be criminilized (Whitney v. United States, 1927. Whitney was accused of helping establish the American Communist Labor Party (ACLP), which held as a party platform the violent overthrow of the U.S. Government in favor of one advocated by the ACLP. This is standard to most Communist Parties at the time around the world. The difference between Schenk and Whitney was that Schenk actively called for a criminal action, where as Schenk was speaking of a future action following other party successes). This was overturned again by Brandenberg v. Ohio (1969) which introduced the "Imminent Lawless Action" test. This explicitly overturned Whitney in addition to other cases not mentioned such as Abrams v. United States (1915), Giltrow v. New York (1925), and Dennis v. United States (1951). It does not overrule Schenk, but it did cast doubt upon the decision made. In the case, KKK leader Brandenburg made a speech advocating for revenge against African Americans and Jews as well as expressing the belief that the United States government actively surpressed White Americans and needed to be opposed. He was charged as advocating the violent overthrow of the government. Imminent Lawless Action added the important componant that the violation must be advocacy of lawless action (revenge against racial minorities) must have a definite future date (like "tonight", "tomorrow", or specific time and date) and a vague future time will not count. And must show intent to break the law (Brandenburg did not specifically intend to break the law... he wanted it changed so it would not be legal before he took action). Additionaly, they found that the mere advocacy of resisting the government did not have any language componant that suggested violent resistance. Brandenburg, as discussed, overturned the reaffirmed B and put Schenk on some shaky ground as parts of Shenk were still relevant (Schenk first introduced that Free Speech was not without restrictions, but some of the case law was not relevent anymore, as Whitney used it as a basis in that decision, as did to a limited extent Dennis, which didn't work well with Whitney for other reasons. It should be pointed out that the Supreme Court does not typically take cases that wholly reaffirm past cases. Typically, their rulings are to clarify situations in a previous case that are not stated by the current extant rulings. For example, if the Supreme Court took a case that called Roe v. Wade into question, the case would more likely test whether Roe allows for a particular practice that isn't all that clear in Roe. It may affirm that Roe is still law, but the new case is not consistent with Roe, which will place a restriction on Roe, but not, figuratively, (pardon the pun) throw the baby out with the bath water.
No they are not the same statement. Who has jurisdiction? Let's disentangle a few things: A jurisdiction is an entity that has sovereignty to make, interpret and enforce its own laws. Each country in the world is a jurisdiction. Sub-national entities like states, provinces and municipalities may be a jurisdiction depending on the operation of law in the country they are part of. Some supra-national bodies like the EU and the UN are jurisdictions. To some extent, even companies, clubs and similar bodies are jurisdictions to the extent that they can make, interpret and enforce its own rules. A jurisdiction can decide that it has jurisdiction based on a whole raft of matters including: where the event took place where the party(s) are resident where the party(s) are citizens registration of things like planes, trains and automobiles if money passed through their financial system etc. A court or tribunal has jurisdiction if the jurisdiction has jurisdiction and it is the correct body within its jurisdiction to hear a particular matter. Which laws apply? Once a court or tribunal has decided that it does have jurisdiction it then needs to know what law to apply. This may be the law of their jurisdiction or another jurisdiction or both. Example For example, imagine there is a company in New York, USA that sells a product to a consumer in New South Wales, Australia. Further suppose that the contract says it will be governed by the laws of Ontario, Canada (don't ask me why). In the event of dispute, let's say the consumer begins proceedings in the Local Court in New South Wales. The New York company petitions the court to say that the correct forum is the court in Ontario, or New York, or Mexico where the product shipped from but certainly not New South Wales. The court in New South Wales will consider the jurisdictional arguments and decide if it does or does not have jurisdiction. If it decides that it doesn't then the customer would have to bring an action somewhere else (where the process repeats). Worth noting that the New York company would be precluded from arguing in that forum that New South Wales was the right jurisdiction because they can't have their cake ... If it decides that it does have jurisdiction then it would consider what law applies. Its quite probable that they would accept that the contract is governed by Quebec law. However, Australian law, most specifically the Australian Consumer Law would also apply. If there was a claim on a tortuous basis this might be New South Wales or New York law. They would then proceed to decide the case on the applicable law including working out how to reconcile any incompatibilities.
It's supposed to be carte blanche, i.e. "blank check". The quotation has left out several words. You can find the full decision at https://supreme.justia.com/cases/federal/us/458/176/case.html. The complete sentence is: It thus seems that the dissent would give the courts carte blanche to impose upon the States whatever burden their various judgments indicate should be imposed.
Treason is basically the only crime explicitly defined by the Constitution. According to Article III, Section 3: Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. So, no. What this hypothetical president is calling for is unconstitutional, is almost certainly grounds for impeachment, and may even be criminal, but treason it ain't. And that's assuming he actually does it. Simply calling for it, without acting (or directing others to act) to bring it about, may well be protected by the First Amendment.