U.S. District Court’s Order in the Venezuelan Deportees Case Was Not Extraterritorial – Conflict of Laws

The next publish was kindly supplied by Hannah Buxbaum, Vice President for Worldwide Affairs, Professor of Regulation and John E. Schiller Chair, Indiana College, and is cross-posted on tlblog.org

As was extensively reported yesterday, the Trump administration permitted two planes carrying Venezuelan deportees to proceed on their solution to El Salvador after receiving a judicial order to show the flights again to the US. A narrative in Axios quotes an administration official who explains that they weren’t in truth “actively defying” the choose—the order simply got here too late, because the planes have been already out of U.S. airspace. This appears to be an extraterritoriality argument, suggesting that the choose lacks authority to order an motion to happen outdoors U.S. borders.

The administration has this utterly fallacious. The choose is ordering the administration to take motion inside the US—that’s, to instruct the planes to show round. That instruction will in flip trigger one thing to occur elsewhere (the pilots will change course), however that doesn’t make the order impermissibly extraterritorial. That is precisely the identical the premise on which courts in garden-variety civil disputes order events topic to their jurisdiction to obtain proof or flip over property which are positioned overseas. Furthermore, because the planes have been reportedly over worldwide waters on the time the order was entered, compliance wouldn’t have required any actions by a international actor or inside the territory of one other state—in different phrases, it wouldn’t have created a battle of legal guidelines.

Now that the deportees are already in El Salvador, that image is extra sophisticated, since native authorities there would possibly refuse to take motion. Even the existence of such a battle, although, doesn’t imply that Decide Boasberg’s order exceeds his authority. It stays to be seen whether or not any of the opposite justifications the White Home provided up for ignoring that order are any extra compelling, however the argument that it didn’t apply as soon as the planes had left the US is definitely not.

For additional main knowledgeable enter on extraterritoriality see considered one of our earlier posts right here.