Extraterritorial U.S. Sanctions
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NO. 5 FEBRUARY 2019 Introduction Extraterritorial U.S. Sanctions Only Domestic Courts Could Effectively Curb the Enforcement of U.S. Law Abroad Sascha Lohmann The long reach of U.S. law affects persons, property, and acts around the world. In trying to shield EU-based individuals and entities with commercial interests from its adverse impact, European policy-makers have recently been exposed as more or less helpless. In order to pursue their strategic objectives more effectively, Europeans must not only focus on increasing strategic autonomy vis-à-vis the U.S. government. Absent a diplomatic agreement with the executive branch, they must also better uti- lize available channels of influence. One potential avenue would be to substantially support EU-based companies in domestic courts – both diplomatically as well as finan- cially – in order to challenge the executive branch when enforcing U.S. law beyond borders. Only the judicial branch can effectively curb the extraterritorial application of U.S. jurisdiction. Since the founding of the republic, the implementation through administrative U.S. government has continuously asserted regulations. authority beyond its borders in the pursuit The extraterritorial reach of U.S. law of economic, foreign, and national security derives from statutes enacted by Congress policy objectives. Three main factors account (prescriptive jurisdiction); regulations and for the extension of U.S. law to persons, rules administered by the administration property, and acts located or conducted (enforcement jurisdiction); as well as liti- abroad: Firstly, an ideological commitment gation in domestic courts (adjudicative to natural law expressed in a firm commit- jurisdiction). During the late 18th and early ment to the sanctity of inalienable rights 19th centuries, the long reach of U.S. law believed to transcend national borders. mostly concerned torts and piracy. Starting Secondly, a legal culture shaped by the in the early 20th century, U.S. law grad- experience of steady territorial expansion ually began to be applied extraterritorially and domination – initially as a former in the realms of environmental and eco- frontier society, and later as a self-restrained nomic regulation, with the latter including occupying force after World War II. And, anti-trust, banking, bankruptcy, securities, thirdly, an independent judiciary that taxation, and labor. Since the 1970s, the enjoys wide latitude to determine the geo- extraterritorial reach of domestic law has graphical scope of statutory law and its increased significantly as U.S. policy-makers
have pursued a wide range of foreign policy transactions involving the Iranian auto-
and national security objectives. Encroach- motive sector. A second wave entered into
ing upon the sovereignty of other nations, effect on November 5, 2018, containing
the assertion of U.S. authority beyond bor- numerous measures collectively aimed
ders has repeatedly sparked intense politi- at curtailing the Iranian government’s
cal conflicts with adversaries and allies revenue from oil exports.
alike. An acute contemporary conflict of Additionally, the Trump administration
U.S. and EU law is currently unfolding in had continued to strictly enforce the so-
the case of Iran. called non-nuclear sanctions until early
November 2018. The departments of the
Treasury and State blacklisted 168 individ-
How U.S. Trumps European Law uals and entities in 19 rounds for their
involvement in the Iranian ballistic missile
On May 8, 2018, President Donald J. Trump program and alleged human rights viola-
fulfilled yet another campaign promise by tions against the Iranian people.
announcing to cease U.S. participation in Well ahead of the deadlines set by the
the Joint Comprehensive Plan of Action Trump administration and absent any
(JCPOA). Under the terms of the executive enforcement action, major European and
agreement, which was not ratified by the Asian companies withdrew from the other-
U.S. Senate but endorsed in Security Coun- wise lucrative Iranian market. Most nota-
cil Resolution 2231, the Iranian govern- bly, this included the Society for Worldwide
ment agreed to strict limits on – and Interbank Financial Telecommunication
enhanced monitoring of – its nuclear (SWIFT) – the most widely used messaging
program in exchange for relief from inter- system among international financial insti-
national sanctions. Criticizing the limited tutions – which cut off most of the more
duration and insubstantial scope of the than 50 Iranian banks in early November
JCPOA, the Trump administration’s with- 2018, including the Central Bank of Iran,
drawal was immediately followed by a after they again became subject to U.S.
“maximum pressure” strategy. Its objective, financial sanctions.
as laid out by Secretary of State Mike The withdrawal of EU-based companies
Pompeo in May 2018, is to force the Iranian from Iran-related business further decreased
leadership into accepting a set of 12 far- the incentives for the Iranian leadership to
reaching demands that are geared to funda- uphold its commitments under the JCPOA,
mentally change not only its nuclear but as it contributed to the worsening of eco-
also regional and domestic policies. nomic conditions. Apart from further push-
The principle means to pursue these ing the JCPOA to the brink of collapse, the
maximalist demands is the use of unilateral exodus of EU-based companies has revealed
U.S. sanctions. On August 6, 2018, President an inconvenient truth to European policy-
Trump issued Executive Order 13846, which makers, namely that those companies are
re-instated the so-called nuclear-related, effectively regulated in Washington, D.C.
unilateral U.S. sanctions previously lifted
under the terms of the JCPOA. The impact
of those measures had crippled the Iranian Europeans Exposed As Helpless
economy between mid-2010 and late 2013.
A first wave entered into effect immediately, In response to President Trump’s decision
encompassing a limited set of prohibitions to cease U.S. participation in the JCPOA,
on purchases of U.S. dollar banknotes by European foreign policy-makers publicly
the Iranian government; the sale, supply, vowed to keep the Iranian nuclear deal
or transfer of various metals to or from from falling apart. In order to protect EU-
Iran; the purchase or holding of Iranian based companies from the looming threat
rials or Iranian sovereign debt; as well as of re-imposed unilateral U.S. sanctions, the
SWP Comment 5
February 2019
2governments of France, Germany, and the so-called blocking statute was undercut
the United Kingdom (E3), together with the by mixed signals that were mainly sent
European Union (EU), acted on four differ- from the German chancellor, Angela
ent fronts. Firstly, the European Council Merkel, who had raised doubts about its
updated Council Regulation (EC) No 2271/96 effective implementation on the national
to include many – but not all – unilateral level. In fact, the language of the statute is
U.S. sanctions against Iran. This so-called ambiguous while also enabling EU-based
blocking statute prohibits EU-based individ- companies to make their own business
uals and companies from complying with decisions to abstain from certain transac-
six statutes and one set of regulations listed tions. Those may incidentally happen to
in the annex, while providing a clawback be targeted by certain unilateral U.S. sanc-
provision to recover incurred damages in tions. In any case, favorable judgments
European courts. Secondly, the European secured in European courts would be largely
Council and the European Parliament up- unenforceable in the United States.
dated the External Lending Mandate of the Whereas the technical implementation
European Investment Bank to facilitate is relatively straightforward, the INSTEX
loans for private investment in Iran. Thirdly, seems hardly connectable to private busi-
the European Commission unveiled a set of nesses, the majority of which would remain
confidence-building measures, including a highly reluctant to engage in potentially
€50 million support package for economic illegal – or, at least, sanctionable – activ-
cooperation with – and assistance for – ity under U.S. law. This substantial risk
the Iranian private sector. Fourthly, the extends to small and medium-sized com-
High Representative of the European Union panies willing to continue trade with Iran
for Foreign Affairs and Security Policy, and without – or very little – exposure to
working jointly with the French and Ger- the U.S. market, given that their respective
man governments, set up a payment business partners might stop dealing with
mechanism independent from the U.S. them. Due to these difficulties of connect-
dollar. The Instrument in Support of Trade ing such a special purpose vehicle to the
Exchanges (INSTEX) – registered in France broader European economy, it may only
and overseen by three high-ranking bureau- be suited to facilitate trade in agricultural
crats from the E3 – is designed to enable commodities, medicine, and medical goods
the bartering of Iranian commodities, and that is still legal under U.S. law.
potentially those from other suppliers, in Therefore, the currently available policy
exchange for European goods, technology, options at the disposal of European for-
and services without an underlying finan- eign policy-makers fall short of effectively
cial transaction. The Russian and Chinese changing the risk calculus of EU-based
governments have previously engaged in companies threatened by the extraterri-
similar steps. For example, the China Inter- torial reach of U.S. law. As a consequence,
national Payment System has allowed cross- the EU/E3 seem unable to safeguard the
border and offshore financial transactions JCPOA – one of their major foreign policy
denominated in renminbi since October achievements – from being actively sabo-
2015. taged by the Trump administration. Where-
However, these steps have fallen short of as previous administrations have backed
achieving their intended purpose of protect- down out of a concern for not wanting to
ing EU-based companies from the re-imposed alienate their European allies, the Trump
unilateral U.S. sanctions. To start with, administration shows no intention of
Council Regulation (EC) No 2271/96 had resolving the trans-Atlantic conflict of laws
previously been ineffective because its com- in a similar fashion. This uncompromising
paratively small fines did not outweigh the stance could intensify, as the administra-
much greater damage resulting from dis- tion may soon be mandated by Congress
obeying unilateral U.S. sanctions. Moreover, to significantly increase its enforcement
SWP Comment 5
February 2019
3of unilateral U.S. sanctions against Russia States.” Although the concrete reach of any
or China, with potentially devastating of those laws may vary – depending on the
effects for European – and particularly specific legal language employed – some
German – economic and security interests. similarities do exist. The term “U.S. person”
As a matter of fact, any potential decrease usually encompasses individuals physically
in European exposure to U.S. goods, tech- present within the United States, as well as
nology, and (financial) services will offer U.S. citizens and nationals anywhere in the
little protection against extraterritorial U.S. world. The term “entity” typically includes
sanctions, which increasingly target per- both non-profit organizations as well as
sons, property, and acts without any nexus companies organized under U.S. laws, in-
to U.S. jurisdiction whatsoever. cluding their foreign branches. And the
term “property” commonly applies to any
goods, technology, and (financial) services
Statutory Sources that are exported from the United States
or re-exported from third countries.
The most important statutory sources pre- Since the early 1990s, bipartisan majori-
scribing unilateral U.S. sanctions in the ties in Congress have begun to enact stat-
realm of foreign policy and national secu- utes prescribing so-called secondary sanc-
rity are the Trading with the Enemy Act of tions. Despite continuous opposition from
1917 (TWEA) during wartime, and the Inter- the executive branch, a steadily growing
national Emergency Economic Powers Act of 1977 number of laws target non-U.S. persons
(IEEPA) during peacetime. Upon a prior dec- engaged in specific conduct such as invest-
laration of the existence of a national emer- ing in specific sectors of the Iranian and
gency under the National Emergencies Act of Russian economies or transacting with per-
1976, the president can invoke the broad sons blacklisted by the U.S. administration.
powers delegated by Congress under the Technically, there can be no violation of
IEEPA in order to prohibit almost any un- secondary sanctions because the triggering
licensed import into, as well as any unli- activities are not prohibited under U.S. law
censed export of goods, technology, and but sanctionable. In any case, the president
(financial) services from the United States, enjoys considerable flexibility in imple-
including re-exports from third countries. menting secondary sanctions, as doing so
Most notably, the IEEPA allows the presi- requires a prior determination of non-com-
dent to block property, as well as any in- pliance by non-U.S. persons. Consequently,
terest therein, under the jurisdiction of the U.S. persons are prohibited from engaging
United States. in certain transactions, which may result in
Besides the TWEA and the IEEPA, further a partial or comprehensive cut-off from the
statutes prescribe unilateral U.S. sanctions. $14 trillion U.S. economy. For example,
Most importantly, those include the Atomic the secretary of the Treasury can order U.S.
Energy Act of 1954 (AEA), the Arms Export banks to close or impose strict conditions
Control Act of 1976 (AECA), and the Export on the opening or maintaining of corre-
Controls Act of 2018 (ECA), which provide spondent or payable-through accounts on
the president with the authority to prohibit behalf of a foreign bank, thereby closing
almost any unlicensed export of nuclear down access to dollarized transactions –
equipment and materials (AEA), military the “Wall Street equivalent of the death
items and software (AECA), as well as dual- penalty.” Furthermore, Congress authorized
use goods, technology, and services (ECA), the Department of the Treasury in 2012 to
including re-exports from third countries. block property under U.S. jurisdiction of
All of the aforementioned statutes con- those non-U.S. persons transacting with cer-
tain so-called primary sanctions, as they tain blacklisted Iranian persons.
only target persons, property, and acts that
are “subject to the jurisdiction of the United
SWP Comment 5
February 2019
4Extraterritorial Enforcement ity. Consequently, any export of goods,
services, or technology from the United
Unilateral U.S. sanctions are enforced extra- States that has not previously been author-
territorially by various executive agencies. ized either through a specific or general
Those include, but are not limited to, the license is strictly prohibited, regardless of
Nuclear Regulatory Commission within the the quantity. But compared to its wartime
Department of Energy, which administers predecessors, the OFAC has generally shown
regulations promulgated under the AEA; forbearance in defining the reach of its en-
the Bureau of Industry and Security within forcement jurisdiction. Hence, most regula-
the Department of Commerce, which ad- tions solely apply to U.S. persons, except
ministers regulations promulgated under for the Cuban Assets Control Regulations and
the ECA; and the Directorate of Defense the Iran Transaction and Sanctions Regulations,
Trade Controls within the Department of which apply to “any person subject to the
State, which administers regulations pro- jurisdiction of the United States.” This
mulgated under the AECA. seemingly small difference carries profound
The Office of Foreign Assets Control legal implications because it effectively ex-
(OFAC) within the Department of the Treas- tends U.S. jurisdiction over the large num-
ury promulgates regulations under the ber of independently operating foreign sub-
IEEPA as well as a small number of other sidiaries of U.S. parent companies.
statutes. The OFAC also maintains the In order to enforce the IEEPA, the OFAC
notorious Specially Designated Nationals can impose civil monetary fines of up to
(SDN) and Blocked Persons List, currently $295,141 per violation, or twice the amount
composed of more than 13,000 individuals of the incriminated transaction. The exact
and entities. A listing results in the block- amount is calculated by weighing various
ing of property, and any interest therein, factors laid out in the Economic Sanctions
that is owned or controlled by any one of Enforcement Guidelines. This administra-
the entries and falls under U.S. jurisdiction. tive process offers little transparency and
Moreover, U.S. persons are generally pro- is not subject to judicial review under the
hibited from transacting with so-called Administrative Procedure Act of 1946. In De-
SDNs. cember 2007, Congress established liability
All SDNs were designated under at least for anyone who causes a U.S. person to
one of the more than 30 country-based or violate the IEEPA. This led the OFAC to slap
issue-specific programs targeting both state huge civil fines on major foreign banks
and non-state actors. Most of these pro- facilitating financial transactions cleared
grams have been initiated by executive in dollars on behalf of persons blacklisted
orders pursuant to the IEEPA, although by the U.S. administration.
some were directly enacted through statutes Furthermore, the OFAC can directly
passed by Congress. The respective reasons monitor compliance with its regulations
for being added to the SDN List can either by delisted non-U.S. persons. Such a case
be status- or conduct-based. The latter in- recently involved an agreement between
cludes a variety of alleged actions incrimi- the OFAC and three companies previously
nated under various statutes, such as ma- controlled and majority-owned by an SDN,
terial support for international terrorism; the Russian billionaire Oleg Deripaska.
proliferation of weapons of mass destruc- In the future, the OFAC may become more
tions and their means of delivery; human and more adept in targeting prominent
rights abuses; as well as transnational individuals who may be important share-
crimes such as narcotics trafficking and holders of major companies without dis-
malicious cyber-enabled activity. rupting global value chains.
The regulations promulgated by the Finally, the OFAC can refer violations of
OFAC under the IEEPA commonly lack any the IEEPA to the Department of Justice for
applicable threshold for establishing liabil- criminal prosecution. This guarantees more
SWP Comment 5
February 2019
5due process protections under the U.S. Articles of Agreement of the International
Constitution. However, a conviction might Monetary Fund and Article XXI of the World
result in huge monetary penalties as well as Trade Organization. Contrary to the vocal
imprisonment of up to 30 years. The extra- critics of unilateral U.S. sanctions, there
territorial enforcement is supported by exists no right to economic exchange, ac-
extradition treaties to detain individuals cording to the landmark ruling Nicaragua
sought by the U.S. Department of Justice v. United States by the International Court
in third countries. Recent prominent cases of Justice dating from June 1986. Up until
involve the arrest of the Chief Financial today, the application of economic power
Officer of the Chinese telecommunication in international relations has so far largely
company Huawei, Meng Wanzhou, who defied attempts at legalization.
was detained by Canadian authorities in With respect to customary international
early December based on a warrant issued law, the U.S. government is generally per-
by the U.S. Attorney in the Eastern District mitted to assert prescriptive and enforce-
of New York. Another high-profile case ment jurisdiction extraterritorially on the
revolved around Reza Zarrab, who was basis of the following five principles. Firstly,
arrested during a family trip to Miami, FL, the objective territoriality principle allows the
in March 2016. He was charged with six U.S. government to address direct and sub-
counts – among them conspiracy to evade stantial effects resulting from acts commit-
unilateral U.S. sanctions against Iran – ted beyond U.S. borders. Also known as the
that would have carried a sentence of up “effects doctrine,” this principle originated
to 70 years in prison. By pleading guilty from the century-old subjective territoriality
and agreeing to act as a cooperating witness principle, which establishes jurisdiction over
against another defendant in the same persons, property, and acts located or con-
case, Zarrab eventually reduced his pending ducted within U.S. territory. Secondly, the
sentence. active nationality principle permits the U.S.
government to regulate its own citizens and
nationals anywhere in the world. Thirdly,
No Limits under International Law the passive nationality principle enables the
U.S. government to prosecute harm or inju-
The extraterritorial prescription of U.S. ries done to its citizens or nationals abroad.
law and its extraterritorial enforcement by Fourthly, the protective principle may estab-
means of unilateral sanctions occupies a lish jurisdiction to counter threats to U.S.
gray area in public international law, which national security. Finally, the universality
governs interactions between sovereign principle can be advanced to bring to justice
nation-states either through formal treaties the perpetrators of crimes committed
or widely accepted customs. against humanity.
With regard to conventional international The application of these principles to
law, the U.S. government enjoys wide lati- concrete situations is open to interpreta-
tude to curtail trade and financial trans- tion. Beyond the protective principle,
actions. In its numerous bilateral treaties the U.S. administration has extensively
of friendship, commerce, and navigation stretched two particular principles in order
concluded with other nations, the U.S. gov- to justify the long reach of its jurisdiction
ernment faces no limits on its use of uni- to enforce U.S. law abroad in recent years.
lateral sanctions due to foreign policy and Firstly, the OFAC commonly has relied on
national security exceptions. This lack of the active nationality principle in order to
legal barriers to the extraterritorial reach claim enforcement jurisdiction over foreign
of U.S. law also holds true for multilateral companies that are owned or controlled by
treaties, which commonly contain broad a U.S. person more than 50 percent (or, in
exceptions for matters of national security. some instances, even less). This so-called
Those include Article VIII Section 2(b) of the control theory has remained controversial
SWP Comment 5
February 2019
6ever since it was initially adopted by the lished practice in the realm of U.S. anti-
Theodor S. Roosevelt administration in late trust statutes, the extraterritorial enforce-
1942 in the fight against the Axis powers. ment of the IEEPA generally lacks any
Later on, this expansive interpretation of objective criteria as to when certain effects
U.S. jurisdiction had been repudiated in materializing within the United States may
the landmark decision Barcelona Traction, be deemed as “direct” and “substantial.”
handed down in February 1970 by the Therefore, interpretations of the objective
International Court of Justice, which ruled territoriality principle with respect to U.S.
that the place of incorporation would deter- foreign policy and national security policy
mine the nationality of a company, and not remain highly subjective.
the nationality of its owners or sharehold- By simultaneously stretching the nation-
ers. This line of reasoning was strongly ality and objective territoriality principle
reaffirmed by the Commission of the Euro- and undermining the subjective territoriality
pean Communities in an aide-mémoire sent principle, the U.S. government further con-
to the U.S. Department of State in August tributes to sidelining the century-old prin-
1982. The démarche was part of the Euro- ciple of comity, which counsels restraint in
pean response to a prior extension of U.S. the case of concurrent jurisdiction by more
export controls to extend to subsidiaries than one state. Without comity, however,
of U.S. parent companies incorporated in President Trump’s favored reassertion of
Europe, and that had been involved in the nation-state within the international
the construction of a gas pipeline between order is bound to perpetuate legal conflicts.
West Germany and the Soviet Union.
Furthermore, the U.S. government
regularly stretches the nationality principle Curbs through Domestic Courts
by attaching its enforcement jurisdiction
not only to goods, technology, and (finan- Contrary to Article 25 of the German Grund-
cial) services after they are exported, but gesetz, which incorporates international
also to any goods, technology, and (finan- law into domestic law, the U.S. Constitution
cial) services located beyond U.S. borders spells out no limits for Congress to extend
that contain more than 10 percent of U.S.- its laws extraterritorially. But most U.S.
origin components. Most importantly, the statutes and their implementing regula-
clearing of dollars between two foreign tions remain silent on their geographical
banks – a ubiquitous practice at the heart scope, including the IEEPA. The precise
of the global economy – is construed by reach of U.S. statutes beyond borders must
the U.S. administration and some federal consequently be discerned by the judiciary.
courts as constituting an export of services Indeed, many federal district courts have
from the United States. This is because it supported the U.S. administration’s expan-
involves a correspondent account held at sive interpretation of its enforcement juris-
a U.S. bank. diction while not even considering possible
Secondly, the OFAC and other agencies limits to the extraterritorial reach of the
have stretched the objective territoriality IEEPA. Thus, the district courts did not
principle, shifting the focus away from the engage in weighing the respective interests
location in which a regulated act occurs to of the United States and those of the other
where its effects materialize. Initially recog- nations involved in each respective case.
nized by the Permanent Court of Inter- Most foreign defendants charged with vio-
national Justice in its landmark Lotus case lating U.S. law abroad have generally pre-
dating from September 1927, it found its ferred to forego criminal proceedings in
way into U.S. jurisprudence through the exchange for entering into Deferred Pros-
decision United States v. Alcoa by the Court of ecution Agreements, in which they submit
Appeals for the Second Circuit (148 F.2d to civil enforcement by the U.S. adminis-
416) in March 1945. In contrast to estab- tration. Up until now, the extraterritorial
SWP Comment 5
February 2019
7application of the IEEPA has rarely been preme Court may even go a step further
litigated in federal district and appellate and reconsider the precedent set in Chevron
courts, let alone in the Supreme Court. U.S.A. v. Natural Resources Defense Council.
Despite this reluctance, which is under- The 1984 decision has allowed executive
standable given the high reputational and agencies to interpret the meaning of
business risks involved, the prospects for statutes that authorize their actions.
successfully challenging the U.S. adminis- As a complement to the rather helpless
tration’s expansive interpretation of its efforts at increasing their strategic autonomy
enforcement jurisdiction in domestic courts vis-à-vis the U.S. government, European
may have grown recently. This is due to a foreign policy-makers could better utilize
© Stiftung Wissenschaft strengthening of a set of rules developed by existing channels of influence by relying
und Politik, 2019 the Supreme Court to interpret the reach upon the U.S. judiciary within the constitu-
All rights reserved of extraterritorial U.S. jurisdiction, which is tional system of check and balances. In
binding for the lower courts. Known as the practice, this means systematically encour-
This Comment reflects
“presumption against extraterritoriality,” it aging and eventually assisting EU-based
the author’s views.
holds that U.S. law would primarily apply companies in domestic courts to challenge
The online version of domestically unless Congress has explicitly the U.S. administration’s extraterritorial
this publication contains determined otherwise. This set of rules enforcement of the IEEPA, and potentially
functioning links to other complements an earlier set of rules known also other statutes. Such a course of action
SWP texts and other relevant
as the “Charming Betsy” presumption, which would require close cooperation between
sources.
dates back to the early 19th century. the European Commission, individual
SWP Comments are subject Accordingly, the intent of Congress could member states, and the private sector on
to internal peer review, fact- only be interpreted to violate international both sides of the Atlantic. But absent a
checking and copy-editing. law if no other construction is possible. diplomatic agreement with the U.S. admin-
For further information on Taken together, these two so-called istration or significant pushback from
our quality control pro-
canons of statutory construction could pro- Congress, it may provide the only remedy
cedures, please visit the SWP
website: https://www.swp- vide leverage for defendants charged with to effectively protect European sovereignty
berlin.org/en/about-swp/ having violated U.S. law abroad, arguing through the normative power of the rule
quality-management-for- that U.S. jurisdiction may not be applied to of law.
swp-publications/ them or their conduct. Additional leverage
may soon be provided, given the unob-
SWP
Stiftung Wissenschaft und
structed nominations of conservative judges
Politik to the federal bench by a solid Republican
German Institute for majority in the U.S. Senate. Most of the
International and candidates nominated by President Trump
Security Affairs share a particular judicial philosophy that
espouses a textual reading of the U.S. Con-
Ludwigkirchplatz 3–4
10719 Berlin stitution and is deeply skeptical about the
Telephone +49 30 880 07-0 growth of executive power and the expan-
Fax +49 30 880 07-100 sion of the administrative state during the
www.swp-berlin.org last 60 years. A sign in this direction: The
swp@swp-berlin.org
Supreme Court has recently agreed to hear
ISSN 1861-1761
a case that might revoke – or at least cir-
doi: 10.18449/2019C05 cumscribe – the so-called Auer deference.
This precedent was initially set in the deci-
sion Auer v. Robbins dating from 1997, which
has allowed executive agencies to interpret
ambiguous regulations on their own ever
since. A conservative majority on the Su-
Dr Sascha Lohmann is an Associate in the Americas Division.
SWP Comment 5
February 2019
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