In the Footsteps of John Marshall: European Courts and the Expansion of Protection of Forced Migrants

Abstract

The Court of Justice of the European Union and the European Court of Human Rights share with the Marshall Court the reputation (and reality) of being activist institutions. Well aware of the long-term structural implications of many of the disputes before them, they are important drivers of the European project. They have already left their mark on the development of the Common European Asylum System (CEAS) through recent decisions, such as Hirsi Jamaa and Others v. Italy, Germany v. B and D, and Elgafaji v. State Secretary of Justice. These judicial opinions demonstrate that the supra-national European courts are not shy about issuing broad rulings. In stark contrast to the limitations on U.S. judicial power that we are accustomed to in the plenary power doctrine, the European courts do not exhibit substantial deference to executive control of forced migration. Nor do these European judicial opinions resonate with the complex preemption analyses adopted by U.S. courts in their review of state and local challenges to federal immigration power. The Court of Justice of the European Union and the European Court of Human Rights are actively expanding the scope of EU law and, along with it, the right to asylum in Europe.