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The Alien Tort Statute and "The Constitution's Text and Customary International Law"
Michael Ramsey

I have posted a revised version of The Constitution's Text and Customary International Law (106 Georgetown L.J., forthcoming, 2018) on SSRN.

This seems like a good time to fulfill an earlier commitment to expand on the paper's relationship to litigation under the Alien Tort Statute (ATS) (which provides federal court jurisdiction over claims brought "by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States").  The paper does not mention the ATS except once in passing, but it has potentially significant implications.  Specifically, one major issue in ATS litigation is whether ATS claims can be brought by a alien against another alien.  The importance of the issue diminished somewhat after the Supreme Court's 2013 decision in Kiobel v. Royal Dutch Petroleum, which held (incorrectly, in my view) that the ATS does not cover torts that occur outside the United States.  Many alien-vs.-alien ATS claims involve torts outside the United States.  But not all do (and some that do may be re-characterized as U.S.-based torts).  For example, the Jesner v. Arab Bank case, currently pending at the Supreme Court (argued in October 2017), is an alien-vs.-alien claim based on a tort allegedly committed in the United States.

A common argument in favor of alien-vs.-alien ATS claims is that nothing in the ATS's text excludes them.  That's true, looking only at the text of the ATS.  But at the time Congress first enacted the ATS, in 1789, there could not have been alien-vs.-alien ATS suits other than in specific areas mentioned in Article III (admiralty and cases affecting ambassadors).  That's because the Constitution does not extend federal jurisdiction to alien-vs.-alien suits; Article III only provides jurisdiction between "a State, or the Citizens thereof, and foreign States, Citizens or Subjects," plus subject-specific jurisdiction over admiralty, ambassadors, etc.

The response to this objection is that Article III might include claims arising under the law of nations (customary international law) as part of the "Laws of the United States," which is a basis of federal jurisdiction.  If so, then the ATS could have constitutionally given federal jurisdiction over alien-vs.-alien ATS claims.

But, as the new paper argues, that is not the right original meaning of Article III.  Here's the core of the argument (from pp. 12-13 of the SSRN draft, some footnotes omitted, paragraph break added):

[T]wo main considerations indicate that [Article III, Section 2] did not include the unwritten law of nations.

First, Article III provided federal jurisdiction for disputes arising under “Laws of the United States” and, separately, for disputes arising under treaties.  That separate treatment indicates that “Laws of the United States” in Article III did not include treaties, even though treaties were made part of supreme law by Article VI.  Similarly, Article III provided jurisdiction separately for disputes arising under “this Constitution” – so constitutional provisions also apparently were not encompassed within Article III’s “Laws of the United States.”  This phrasing suggests that “Laws of the United States” in Article III had the same (or a similar) narrow meaning that it did in Article VI: laws created by Congress.  It is difficult to understand how “Laws of the United States” could have included the unwritten law of nations but not treaties or the Constitution, especially since treaties and the Constitution were made supreme law by Article VI and the unwritten law of nations was not.

Second, Article III separately addressed important subsets of the law of nations.  It expressly gave federal courts jurisdiction over “all Cases of admiralty and maritime Jurisdiction” and “all cases affecting Ambassadors, other public Ministers and Consuls.”  As discussed further below, most of these disputes, if not governed by federal statutory or treaty law, were governed by the unwritten law of nations.  Indeed, as many commentators have explained, these provisions were included to assure that federal courts had jurisdiction over key law-of-nations controversies, to assure a uniform application and to avoid international offense. But if the law of nations was already included in federal jurisdiction as part of the “Laws of the United States,” these specific provisions would be largely redundant.  Disputes involving admiralty or ambassadors, if governed by federal statutes or treaties, would come under federal jurisdiction on that ground.  The separate grants of admiralty and ambassador jurisdiction were directed at disputes not involving federal treaties or statutes – which at the time principally meant disputes involving the law of nations.  Thus, use of the specific categories demonstrates the framers’ adoption of a different approach to law of nations jurisdiction: rather than providing jurisdiction over law of nations controversies as a general matter, they provided jurisdiction over specific categories of law-of-nations categories with which they were most concerned.

Hamilton’s Federalist 80, which exhaustively described Article III’s jurisdictional approach, adopted exactly this assessment.  Hamilton reviewed each of Article III’s express sources of jurisdiction and explained how they were needed to allow federal courts to resolve key international disputes – without saying or even implying that the law of nations as a general matter could be a basis for Article III jurisdiction.  [Footnote: See The Federalist, No. 80 (Hamilton), at 475-81 (discussing categories of Article III jurisdiction in detail without indicating the law of nations as a source of jurisdiction); see also id. at 475, 479 (describing the “laws of the United States” language in Article III as referring to “laws of the United States, passed in pursuance of their just and constitutional powers”).]

As a result, an ATS case like Jesner (alien plaintiff, alien defendant) could not have been heard in federal court when the ATS was enacted.  In an earlier ATS case, Sosa v. Alvarez-Machain (2004), the modern Supreme Court said that Congress in enacting the ATS would have assumed that federal courts would recognize common law causes of action as the basis of alien ATS claims.  That's true as a general matter, but its not true of alien-vs.-alien claims.  As to alien-vs.-alien claims, there would have been no federal jurisdiction, and so no ability to entertain a common law cause of action (again, apart from admiralty and cases affecting ambassadors ambassadors).

The situation today is different.  Modern federal courts say that when they create a common law cause of action, it is part of the "Laws of the United States" in Article III and so a basis for federal jurisdiction.  Under that view, if the Court recognizes a cause of action in Jesner, there would be federal jurisdiction, despite it being an alien-vs.-alien claim.

But that's a big "if".  In Sosa, the Court said that it would use "great caution" in deciding whether to create a common law cause of action under the ATS.  It had a long list a factors and considerations.  I think an important consideration should be whether the claim could have been brought under the ATS when the ATS was enacted.  If, as with Jesner, it could not have been brought in federal court, that seems a good reason not to allow it today.  Otherwise, the Court is expanding the reach of the statute, almost by accident, and without a good justification.

It's worth noting, of course, that this conclusion would not mean the Jesner case could not be brought; it would mean that the Jesner case would have to be brought in state court.  And if Congress has a problem with that, it can use its power to "define and punish ... Offenses against the Law of Nations" to create a federal statutory cause of action available against alien defendants (as it has done, to a limited extent, in the Torture Victim Protection Act).

The paper makes a number of other points about the relationship between the Constitution and customary international law, but this is the main one relevant to ATS litigation.