A prior post proposed a new federal voting rights act that would (a) make every U.S. citizen (including children and felons) eligible to vote; (b) require every citizen to vote; (c) forbid any racial discrimination in voting; and (d) simplify voting laws and procedure. Left unadressed was the constitutionality of such a statute.
Relevant Constitutional Law
Such a constitutional analysis is suggested in a recent article by Jesse Wegman, an experienced lawyer and journalist and a member of the New York Times’ Editorial Board, and this post draws from his article.
We start with the U.S. Constitution’s Elections Clause (Article I, Section 4). It provides: ” The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
According to the U.S. Supreme Court in various cases, the words “Times, Places and Manner” in this Clause are “comprehensive words,” which “embrace authority to provide a comprehensive code for congressional elections.” The Clause functions as “a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only as far as Congress declines to pre-empt state legislative choices.” Indeed, the congressional power under the Clause “is paramount and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no further, the regulations effected supersede those of the State which are inconsistent therewith.”
On the other hand, the Supreme Court has held in various cases, the Clause does not empower Congress to regulate who may vote in congressional elections. Instead, Article I, section 2(1) of the Constitution states, “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” (Emphasis added.) The same criteria for senatorial elections are set forth in the Seventeenth Amendment to the Constitution.
These constitutional provisions were the bases for the Supreme Court’s decision, 7 to 2, on June 17, 2013, in Arizona v. Inter Tribal Council of Arizona to invalidate an Arizona statute that required voter-registration officials to reject any application for registration that did not include documentary evidence of U.S. citizenship even though a Federal Form for such registration under the National Voter Registration Act that states are required to “accept and use” does not require such documentary evidence.
The opinion for the Court was written by Justice Antonin Scalia and was joined by Chief Justice John Roberts and Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justice Anthony Kennedy joined the opinion in part and filed his own concurring opinion.  It was from Justice Scalia’s opinion that the foregoing summary of prior Supreme Court precedents was drawn.
Application of the Constitutional Law to the Proposed Federal Voting Rights Act
Clearly the proposed statute’s making every U.S. citizen, including children and felons, eligible to vote would be unconstitutional. It could be rescued on the federal level only by an amendment to the U.S. Constitution. Individual states, however, could enact such laws.
The same conclusion would probably also apply to the proposal that every U.S. citizen be required to vote.
However, the various suggestions in the prior post for simplifying voting laws and procedure should be constitutional as would the ban on racial discrimination in voting.
Furthermore, I join Mr. Wegman in concluding that the Elections Clause could be the constitutional basis for “[s]trong federal laws . . . [to] help ensure voting fairness to all voters, especially when a state law appears neutral but has serious partisan or racially discriminatory effects. For instance, a state’s voter ID law might put up hurdles for poor or young voters, who may be disproportionately minority and Democratic, or for elderly voters, who lean Republican.” In addition, even though the Elections Clause “allows Congress to set rules only for federal elections, . . . those laws almost always guide state election practices.”
 Associate Justices Clarence Thomas and Samuel Alito filed dissenting opinions in Arizona v. Holder.
 Only eight days later, Justice Scalia was in the majority in Shelby County v. Holder that, 5 to 4, invalidated an important provision of the federal Voting Rights Act. This case has been discussed in a prior post while another post summarized the criticism of that decision by former Supreme Court Justice John Paul Stevens.
As widely reported, the U.S. Supreme Court in Shelby County v. Holder recently held unconstitutional a key provision of the Voting Rights Act of 2006.
That provision, section 4, which was part of the original statute enacted in 1965, established a formula to determine which states were subject to pre-clearance by the U.S. Department of Justice or a three-judge federal district court of any changes to the state’s voting procedures. Such pre-clearance approval could be obtained only if the proposed change was shown to have neither “the purpose [nor] the effect of denying or abridging the right to vote on account of race or color.”
Section 4’s formula, as amended in 1975, established as “covered jurisdictions” those States or political subdivisions that had maintained a test or device (literacy or knowledge tests, good moral character requirements, vouchers from registered voters, providing English-only voting material s in places where over 5% of voting-age citizens spoke a language other than English) as a prerequisite to voting as of November 1, 1972, and had less than 50% voter registration or turnout in the 1972 presidential election.
The opinion for the Court by Chief Justice John Roberts (joined by Justices Scalia, Kennedy, Thomas and Alito) held that this formula imposed current burdens on the covered jurisdictions that were not justified by current needs. Section 4, therefore, violated basic principles of equal state sovereignty or autonomy over voting and was unconstitutional. This conclusion was reached even though the Chief Justice acknowledged that “voting discrimination still exists.”
The fundamental factual premise of the opinion was the assertion that the U.S. had significantly changed in racial discrimination in voting since 1965. As the Chief Justice said, “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”
Justice Ginsburg, who was joined by Justices Breyer, Sotomayor and Kagan, issued a stinging dissenting opinion.
She emphasized that the Fifteenth Amendment to the Constitution granted to Congress, not the courts, the power to enact legislation to enforce the Amendment’s ban on racial discrimination in voting. Moreover, the Supreme Court itself repeatedly has held that Congress’ judgment on such matters warrants “substantial deference” and that congressional power is “at its height” when it so acts.
As a result, the proper question for the courts is whether Congress had employed “rational means” in re-enacting section 4 as part of the 2006 Act. According to the dissenting opinion, section 4 meets that test. There was abundant evidence of continued racial discrimination in voting before Congress when it adopted the 2006 Act, and Congress acted with “great care and seriousness” in so doing.
Indeed, Justice Ginsburg stressed, the formula in section 4 is subject to statutory provisions “allowing jurisdictions to ‘bail out’ of preclearance, and for court-ordered “bail ins.” These mechanisms were seen by Congress as “effective means of adjusting the [Act’s] coverage over time.” Therefore, the dissent asserted it is erroneous for the Court’s majority to see the Act as “static, unchanged since 1965. Congress designed the [statute] to be a dynamic statute, capable of adjusting to changing circumstances.”
In short, the dissent says, “Hubris is a fit word for today’s demolition of the [statute].” The majority of the Court “errs egregiously by overriding Congress’ decision.”
The key failure of the majority opinion for me is its narrow focus on the coverage formula in section 4 instead of looking at how the formula works in the statute as a whole. As Justice Ginsburg and previously the D.C. Circuit emphasized, the coverage formula has to be seen with the statutory mechanisms for adjusting coverage to new circumstances through the bail-in or bailout provisions. It is dynamic and capable of adjusting to new circumstances.
Indeed, the Supreme Court did just that in 2009 in Northwest Austin Municipal Utility District No. One v. Holder. The Court’s opinion by Chief Justice Roberts provided a broad reading of the bail out provision to allow the political subdivision in the case to bailout from coverage under sections 4 and 5.
On April 17, 2013, the U.S. Supreme Court issued a decision in Kiobel v. Royal Dutch Petroleum Co. that severely limited the application of the Alien Tort Statute (ATS), which provides that the U.S. district courts “shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the [U.S.].”
The Court unanimously decided that the ATS did not cover a lawsuit by Nigerian plaintiffs for money damages against corporations incorporated in the Netherlands, the U.K. and Nigeria for their alleged aiding and abetting the Nigerian military and police’s beating, raping, killing and arresting of Nigerians and destroying and looting their property, all in Nigeria.
The Court, however, differed, 5 to 4, on the rationale for this conclusion.
The Majority’s Rationale
The opinion for the Court by Chief Justice John Roberts, expressing the majority’s rationale, held that the Court’s presumption against extraterritorial application of federal statutes applies to claims under the ATS and that nothing in the ATS rebutted that presumption. Therefore, said the Chief Justice, this “case seeking relief for violations of the law of nations occurring outside the [U.S.] . . . is barred.”
This presumption, according to Roberts, was recognized in these precedents from the Court in 1957, 1991, 2007 and 2010, which were referenced by him as follows:
The 1957 case, Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147 (1957), was merely quoted in the 1991 case to say, “For us to run interference in . . . a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain.”
The 1991 case, EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991), said this presumption “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.” After the above quotation from the Benz case, the Court in the 1991 case continued, ” The presumption against extraterritorial application helps ensure that the Judiciary does not erroneously adopt an interpretation of U.S. law that carries foreign policy consequences not clearly intended by the political branches.”
The 2007 case, Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454 (2007), said the “presumption [assumes] that [U.S.] . . . law governs domestically but does not rule the world.”
The 2010 case, Morrison v. National Australian Bank Ltd., 561 U.S. ___, ___ (2010), said this canon of statutory construction provides that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” This case, noted the Chief Justice, said “the question of extraterritorial application was a ‘merits question,’ not a question of jurisdiction.”
In discussing whether and how this presumption applied to the ATS, the Chief Justice first disposed of the Morrison case’s limitation of the presumption to the merits whereas the ATS was only jurisdictional as established by the Supreme Court in Sosa v. Alverez-Machain, 542 U.S.692, 713 (2004). Said Roberts, “the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.”
Roberts then found nothing in the ATS itself that suggested a congressional intent that it have extraterritorial application. It refers to “violations of the law of nations,” but such violations can occur in the U.S. It says it covers “any” civil action, but the Court in decisions in 1949 and 2005 had established that generic terms like “any” or “every” do not rebut the presumption. It covers actions for “torts,” but that word does not evidence such an intent.
Nor, according to Roberts, did the historical context of the 1789 adoption of the ATS overcome the presumption. At the time, as Sosa noted, two of the three recognized violations of the law of nations at the time–violation of safe conducts and infringement of the rights of ambassadors–had no extraterritorial application.
The other recognized violation in 1789–piracy–was not as easy for the Chief Justice to get around. He said, “Piracy typically occurs on the high seas, beyond the territorial jurisdiction of the [U.S.] . . . or any other country.” Although the Court “has generally treated the high seas the same as foreign soil for purposes of the presumption,” Roberts refused to regard that as evidence of congressional intent for extraterritorial application. Said Roberts, “Applying U.S. law to pirates . . . does not typically impose the sovereign will of the [U.S.] . . . onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences. Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction.”
Finally, according to Roberts, “there is no indication that the ATS was passed to make the [U.S.] . . . a uniquely hospitable forum for the enforcement of international norms . . . It is implausible to suppose that the First Congress wanted their fledgling Republic–struggling to receive international recognition–to be the first [custos morum or guardian of manners or morals of the whole world]. Indeed, the parties offer no evidence that any nation, meek or mighty, presumed to do such a thing.”
Applying these principles to the Kiobel case itself, Roberts said “all the relevant conduct took place outside the . . . [U.S.]. And even where the claims touch and concern the territory of the . . . [U.S.], they must do so with sufficient force to displace the presumption against extraterritorial application.” A “mere corporate presence” in the U.S. such as an office of a corporate affiliate of the corporate defendants in this case had would not suffice.
The Minority’s Rationale
The minority’s rationale was set forth in the concurring opinion of Justice Breyer, which was joined by Justices Ginsburg, Sotomayor and Kagan.
Breyer first rejected use of the presumption against extraterritoriality because the ATS’ use of “alien,” “treaties” and “the law of nations” clearly demonstrate that Congress had foreign matters in mind.
Moreover, piracy was clearly contemplated as covered by the statute in 1789 and takes place abroad. The Chief Justice’s treatment of piracy, however, Breyer implied, is erroneous. Says Breyer, “the robbery and murder that make up piracy do not normally take place on the water; they take place on a ship. And a ship is like land, in that it falls within the jurisdiction of the nation whose flag it flies.” Thus, ‘applying U.S. law to pirates’ does typically involve applying our law to acts taking place within the jurisdiction of another sovereign.”
On the other hand, Breyer agreed with Roberts that pirates “were fair game wherever found, by any nation,” but not, as Roberts said, because they did not operate within any jurisdiction, but because pirates were “common enemies of all mankind and all nations have an equal interest in their apprehension and punishment.” Today, according to Breyer, torturers and perpetrators of genocide are today’s pirates.
Breyer then said that international jurisdictional principles justified the conclusion that ATS jurisdiction exists where “(1) the alleged tort occurs on American soil, [or] (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest.” One such national interest, according to Breyer, is “preventing the [U.S.] from become a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”
With respect to Kiobel itself, Breyer noted that the corporate defendants were foreign corporations who were present in the U.S. only through a small office of a corporate affiliate, that the plaintiffs are not U.S. nationals, that the conduct at issue took place abroad and that the alleged illegal corporate conduct was not direct, but accessory. It, therefore, “would be farfetched to believe . . . that this legal action helps to vindicate a distinct American interest.”
The majority’s rationale essentially obliterates the 34 years of ATS jurisprudence carefully developed by the lower federal courts. It should lead to the immediate dismissal of many pending ATS cases.
I disagree with the result in this case and with the majority’s rationale because I believe that the ATS has been an important way of expanding the reach of international human rights norms and because the Congress in these 34 years has not chosen to amend the ATS to negate this jurisprudential development. Indeed, when Congress in 1991 adopted the Torture Victims Protection Act, it recognized and approved this ATS jurisprudence.
Moreover, the Supreme Court’s creation and elaboration of the presumption against extraterritorial application, I believe, is a development of the last 60 years and was not clearly known to the Congress when it initially adopted the ATS in 1789. It, therefore, seems unfair and inappropriate to employ this interpretative presumption to construe the ATS. In more recent years, on the other hand, the Congress should be aware of this presumption in drafting statutes.
I also continue to be baffled by everyone’s failure to include in the analysis of the congressional intent behind the ATS the fact that Congress in 1948 re-enacted the ATS as part of the Judicial Code (title 28 of the U.S. Code). That year–1948– was a very important year in the development of the law of nations regarding human rights. The U.N. Charter–a treaty ratified by the U.S.–was three years old, and one of its purposes was “promoting and encouraging respect for human rights” (Article 1(3)) while its Economic and Social Council was directed to set up a commission “for the promotion of human rights” (Article 68). Such a commission was established, and in 1948 its Universal Declaration of Human Rights and its Convention on the Prevention and Punishment of the Crime of Genocide were approved by the U.N. General Assembly. Such an appreciation should broaden the types of “torts in violation of the law of nations” beyond the three discussed by the Chief Justice.
Justice Breyer’s legitimate concern for the U.S. interest in not being a safe haven for the common enemies of mankind, as discussed in a prior post, has been recognized by the Congress in several statutes–the Intelligence Reform and Terrorism Prevention act of 2004 and the Magnitsky Act of 2012–and by the legal proceedings to remove or deport such common enemies of mankind from the U.S. by the Human Rights Violators and War Crimes Center of the U.S. Immigration and Customs Enforcement agency and by the criminal prosecution of other such individuals for immigration fraud and perjury.
Finally, we must remember that this is a case of statutory interpretation, and Congress could always amend the ATS or adopt a new statute to overrule this decision. In a future post, I will set forth a draft outline of such a new statute even though I am not hopeful that this dysfunctional U.S. Congress will be prepared to take such action in the near future.
 Many prior posts have discussed the ATS. Some of these focused on the Kiobel case itself.
 The Court did not address another issue presented by this case–whether corporations could be held liable under the ATS.
 The Chief Justice’s opinion was joined by Justices Scalia, Kennedy, Thomas and Alito. Justice Kennedy also authored a short concurring opinion, which stated, “Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the [Torture Victims Protection Act] . . . nor by the reasoning and holding of today’s case; and in these disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.” Another concurring opinion was submitted by Justice Alito joined by Justice Thomas; it said, “a putative ATS cause of action will fall within the scope of the presumption against extraterritoriality–and will therefore be barred–unless the domestic conduct is sufficient to violate an international law norm that satisfies Sosa‘s requirements of definiteness and acceptance among civilized nations.”
 For example, the Supreme Court’s decision should lead to the dismissal of the ATS claims against Ernesto Zedillo, the former President of Mexico, but the claims against him under the Torture Victims Protection Act should survive for the court’s ruling on the immunity issue.
As has been widely reported, the U.S. Supreme Court on June 28, 2012, decided, 5-4, that the Affordable Care Act (ACA) was constitutional under Congress’ constitutional power in Article I, Section 8(1) to “lay and collect taxes.” The Court’s Chief Justice and four of the Court’s Associate Justices also said in separate opinions that this statute was not constitutional under Congress’ constitutional power in Article I, Section 8(3) to “regulate commerce . . . among the several States.” The other four Associate Justices came to the opposite conclusion that the statute was constitutional under this provision.
This post will review what was said about the interstate commerce clause in the four opinions in the case and then analyze the status of that constitutional provision after this decision.
The Supreme Court’s Opinions on the Interstate Commerce Power
Chief Justice John Roberts’ opinion said that the Affordable Care Act was not constitutional under the interstate commerce clause. The same conclusion was reached in the joint dissenting opinion of Associate Justices Kennedy, Scalia, Thomas and Alito, and Associate Justice Thomas added a separate dissent to express an additional reason why he thinks the statute was invalid under this clause.
The opposite result was reached in the opinion by Associate Justice Ginsburg that was joined by Associate Justices Breyer, Sotomayor and Kagan.
First, Roberts gave a fair summary of the existing law on the Constitution’s interstate commerce provision. He said, “Our precedents read that to mean that Congress may regulate ‘the channels of interstate commerce,’ ‘persons or things in interstate commerce,’ and ‘those activities that substantially affect interstate commerce.’ The power over activities that substantially affect interstate commerce can be expansive. That power has been held to authorize federal regulation of such seemingly local matters as a farmer’s decision to grow wheat for himself and his livestock, and a loan shark’s extortionate collections from a neighborhood butcher shop.” For this summary, Roberts cited Wickard v. Filburn, 317 U. S. 111 (1942),which previously had been criticized by Justice Scalia, and Perez v. United States, 402 U. S. 146 (1971). (Roberts Slip Op. at 4-5.)
Roberts emphasized this concession when he said, “[I]t is now well established [by the Supreme Court’s prior cases] that Congress has broad authority under the Clause. We have recognized, for example, that ‘[t]he power of Congress over interstate commerce is not confined to the regulation of commerce among the states,’ but extends to activities that ‘have a substantial effect on interstate commerce.'” Moreover, he said, “Congress’s power . . . is not limited to regulation of an activity that by itself substantially affects interstate commerce, but also extends to activities that do so only when aggregated with similar activities of others.” (Id. at 17-18.)For this last point he again cited the Wickard case. (Id.)
Nevertheless, Roberts continued, “As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching ‘activity.'” (Id. at 19.) The Affordable Care Act, however, according to Roberts, would require people to do something, i.e., to buy health insurance. Such a requirement, said Roberts, distinguished all of the prior Supreme Court precedents and, therefore, invalidated the statute. (Id. at 18-24.)
2. Associate Justices Kennedy, Scalia, Thomas and Alito’s Dissenting Opinion.
Although the joint dissenting opinion did not specifically endorse Roberts’ interpretation and conclusion, it implicitly did so. It did not attempt to overrule any of the Supreme Court’s precedents on the interstate commerce clause. Instead, it said the Wikard case, which Scalia previously had criticized, “held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated” and “always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. ” (Joint Dissent Slip. Op. at 2-3.) But Wickard and other precedents, according to the dissenters, “involved commercial activity.” The ACA, on the other hand, attempted to regulate economic inactivity, i.e., the failure to buy health insurance, and, therefore, was unconstitutional under the interstate commerce clause. (Id. at 2-12.)
Justice Thomas was a co-author of this joint dissent and, therefore, agreed with all of its contents. His separate dissenting opinion was issued to reiterate his previously expressed view that the Court’s “‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” (Thomas Slip Op.)
3. Associate Justice Ginsburg’s Opinion.
Justice Ginsburg started with her summary of the Supreme Court’s precedents on the interstate commerce clause. She said, “Consistent with the Framers’ intent, we [Supreme Court Justices] have repeatedly emphasized that Congress’ authority under the Commerce Clause is dependent upon ‘practical’ considerations, including ‘actual experience.'” The Court has recognized that Congress has the “power to regulate economic activities ‘that substantially affect interstate commerce'” and regulate “local activities that, viewed in the aggregate, have a substantial impact on interstate commerce.” (Ginsburg Slip Op. at 14-15.)
She added from the Court’s precedents regarding the impact of the Constitution’s Fifth Amendment’s “due process” and implied equal protection clause that the Court repeatedly had said that it owed “a large measure of respect to Congress when it frames and enacts economic and social legislation” and that when “appraising such legislation, we ask only (1) whether Congress had a ‘rational basis’ for concluding that the regulated activity substantially affects interstate commerce, and (2) whether there is a ‘reasonable connection between the regulatory means selected and the asserted ends.'” In addition, Ginsburg stated, “In answering these questions, we presume the statute under review is constitutional and may strike it down only on a ‘plain showing’ that Congress acted irrationally.” (Id. at 15-16.)
Ginsburg then criticized Roberts’ supposed distinction between the Court’s precedents in this area and the Affordable Care Act. That distinction, she said, had no support in those precedents, and his minor premise–the Affordable Care Act required some people to buy a product (health care) they did not want– was erroneous. (Id. at 18-31.)
The Interstate Commerce Power After the Supreme Court’s Decision
Before the Supreme Court issued its decision in this case, I was concerned that the shrill cries of columnist George Will and two judges on the Court of Appeals for the District of Columbia Circuit that called for the Supreme Court to overrule 75 years of Supreme Court precedents on the scope of the interstate commerce clause would resonate with the five so-called conservative Justices of the Supreme Court. My worries were exacerbated by the initial reports that those five Justices had concluded that the Affordable Care Act did not satisfy their view of what that clause allowed.
When I had read the Court’s opinions, however, I discovered that eight of the nine Justice had not overruled any of those Supreme Court precedents and indeed essentially had endorsed them. Only Justice Thomas called for overruling one subset of those precedents, i.e., those allowing Congress to adopt laws under the interstate commerce clause if there were substantial effects on that commerce from local activities.
Therefore, all of those cases are still good law on the expansive nature of the federal power over such commerce. As an advocate for strong federal powers for the U.S. in the 21st century, I am pleased with this result.
As noted above, five of the current nine Justices believe that all the other Supreme Court precedents over at least the last 75 years can legitimately be distinguished from this case over the validity of the Affordable Care Act on the ground that all of the precedents involved regulation of economic activity whereas this current case involved attempted regulation of economic inactivity. Is this a legitimate distinction?
Justice Ginsburg and three of her colleagues did not think so as previously discussed. I leave it to constitutional scholars to analyze the validity of this purported distinction.
There is also a serious question as to whether Roberts’ opinion on the interstate commerce clause (when coupled with the similar discussion in the joint dissent) together constitute a binding decision of the Court under the doctrine of stare decisis.
First, there is no official “Opinion of the Court” on the interstate commerce issue that could be considered as the basis for stare decisis. Roberts’ opinion on this issue is his alone. The similar opinion of the other four Justices (Kennedy, Scalia, Thomas and Alito) is a dissenting opinion that does not express concurrence in Roberts’ opinion on the issue.
This careful reading of the opinions, however, may be overcome by section III-C of the Roberts’ opinion on the taxing power issue that states, “The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from regulated activity.” This section of the Roberts’ opinion is concurred in by four other Justices (Ginsburg, Breyer, Sotomayor and Kagan), but they disagreed with this interpretation of the commerce clause. (Roberts Slip Op. at 41-42; Ginsburg Slip Op. at 2-36.) And Justice Thomas in his own dissent said, “The joint dissent and Chief Justice Roberts correctly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.” Perhaps these oddities are merely evidences of plain sloppiness in finishing the opinions in this case.
Second and more important, the opinions of Roberts and the four dissenters on the interstate commerce issue might be regarded as dicta and, therefore, not binding on the Court in subsequent cases or on lower federal courts. Since the Affordable Care Act was held to be constitutional on a different ground (the power to tax), then all of the discussion about the interstate commerce clause was not necessary to the decision and, therefore, dicta.
Justice Ginsburg was alluding to this principle in her opinion when she said that Roberts’ conclusion that the statute was constitutional under the taxing power should have meant there was “no reason to undertake a Commerce Clause analysis that is not outcome determinative.” (Ginsburg Slip. Op. at 37 n.2.)
Roberts responded to this argument in his opinion: “It is only because the Commerce Clause does not authorize such a command [to buy health insurance] that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that . . . [the relevant statutory provision] can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.” (Roberts Slip Op. at 44-45.)
All of this discussion might be regarded as hyper-technical because so long as the Court’s composition remains the same, a majority (five Justices) is clearly on record on the limitation on the commerce clause power expressed in their opinions.
There is also disagreement on the significance of the new limitation on the interstate commerce power announced by Roberts and the four dissenters. Justice Ginsburg’s opinion says that Roberts ‘ opinion on the issue exhibits “scant sense and is stunningly retrogressive” and a “crabbed reading of the Commerce Clause [that] harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.” (Ginsburg Slip Op. at 2-3, 37.) This view was echoed by George Will and other commentators who said the reading of the commerce clause was an ultimate victory for libertarians and conservatives. However, one of those conservatives–John Yoo— said this reading of the clause “does not put any other federal law in jeopardy and is undermined by its ruling on the tax power” and in fact is “a constitutional road map for architects of the next great expansion of the welfare state.”
I am an agnostic on the question of the significance of the new limitation. I think Justice Ginsburg overstates the fear of horrible consequences because at least four of the Justices who articulated the new limitation also endorsed the 75 years of precedents expanding the scope of the interstate commerce power. Moreover, Chief Justice Roberts in his opinion in the Citizens United case articulated his concept of stare decisis that makes it unlikely that he would countenance such a large-scale overruling of precedents, in my opinion. A lot depends upon who wins the 2012 presidential election and who will be appointed to the Court over the next four years.
It is interesting and somewhat ironic that while the Supreme Court was struggling with legal arguments that would restrict the power of the U.S. federal government to respond to national economic problems, European countries were struggling with how to create a central power or authority to rescue the European economy and currency from imminent collapse.
On February 28th the U.S. Supreme Court heard arguments in Kiobel v. Royal Dutch Petroleum (Sup. Ct. No. 10-1491). The transcript of that hearing is available online.
This case involved claims by a putative class of Nigerians against a corporation (Royal Dutch Petroleum Co. (Shell)) for allegedly assisting in certain human rights violations in Nigeria in 1993-95. Prior posts reviewed the procedural background of this case and the Second Circuit decision rejecting such liability.
The claims in this case were asserted under the U.S. Alien Tort Statute (ATS) that provides that U.S. federal district courts have “jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” (Earlier posts have reviewed the history of the ATS for the periods 1789-1979, 1980, 1980-2004, the U.S. Supreme Court decision in 2004 and 2004-present.)
Merits Issue: Are Corporations Liable Under the ATS?
A review of the transcript of the hearing reveals that the entire hour was devoted to only one of thetwo issues previously identified by the Court as being raised by this case:
Whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide, as the court of appeals decisions provides, or if corporations may be sued in the same manner as any other private party defendant under the ATS for such egregious violations, as the [U.S.] Eleventh Circuit [Court of Appeals] has explicitly held.
All of the Justices (except Justice Thomas) actively participated in this argument with comments and questions that make it difficult to make any prediction of the ultimate decision in the case, except that it probably will be a decision by a divided Court. Here are samples of some of the comments and questions.
Justice Samuel Alito asked, “What business does a case like [this alleging human rights violations in Nigeria] have in the courts of the United States? There’s no connection to the United States whatsoever.”
Justice Ruth Bader Ginsburg tried to focus the discussion on the precise issue raised by the case, whether it is only individual defendants [who are liable under ATS] or are corporate defendants also liable?”
Justice Stephen Breyer apparently had difficulty with the Second Circuit’s categorical rule in this case that corporations could never be liable under the ATS. He said he could think of instances where that should not be the case. One he cited was “Pirates Incorporated.”
Justice Elena Kagan also expressed skepticism about an assertion by the attorney for the defendant-respondent that international human rights treaties excluded corporations from liability. Justice Kagan said she thought “the international sources are simply silent as to this question [of corporate liability].” She also observed that such treaties were silent on this issue “mostly because all of these are written to prohibit certain acts,” rather than focusing on who commits such acts.
Justice Anthony Kennedy, who often is seen as the swing vote when the Court is divided, asked the first question almost before the attorney for the plaintiffs-petitioners could open his mouth. Justice Kennedy said, “For me, the case turns in large part on this,” (quoting from the defendant-respondent’s brief), ‘International law does not recognize corporate responsibility for the alleged offenses here.’ Justice Kennedy immediately followed with this quotation from an amicus brief by Chevron Corporation, which is a defendant in another ATS case, “No other nation in the world permits its courts to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection.”
Justice Anthony Kennedy also noted that international criminal law made a distinction between individuals and corporations with only the former being subject to criminal sanctions. Yet later he mentioned the legal principle of respondeat superior (that a corporation or other principal is legally responsible for the wrongs of its employee or agent under certain conditions) and said that it was a very simple proposition of U.S. law and perhaps implicitly suggested it was applicable in this case.
Subject Matter Jurisdiction Issue
The second issue raised by this case was not discussed at the February 28th hearing. It was the following: Whether the issue of corporate civil tort liability under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, is a merits question, as it has been treated by all courts prior to the decision below, or an issue of subject matter jurisdiction, as the court of appeals held for the first time.
The Second Circuit in an opinion by Judge Cabranes held, without much discussion, that the ATS incorporates any limitation arising from customary international law on whom may properly be sued as a defendant under the statute and that this was a requirement for subject-matter jurisdiction of the federal courts that was not met in this case.
In my opinion, the Second Circuit was clearly wrong on this conclusion on subject-matter jurisdiction. The ATS states that federal courts have “jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Thus, to establish subject-matter jurisdiction, (i) the plaintiff must be an “alien” (a non-citizen of the U.S.); (ii) the lawsuit must be for a tort; and (iii) the tort must allegedly be set forth in “the law of nations” (customary international law) or a treaty of the U.S. All of these requirements are met in this case. It then becomes an issue on the merits as to whether the alleged conduct in fact violates the “law of nations” or a treaty of the U.S.
Moreover, the ATS does not specify as to whom the defendant must be, unlike the Torture Victims Protection Act (TVPA) which states the defendant has to be an “individual.” If the ATS did specify in some fashion what kind of defendant was permissible, then that would make the nature of the defendant an issue for subject-matter jurisdiction. (Whether the word “individual” in the TVPA includes corporations was the issue presented in the other case heard by the Supreme Court on February 28th.)
The procedural posture of this case makes my opinion, if it is correct, an important one for The Supreme Court’s disposition of this case. Federal courts are courts of limited jurisdiction requiring such courts always to determine if they have such jurisdiction and prohibiting the litigating parties from conferring such jurisdiction on the courts by not themselves raising problems over such jurisdiction. This basic principle enabled Judge Cabranes in the Second Circuit to raise, discuss and decide the issue of corporate liability under the ATS in this case even though that issue had not been briefed or argued by the parties themselves.
The failure of the defendant Shell to raise the merits issue of corporate liability at the trial court and at the Second Circuit should mean that it is deemed to have waived the issue.
Under this analysis the Supreme Court should reverse the Second Circuit on procedural grounds and not reach the substantive issue of corporate liability.
A Supreme Court decision in this case is expected by the end of June. I reiterate that this is a case of statutory interpretation and the Court’s development of federal common law, and at any time the Congress with a presidential signature could amend the statute to make corporate liability express or to exclude such liability explicitly.
Under the infamous Citizens United decision the Court treats corporations as individual human beings for purposes of the Free Speech clause of the First Amendment to the U.S. Constitution and the right to make unlimited political contributions. If the Court were to decide that corporations, unlike individual human beings, are not liable under the ATS, this would and should present the Court with at least a public relations problem.
Two months ago I attended a dinner in New York City in honor of Richard Smethurst,  the retiring Provost of Oxford University’s Worcester College.
Richard and I were students together at Worcester, 1961-63, and studied together (or revised together, as they say at Oxford) for the final examinations (or Schools in Oxford parlance) in Philosophy, Politics and Economics (PPE). Richard recalled that our economics tutor told us and the other PPE students at the College that when he “took Schools” he had answered the first four questions on the examination paper to show the examiners that he knew everything. Richards also remembered that I thought our tutor’s suggestion was stupid or silly and instead said we should select the four questions out of the 12 to 15 on the paper for which we were best prepared.
Richard and I then embarked on our own revision together in the spring of 1963. In that effort I prepared the answer to a possible question on Public Finance that luckily turned up on the actual examination. Richard and I both answered that question, and we both received Firsts (the highest mark).
In New York I recounted this story in after-dinner comments to the group and joked that I was responsible for Richard’s receiving a First.
Also at the dinner was Bill Bradley, the former basketball player and U.S. Senator, who was a Rhodes Scholar and PPE student at Worcester, 1965-68, and who had Smethurst as his economics tutor.  Bradley told the group that while he was in the Senate, Smethust spoke at a dinner in Washington, D.C. and said that Bradley was the best economics student he had ever had . . . who became a U.S. Senator. Left unsaid at the earlier dinner, Bradley told us in New York, was the fact that he was Smethurst’s only economics student who had become a U.S. Senator.
At my dinner table were Bill Sachs, who was the brother of Daniel M. Sachs, and Dan’s widow, Joan Sachs Shaw. Dan was an all-Ivy League football player at Princeton University and a Rhodes Scholar at Worcester, 1960-63. Dan played for the Oxford University rugby team, but in 1961 was”aced” out of playing against the Cambridge University team for the all important “Oxford Blue” honor when the Oxford captain prevailed upon Pete Dawkins to return to the team for the Cambridge match. (Dawkins was a running back for Army who in 1958 won the Heisman Trophy for the best football player in the U.S. and who was a Rhodes Scholar PPE student at another Oxford college, 1958-62.)
Dan Sachs was a friend of mine during those Oxford days, and In June 1963 he was my best man when Mary Alyce and I were married in Oxford.
After Dan’s untimely death in 1967, friends established in his honor a Sachs Scholarship for a Princeton graduate to attend Worcester College. The most famous Sachs Scholar so far is Elena Kagan, now U.S. Supreme Court Associate Justice.
On April 30th at the University of Chicago Law School’s reunion week-end , two of its distinguished graduates, Geoffrey Stone and Robert Barnett, spoke about some interesting people with whom they have interacted: Barack Obama, Bill Clinton, Mattie Stepanek and five judges (Circuit Judges J. Skelly Wright and Minor Wisdom and U.S. Supreme Court Justices William Brennan, Byron White and Elena Kagan).
Geoffrey R. Stone is a 1971 graduate of the Law School, law clerk to U.S. Circuit Judge J. Skelly Wright (1971-72) and U.S. Supreme Court Justice William Brennan (1973). In 1973 he returned to the Law School to join its faculty where he has been ever since. He was Dean of the Law School (1987-93) and Provost of the University (1993-2002). He is now the Edward H. Levi Distinguished Service Professor at the Law School.
Stone recounted the story of the Law School’s recruitment of Barack Obama to join the faculty. In 1991 Michael McConnell, then a professor at the Law School and now at the Stanford Law School, told Professor Douglas Baird, who was the chairman of the faculty appointments committee at the time, about Obama, then an impressive editor at the Harvard Law Review who was doing an excellent job editing McConnell’s submission. Baird reached out to Obama and asked him about teaching, and Obama agreed to come for interviews at the Law School.
Stone recalled that when he met Obama for the first time, Barack at age 26 already had a real political persona. “It was partly a kind of magnetism, partly a kind of grace, a sense of his own presence. You couldn’t mistake that you were with somebody who thought he was somebody—not in a bad way, but in a compelling way.” After Obama left, Stone’s secretary said,” He’s going to be governor of Illinois someday.”
The Law School then made an offer to Obama to be a full-time assistant professor. Obama refused the offer as he already had plans to write a book on voting rights. So Stone and Baird took a different approach and offered Obama a Law and Government Fellowship, which would allow him to work on his book and would perhaps lead him to develop an interest in teaching. Obama accepted the offer and began the fellowship in the fall of 1991. The book, instead of being about voting rights, was the autobiographical Dreams of My Father.
The next year Obama became a Lecturer (and a Senior Lecturer in 1996) and continued to teach at the Law School until he was elected to the U.S. Senate in 2004. Obama taught “Constitutional Law III: Equal Protection,” “Voting Rights and the Democratic Process,” and a seminar entitled “Current Issues in Racism and the Law.” After his election as President, glowing comments were made about his time at the Law School:
Stone said, “As a teacher and colleague, [Obama] was always curious, probing, open-minded, and rigorous.”
Professor Baird said, “From the open and robust debates [Obama] generated in every class to the many more informal displays of his tenacious mind and incisive wit, it was a great privilege to have had Barack Obama with us for twelve years.”
Davis Strauss, the Gerald Ratner Distinguished Service Professor of Law, offered that “at the Law School we have known for a long time . . . that Barack Obama is both amazingly gifted and a deeply human person.”
Stone also hired Elena Kagan for the Law School’s faculty (1991-95), and he joked that he has the distinction of being the only law school dean who hired two people who later became President of the U.S. and an Associate Justice of the U.S. Supreme Court.
Judge Wright and Justice Brennan
Stone said it was a great privilege to be a law clerk for both of these judges, who made him feel like he was a part of their families. Brennan was usually a very cheerful man to one and all in the Supreme Court building.
Robert B. Barnett is also a 1971 graduate of the University of Chicago Law School and a former law clerk for Circuit Judge Minor Wisdom (1971-72) and U.S. Supreme Court Justice Byron White (1972-73). Barnett is now a partner in the Washington, D.C. law firm of Williams and Connolly, LLP. He was ranked Number One on Washingtonian magazine’slistof“Washington’s Best Lawyers” and as one of “The 100 Most Influential Lawyers in America” by The National Law Journal. He represents major corporations in litigation matters, corporate work, contracts, crisis management, transactions, government relations, and media relations.
Mr. Barnett is also one of the premier authors’ representatives in the world. His clients have included Barack Obama, Bill Clinton, George W. Bush, Hillary Rodham Clinton, Laura Bush, Bob Woodward, Lynne Cheney, Alan Greenspan, James Patterson, Katharine Graham, Daniel Silva, Tim Russert, Stephen White, Barbara Streisand, George Will, Art Buchwald, James Carville, Mary Matalin, William Bennett, Mary Higgins Clark, Cokie Roberts, several former U.S. Secretaries of State, numerous U.S. Senators, Tony Blair of the United Kingdom, Queen Noor of Jordan and Benazir Bhutto of Pakistan. He is also one of the leading representatives of many famous television news correspondents and producers. Mr. Barnett also provides legal counsel to former government officials in conjunction with their transitions to the private sector. 
His legal practice as an authors’ representative, he said, grew out of his helping Geraldine Ferraro prepare for the vice presidential candidates debate in 1984 when he played the role of George H.W. Bush in practice debates. After the Ronald Reagan-George H.W. Bush ticket defeated the Mondale-Ferraro team, she wrote a book about her political experiences and hired Barnett as her lawyer in negotiating a contract with the publisher. This was his first book publishing deal.
Judge Minor Wisdom and Justice Byron White
Judge Wisdom, much like Judge Skelly Wright, was a warm human being and an excellent judge. Justice White, while also an excellent judge, was more formal and reserved. But not on the basketball court where White, a former professional football and basketball player, regularly challenged the law clerks in hard-fought games.
In response to a question about who were the most impressive people he had met and worked with, Barnett said there were two people.
The first was Bill Clinton. Clinton, he said, knew more people than anyone else. And Clinton knew more about more subjects and with greater depth than anyone he has ever met.
The second person named by Barnett was surprising to me in that he did not name one of the other famous people he had represented. Instead he said it was someone I had never heard of: Mattie (whose last name I could not catch). Barnett said that Mattie was a young poet who had appeared on the Oprah Winfrey television show, and Barnett had had the privilege of negotiating an excellent book deal for him. Mattie was an exceptionally gifted and brave person, Barnett said, adding that Mattie had died of a rare form of muscular dystrophy at age 13.
After I got home and googled “Barnett & Mattie & Oprah,” I discovered Mattie’s last name was Stepanek and learned more about him. He had published six books of poetry and one book of essays, all of which had been on the New York Times‘ bestsellers lists. He also had become a peace advocate and motivational speaker and had testified on Capitol Hill on behalf of peace, people with disabilities and children with life-threatening conditions. Over 1,300 people attended his funeral, and former President Jimmy Carter delivered the eulogy. Carter said,
“We have known kings and queens, and we’ve know presidents and prime ministers, but the most extraordinary person whom I have ever known in my life is Mattie Stepanek. His life philosophy was “Remember to play after every storm” and his motto was: “Think Gently, Speak Gently, Live Gently.” He wanted to be remembered as “a poet, a peacemaker, and a philosopher who played.”
Id.; Montgomery, Washington lawyer Bob Barnett is the force behind many political book deals, Wash. Post., March 7, 2010.
 Mr. Barnett has worked on eight national presidential campaigns, focusing on debate preparation for the Democratic candidates in 1976, 1980, 1984, 1988, 1992, 2000, 2004 and 2008. He played the role of George H.W. Bush in practice debates with Michael Dukakis in 1988, and practice-debated Bill Clinton more than 20 times during the 1992 campaign. In 2000, he played the role of Dick Cheney in practices with Joe Lieberman. In 2004, he played the role of Dick Cheney in practices with John Edwards. In 2000 and 2006, he assisted Hillary Rodham Clinton with her Senate debate preparations and helped prepare her for 23 presidential primary debates in 2008. Id.