Justice Samuel Alito – dwkcommentaries

President Trump Prepares To Rule By Decree

There are grounds to believe that the Trump Administration is preparing to bypass Congress and attempt to rule by presidential decree on many important issues in the months before this year’s election. We see this in Trump’s comments in his June 19^th Fox News interview by Chris Wallace and articles about the Administration’s recent consultations with Professor John Yoo regarding his interpretation of the Supreme Court’s June 18^th decision invalidating the Trump Administration’s 2017 rescission of the DACA (Deferred Action for Childhood Arrivals) program.

Trump Comments in Fox News Interview[1]

Near the end of the lengthy Fox News interview of President Trump on July 19, Wallace said that Trump did not yet have a plan to replace Obamacare. Trump disagreed in the following lengthy response:

“We’re signing a health care plan within two weeks, a full and complete health care plan that the Supreme Court decision on DACA gave me the right to do. So we are going to . . . sign an immigration plan, a health care plan, and various other plans. And nobody will have done what I’m going to do in the next four weeks. The Supreme Court gave the president of the United States powers that nobody thought the president had, by approving, by doing what they did—their decision on DACA. And DACA’s going to be taken care of also. But we’re getting rid of it because we’re going to replace it with something much better. What we got rid of already, which was most of Obamacare, the individual mandate. And that I’ve already won on. And we won also on the Supreme Court. But the decision by the Supreme Court on DACA allows me to do things on immigration, on health care, on other things that we’ve never done before. And you’re going to find it to be a very exciting two weeks.”

Note that Trump cleverly did not mention John Yoo by name as the legal architect of this strategy.

Wallace apparently was not prepared for this answer, because he had no follow-up questions and instead immediately switched to asking about the Mary Trump book, Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man.

.The Supreme Court’s Decision on DACA[2]

The Court in a 5-4 Opinion by Chief Justice Roberts invalidated the 2017 decision by the Acting Secretary of the Department of Homeland Security (DHS), Elaine C. Duke, to terminate the Deferred Action for Childhood Arrivals (DACA) because that termination was “arbitrary and capricious” even though the Attorney General had determined that the DACA program was illegal. The defects in the DHS termination decision, said the Court, were failure to recognize that the defining feature of DACA was deferring removal of DACA recipients from the U.S. and the failure to assess “the existence and strength of any reliance interests” on that deferral by DACA recipients.

Therefore, the only valid way for the DHS to terminate the DACA program, said the Court, was to proceed under the cumbersome Administrative Procedure Act.

Mr. Justice Thomas in his dissenting opinion for himself and Justices Alito and Gorsuch, said, “DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception. The majority does not even attempt to explain why a court has the authority to scrutinize an agency’s policy reasons for rescinding an unlawful program under the arbitrary and capricious microscope. The decision to countermand an unlawful agency action is clearly reasonable. So long as the agency’s determination of illegality is sound, our review should be at an end.”

Moreover, said Mr. Justice Thomas, “Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS’ initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government.”

Yoo’s Interpretation of That Supreme Court Case[3]

Yoo, the Emmanuel S. Heller Professor of Law and Director of the Public Law & Policy Program at the University of California Berkeley School of Law, believes that the Supreme Court’s opinion is erroneous. In Yoo’s words, the opinion “upends the text, structure, and history of the Constitution, which generally prevents the occupants of a branch of government (who are temporary, after all) from binding their successors. . . . When a president wants to repeal an executive order, all he need do is issue a new executive order. . . . Recognizing a plenary power to reverse previous acts, contrary to the Supreme court’s DACA rule, comports best with the purposes behind the creation of the executive branch.”

Nevertheless, under this recent Supreme Court decision, in what may have intended as a reductio ad absurdum, Yoo said, “ presidents, including President Trump, may now stop enforcing laws they dislike, hand out permits or benefits that run contrary to acts of Congress and prevent their successors from repealing their policies for several years.” Thus, Trump, for example, could decline “to enforce the tax laws, and economic regulations . . . issue permits allowing federally financed or regulated construction project fully s to go forward . . . [and] defer action under environmental laws.”

In any event, we need an attorney knowledgeable about constitutional and federal administrative law to analyze and critique Yoo’s analysis of this Supreme Court opinion.

Trump Consultations with John Yoo[4]

We now have evidence that President Trump and others in the White House have been consulting with Yoo about this subject.

At least that is what Professor Yoo said to Julian Borger, the author of an article in the Guardian of London on these issues. There also are reports by Axios that “President Trump and top White House officials are privately considering a controversial strategy to act without legal authority to enact new federal policies-starting with immigration,” that a copy of Yoo’s article on the subject in the National Review was “spotted atop Trump’s desk in the Oval Office” and that “White House thinking is being heavily influenced by John Yoo.’”

Reactions[5]

Yoo’s interpretation of this case was called “indefensible” by constitutional lawyer and professor Laurence Tribe with these additional comments. “I fear that this lawless administration will take full advantage of the fact that judicial wheels grind slowly and that it will be difficult to keep up with the many ways Trump, aided and abetted by Bill Barr as attorney general and Chad Wolf as acting head of homeland security, can usurp congressional powers and abridge fundamental rights in the immigration space in particular but also in matters of public health and safety.”

Of the same opinion is Alka Pradhan, a Lecturer in Law at the University of Pennsylvania Law School and defense counsel in the 9/11 terrorism cases against inmates in the Guantánamo Bay prison camp. She said, “John Yoo’s so-called reasoning has always been based on ‘What can the president get away with?’ rather than ‘What is the purpose and letter of the law?’ That is not legal reasoning, it’s inherently tyrannical and anti-democratic.”

In the New Republic, Matt Ford has a more extensive analysis. He says Yoo has “a disfigured reading” of the DACA case. In Ford’s opinion, “The Supreme Court did not explicitly rule that DACA itself was legal or illegal last month, only that Trump’s efforts to reverse it violated the Administrative Procedure Act, a federal law that sets out how executive agencies write new rules and regulations. Roberts, writing for the court, concluded that the Department of Homeland Security ran afoul of the APA by not providing enough justification for its sweeping move. ‘We do not decide whether DACA or its rescission are sound policies. The wisdom of those decisions is none of our concern,’ the Chief Justice wrote. ‘We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.’”

In addition, Matt Ford asserts, “Yoo’s Trumpian turn is far from surprising. In both government service and academic life, he has advanced an untrammeled vision of executive power that brushes aside most constraints imposed upon presidents by Congress or international law. His highest-profile work came during George W. Bush’s first term in office, when he worked in the Justice Department’s Office of Legal Counsel, which provides legal advice to other parts of the executive branch. In that role, Yoo helped draft a series of memos that effectively authorized torture of terrorism suspects and justified warrantless surveillance of Americans, arguing that the president’s wartime powers trumped almost all other constraints.”

Those memos by Yoo and Jay Bybee, says Ford, were castigated in 2009 as “professional misconduct” by the Justice Department’s Office of Professional Responsibility, which conclusion was rejected the next year by a senior official at the Department with this comment: “While I have declined to adopt OPR’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client.”

Matt Ford also notes that Yoo’s new book, Defender in Chief, is about to be published. According to its publisher, “Far from considering Trump an inherent threat to our nation’s founding principles, Yoo convincingly argues that Washington, Jefferson, Madison and Hamilton would have seen Trump as returning to their vision of presidential power, even at his most controversial. It is instead liberal opponents who would overthrow existing constitutional understanding in order to unseat Trump, but in getting their man would inflict permanent damage on the office of the presidency, the most important office in our constitutional system and the world.”[6]

Finally Matt Ford sees President Trump’s July 21^st executive order excluding undocumented immigrants from the executive branch’s report to Congress on this year’s census as a sign “that the White House is embracing Yoo’s mutilated logic.” This executive order, says Ford, contradicts the Constitution’s providing that members of the House of Representatives “are allotted according to ‘the whole number of persons in each State, excluding Indians not taxed.’ Since Congress automatically granted citizenship to all Native Americans by 1924, the ‘whole number of persons’ now truly means the whole number.” This conclusion was unanimously affirmed by the U.S. Supreme Court four years ago, but was ignored by this executive order and by President Trump’s July 21^st statement that excluding undocumented immigrants from the report to Congress “reflects a better understanding of the Constitution and is consistent with the principles of our representative democracy.”[7]

It also should be noted that these latest moves by Yoo contradict what he said in February 2017, one month after Trump’s inauguration. Then Yoo had “grave concerns about Mr. Trump’s uses of presidential power” and was troubled by “little sign that he understood the constitutional roles of the three branches.” Unless he changed, Yoo said, “our new president will spend his days overreacting to the latest events, dissipating his political capital and haphazardly wasting the executive’s powers.”[8]

Conclusion

As an opponent of the re-election of Donald Trump, I believe he knows he is far behind Biden in nearly all the polls and needs to change his campaign message. I, therefore, believe that he will do what he mentioned in the Fox News interview and will argue that he is doing many things to meet the problems and challenges facing the U.S.

Be on guard, citizens and the Biden campaign!

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[1] Fox News, Transcript: ‘Fox News Sunday’ interview with President Trump (pp. 17-18), foxnews.com (July 19, 2020); Borger, Trump consults Bush torture lawyer on how to skirt law and rule by decree, Guardian (July 20, 2020); Marcus, Trump wants to be king. Did John Yoo just hand him the crown?, Wash. Post (July 21, 2020).

[2] Department of Homeland Security v. Regents of the University of California, No. 18-587 (U.S. Sup. Ct. June 18, 2020.

[3] Yoo, How the Supreme Court’s DACA Decision Harms the Constitution, the Presidency, Congress, and the Country, National Review (June 22, 2020); Yoo, How Trump Can Weaponize the DACA Decision and Cut Taxes, Newsweek (June 24, 2020): Treene & Kight, Scoop: Trump’s license to skirt the law, Axios (July 19, 2020); Borger, supra; Marcus, supra. Ford, John Yoo’s Twisted Path to Trumpism, New Republic (the Soapbox) (July 22, 2020). https://newrepublic.com/article/158589/john-yoo-twisted-path-trumpism

[4] Treene & Kight, supra; Borger, supra; Marcus, supra.

[5] Borger, supra; Marcus, supra; Ford, supra.

[6] Macmillan, Defender in Chief: Donald Trump’s Fight for Presidential Power (2020).

[7] White House, Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census (July 21, 2020); White House, Statement from the President Regarding Apportionment (July 21, 2020); White House, President Donald J. Trump Is Taking Action to Ensure American Citizens Receive Proper Representation in Congress (July 21, 2020); Rogers & Baker, Trump Seeks to Stop Counting Unauthorized Immigrants in Drawing House Districts, N.Y. Times (July 21, 2020).

[8] Yoo, Executive Power Run Amok, N.Y. Times (Feb. 8, 2017).

The U.S. Constitution’s Interstate Commerce Clause After the Supreme Court’s Decision on the Affordable Care Act

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.

All of these opinions are available online.

1. Chief Justice Roberts’ Opinion.

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.

U.S. Supreme Court Hears Case That May Decide If Corporations Are Liable Under the Alien Tort Statute

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 the two 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.

Conclusion

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.

U.S. Supreme Court Hints That It Will Decide That Corporations Are Not Liable Under the Torture Victims Protection Act

On February 28th the U.S. Supreme Court heard arguments in Mohamad v. Palestinian Authority (Sup. Ct. No. 11-88) on the issue of whether corporations are liable under the Torture Victims Protection Act (TVPA). The transcript of that hearing is available online.

Before that hearing, a prior post discussed this case and expressed my opinion that the Court would decide that corporations were not so liable. In summary, the TVPA provides a civil cause of action for money damages by an “individual” who is a victim of torture or by his or her representative for extrajudicial killing against the “individual” who committed the wrong, and the ordinary meaning of the word “individual” as used in federal statutes encompasses only natural persons and not corporations or other organizations.

Although one needs to be cautious in evaluating oral arguments before the Supreme Court, the argument on February 28th in this case did not provide any reason to change my opinion on the likely outcome. Indeed, my review of the transcript of the argument confirms my previously expressed view of this case. To illustrate, I make the following four points.

First, Chief Justice John G. Roberts Jr. summarized what he thought was the plaintiffs position: “You are saying, ‘Well, we want a term that is going to include individual persons and organizations but not state organizations. And the only term that fits perfectly is ‘individual.’ ”

“Exactly,” the plaintiffs lawyer responded. “That’s our argument.”

Chief Justice Roberts was incredulous. “Really?” he asked, to laughter in the courtroom, which the Chief Justice joined.

Second, Justice Samuel Alito had a humorous exchange with the U.S. Justice Department lawyer who argued that corporations could not be liable under the TVPA, but earlier that same morning in another case (Kiobel) argued that corporations could be liable under the Alien Tort Statute. Justice Alito observed that the government’s position meant an alien could recover while a U.S. citizen could not. “Too bad, then, that Mr. Rahim [the plaintiff in Mohamad] became a U.S. citizen,” Justice Alito said. “I guess that was a mistake [on his part].”

Third, even Justice Steven Breyer, who is seen as more sympathetic to plaintiffs’ arguments, told the plaintiffs lawyer, “I think I have to say that you are on a weak wicket.”

Four, three other liberal Justices (Justices Ginsburg, Sotomayor and Kagan) also asked questions indicating skepticism of the plaintiffs’ arguments.

A Supreme Court decision in this case is expected by the end of June. I also reiterate that this is a case of statutory interpretation, 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.