UPDATE On Kiobel v. Royal Dutch Petroleum. And How It Could Impact ‘Court-Stripping’ Jurisprudence.*
Last Wednesday, the day after oral argument at the Supreme Court in a case called Kiobel v. Royal Dutch Petroleum, both Linda and I posted about the case. Linda’s post I believe was written shortly before the argument although posted afterward. Mine was written after the argument and discussed news reports about what occurred. The title of Linda’s post was “The Supreme Court’s corporate monsters–if money buys them “free speech” rights, can it help them avoid giving others human rights?” The title of mine was “International Law, As Established At Nuremberg*: The ACTUAL Grounds On Which the Supreme Court Will Rule For Shell Oil’s Parent Company In Kiobel v. Royal Dutch Petroleum.” (I added the asterisk and the related footnote later that night, to make clear that the part of the title that preceded the colon was intended as a sarcastic reference to a statement made by the oil company’s counsel during oral argument, a statement I discussed in the post.)
To refresh your memory—it was barely more than a week ago, but in the intervening time, we’ve all been somewhat distracted by more important things, such as whether slightly-increased private healthcare premiums caused by the inclusion of contraceptives coverage really is public welfare paid by “taxpayers” and therefore women who receive the benefit are prostitutes—my post began by explaining the supposed issue in the case. I wrote:
In her post earlier today on Kiobel v. Royal Dutch Petroleum, the sort-of-Citizens–United-like case argued yesterday in the Supreme Court, Linda discusses the issue that was supposed to be the one that the Court would decide, because, well, that was the issue that the lower appellate court, the Second Circuit Court of Appeals, decided. The issue is whether under the Alien Tort Statute, which was enacted in 1789 and allows “aliens” to file civil lawsuits in the U.S. for violations of the “law of nations,” allows aliens to sue corporations, or instead only individuals, for violations of human rights as defined under clearly-established international law.
The Second Circuit court said it doesn’t, and, as the excerpt from that opinion that Linda posts shows, the appellate panel used as its justification the judges’ own moral judgment that since individuals (i.e., the corporation’s top executives) make the corporate decisions to leverage the corporation’s resources to accomplish these heinous acts, only those individuals, and not the ill-used corporation itself, should be suable. And that therefore, only those individuals, and not the ill-used corporation itself, will be suable in U. S. federal courts under the ATS.
This notwithstanding that the statute itself says nothing at all about who can be sued under it; it states only what acts the actor can be sued for. And notwithstanding that the Second Circuit panel’s stated grounds for the ruling, if not necessarily the result (the dismissal of the lawsuit), conflict with the Supreme Court’s ruling two years ago in Citizens United v. FEC. Which parlayed the First Amendment free-speech right of individuals into a right of corporate CEOs to leverage those rights of its individual human shareholders into a First Amendment speech right of the CEO to use corporate funds to advance his or her political preferences.
I noted that Anthony Kennedy, author of the Citizens United opinion, reportedly indicated that he agreed with the oil company’s statement in its brief that international law does not recognize corporate liability. Case closed, as far as he was concerned. But several of the justices disagreed—most emphatically Stephen Breyer and Elena Kagan, but Alito seemed to, too.
But I went on to say that I expected from what transpired that the Court wouldn’t decide that issue at all and would instead decide the case on entirely separate grounds asserted by Samuel Alito during the argument but not addressed earlier in the case. Alito questioned whether the statute applies as against anyone, corporation or individual, when, as in that case, the acts alleged occurred outside the United States, by someone or some entity not based in the United States, against people who have no connection to the United States. I predicted that a majority led by Alito would say it does not.
It now looks like I was right.
On Monday afternoon, the Court issued a surprise order in the case, asking that the parties brief the following issue:
Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.
The briefing won’t be completed until June 29, and so the Court will decide the case next term, not during the term that ends by July 1.
The defendant in Kiobel did not claim that the statute provides federal-court jurisdiction (the legal authority to hear the case) only for cases alleging violations of international law that occurred within the United States—probably because the words of the statute suggest otherwise, and because in a 2004 case filed under that statute, in which the acts at issue occurred outside the United States , the Supreme Court gave no indication that it does. But as SCOTUSblog’s Lyle Denniston noted, the defendant in another current ATS case does. That defendant lost in the appellate court, and filed a petition asking the Supreme Court to consider the issue in that case. The justices considered the petition last Friday and took no action on that petition. Instead, they inserted the issue into Kiobel, in an order described variously by commenters as surprising, unusual, and stunning.
The injection of this issue into Kiobel enables the justices to avoid ruling on whether the statute, enacted the same year that the Constitution was ratified, applies only to allow suits against individuals and not against violations corporations under whose auspices the human rights violations occurred.
The one-sentence statute says: “The 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 United States.” The law of nations does not allow corporations to have atrocities committed under their auspices, whatever yoga-like linguistics contortions Justice Kennedy’s mind or law clerks performed that caused him to suggest otherwise at the argument.
But neither do the statute’s words suggest that it does not apply to (as the Court put it in its briefing order) violations of the law of nations occurring within the territory of a sovereign other than the United States. If the statute adopts international law only to identify what torts—what actions—can be the subject of a suit in the country, and not to identify who (or what) can be sued, then it shouldn’t matter that (according to Kennedy at oral argument, quoting from a brief supporting the oil company) this country appears to be the only one in the world to “exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection.” But it will, although possibly circuitously.
“What business does a case like this have in the courts of the United States?” Alito asked. None, a majority of the Court is likely to say, and not because the defendant is a corporation but instead because the atrocities alleged occurred in Nigeria rather than in the United States. But since the statute itself doesn’t say that, the majority of justices will have to either interpret it as implying that it does or say that the statute must be interpreted in that matter in order to avoid striking it down as unconstitutional, because (they’ll say) Congress lacks the authority to give the federal courts jurisdiction to hear cases about wrongs committed outside the territorial United States.
Which would be a novel ruling, but one that, as Denniston points out, Alito seemed to suggest by asking: “Is there an Article III source of jurisdiction for a lawsuit like this?…What’s the constitutional basis for a lawsuit like this, where an alien is suing an alien?”
Article III is the section of the Constitution that created the judicial branch. It’s also the part of the Constitution that says that Congress, which Article I created, has the authority to grant the federal courts jurisdiction (legal authority) to hear certain types of cases.* In enacting the ATS, Congress granted the federal district courts the authority to hear “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.”
But there are other parts of the Constitution—the Bill of Rights; the Fourteenth Amendment (due process, equal protection of the law); the prohibition against suspension of the right to habeas corpus and against ex post facto laws and bills of attainder (protections included in the original Constitution)—that appear to require access to federal court in order to challenge, whether or not Congress provides for it.
There are other parts of the Constitution, such as Article II, which created the executive branch, that may limit Congress’s authority to create federal-court jurisdiction. This is what Alito appears to have in mind.*
And conversely, there are other parts of the Constitution—the Bill of Rights; the Fourteenth Amendment (due process, equal protection of the law); the prohibition against suspension of the right to habeas corpus and against ex post facto laws and bills of attainder (protections included in the original Constitution)—that appear to require access to federal court in order to challenge, whether or not Congress provides for it.
Or at least it would seem so. The political right is incessantly trying to remove federal-court jurisdiction to hear cases that they claim violate states’ rights to violate individuals’ rights—a tactic called “court-stripping.” And one that, with the aggressive assistance of the current Supreme Court, has been phenomenally successful in effectively suspending (read: eliminating) the right of federal-court habeas corpus review by persons convicted of crimes in state court. “Phenomenally” is no overstatement, either. It’s truly a phenomenon, and one that needs its own post.
Court-stripping and the reverse—I’ll call it court-mandating—are issues that the Supreme Court normally avoids like the plague, best as I can tell. But if nothing else good comes from Kiobel—and it certainly looks like nothing else will—a Supreme Court acknowledgment that there are constitutional limits to Congress’s authority to determine federal-court jurisdiction might be the consolation prize. But only if that limitation is viewed as a two-way street.
*This post originally referred to Article I (establishing Congress) as Article II, and referred to Article II (establishing the executive branch) as Article I. Ooops.