Charming Betsy in the Ninth Circuit

by Kenneth Anderson

I am simply raiding Eugene Volokh’s edited clip from this new holding in the Ninth Circuit, including a discussion of the Charming Betsy canon (see the last couple of paragraphs, below the fold).  From Serra v. Lapin (9th Cir. Apr. 9, 2010) (Clifton, J., joined by Kozinski, C.J., and Wallace, J.) (some paragraph breaks added by Eugene):

Current and former federal prisoners allege that the low wages they were paid for work performed in prison violated their rights under the Fifth Amendment and various sources of international law…. Plaintiffs earned between $19.00 and $145.00 per month at rates as low as nineteen cents per hour. Plaintiffs contend that by paying them such low wages, Defendants … violated Plaintiffs’ rights under the Fifth Amendment to the United States Constitution; articles 7 through 9 of the International Covenant on Civil and Political Rights (“ICCPR”); a U.N. document entitled “Standard Minimum Rules for the Treatment of Prisoners;” and the law of nations.

Plaintiffs allege that Defendants violated their due process rights under the Fifth Amendment by denying them fair wages. This claim fails because prisoners do not have a legal entitlement to payment for their work, and the Due Process Clause protects only against deprivation of existing interests in life, liberty, or property….

Plaintiffs fail to state a viable claim under the International Covenant on Civil and Political Rights. “For any treaty to be susceptible to judicial enforcement it must both confer individual rights and be self-executing.” A treaty is self-executing when it is automatically enforceable in domestic courts without implementing legislation. The ICCPR fails to satisfy either requirement because it was ratified “on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts.”

The Standard Minimum Rules for the Treatment of Prisoners similarly fail as a source of justiciable rights. This document was adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1955 “to set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions.” It is not a treaty, and it is not binding on the United States. Even if it were a self-executing treaty, the document does not purport to serve as a source of private rights. The “Rules” themselves acknowledge that they are not all “capable of application in all places and at all times,” and are “not intended to preclude experiment.”. Moreover, the specific rule identified by Plaintiffs as a source of rights declares only that “[t]here shall be a system of equitable remuneration of the work of prisoners” without specifying what wages would qualify.

Finally, Plaintiffs assert that “the customs and usages” of the nations of the world, as revealed in these and other sources, form customary international law entitling them to higher wages. This claim fails because customary international law is not a source of judicially enforceable private rights in the absence of a statute conferring jurisdiction over such claims. See Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174 n. 1 (D.C.Cir.1994) (“While it is true that ‘international law is part of our law,’ it is also our law that a federal court is not competent to hear a claim arising under international law absent a statute granting such jurisdiction.” (citation omitted)); see also Sosa, 542 U.S. at 720 (“ ‘[O]ffences against this law of nations are principally incident to whole states or nations,’ and not individuals seeking relief in court.” (quoting Blackstone, 4 Commentaries 68) (alteration omitted)). Plaintiffs can point to no statute that brings their claim within our purview.

The Alien Tort Statute (“ATS”) is the only possible vehicle for a claim like Plaintiffs’ because no other statute recognizes a general cause of action under the law of nations. The ATS grants to the district courts “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.” We need not decide whether Plaintiffs’ proposed minimum wage for prison labor “rest[s] on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of [Blackstone’s] 18th-century paradigms,” because Plaintiffs have conceded that they are not aliens. The scope of the ATS is limited to suits “by an alien.” …

We have allowed ourselves a few sidelong glances at the law of nations in non-ATS cases by applying the canon of statutory construction that “[w]here fairly possible, a United States statute is to be construed as not to conflict with international law or with an international agreement with the U.S.” The canon is derived from Chief Justice Marshall’s statement that

an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations as understood in this country.

The Charming Betsy canon is not an inviolable rule of general application, but a principle of interpretation that bears on a limited range of cases. Mindful that “Congress has the power to legislate beyond the limits posed by international law,” we do not review federal law for adherence to the law of nations with the same rigor that we apply when we must review statutes for adherence to the Constitution. We invoke the Charming Betsy canon only where conformity with the law of nations is relevant to considerations of international comity, and only “where it is possible to do so without distorting the statute.” We decline to determine whether Plaintiffs’ rates of pay were in violation of the law of nations because this case meets neither condition for applying the canon.

First, the purpose of the Charming Betsy canon is to avoid the negative “foreign policy implications” of violating the law of nations, and Plaintiffs have offered no reason to believe that their low wages are likely to “embroil[ ] the nation in a foreign policy dispute.” That the courts should ever invoke the Charming Betsy canon in favor of United States citizens is doubtful, because a violation of the law of nations as against a United States citizen is unlikely to bring about the international discord that the canon guards against. In The Charming Betsy, the status of the ship’s owner as a Danish subject, and thus a neutral in the conflict between the United States and France, was critical to the Court’s conclusion that the Non-Intercourse Act of 1800 should not be interpreted to permit the seizure and sale of his ship.

We have never employed the Charming Betsy canon in a case involving exclusively domestic parties and domestic acts, nor has the Supreme Court. As a general rule, domestic parties must rely on domestic law when they sue each other over domestic injuries in federal court. We need not consider whether the statutory and regulatory regime of federal inmate compensation conflicts with the law of nations because Plaintiffs, as United States citizens and residents, have not demonstrated that their low wages have any possible ramifications for this country’s foreign affairs.

Second, “[t]he Charming Betsy canon comes into play only where Congress’s intent is ambiguous,” and there is nothing ambiguous about the complete discretion that Congress vested in the Attorney General with regard to inmate pay. Congress is not constrained by international law as it is by the Constitution. See United States v. Aguilar, 883 F.2d 662, 679 (9th Cir.1989) (“In enacting statutes, Congress is not bound by international law; if it chooses to do so, it may legislate contrary to the limits posed by international law.” (alterations and quotation marks omitted)). As a result, “we are bound by a properly enacted statute, provided it be constitutional, even if that statute violates international law.” Because the statutes giving the Attorney General discretion over prisoner pay grades are unambiguous, there is no reason for this court to decide whether they accord with the law of nations….

http://opiniojuris.org/2010/04/19/charming-betsy-in-the-ninth-circuit/

5 Responses

  1. Thanks for this Ken.  This is a substantially accurate statement of the law, in my opinion.  I do believe that even in a case between domestic parties arising under domestic law,  a relevant, self-executing treaty might still require application of the Charming Betsy.

  2. I am among those who read the Charming Betsy cases as a canon of statutory interpretation grounded in separation of powers.  See here.  Under this reading, the Charming Betsy doctrine is a rule premised on the avoidance of structural discord through avoidance of international discord.  The purpose of the doctrine is to interpret ambiguous statutes to avoid foreign relations difficulties for the United States through a judicial presumption that Congress does not wish to foment international discord in the passage of ambiguous statutes that might be construed to authorize or require violations of international obligations. 

    Thus, I think the focus should not be on whether the parties to the dispute are domestic or foreign parties, but whether an interpretation of an ambiguous statute would result in a violation of international obligations and thereby create problems for the Executive Branch in conducting foreign affairs. 

    I do disagree with the Ninth Circuit’s analysis of the use of ambiguity in applying Charming Betsy.  Vesting complete discretion in the Executive Branch is not the same thing as finding that the statute is ambiguous.  The facts of Charming Betsy itself make it clear that the doctrine sometimes curtails executive freedom by presuming that Congress has not inadvertently authorized the Executive to perform functions that would violate international law.  A Charming Betsy gloss on Youngstown’s first prong would mean that congressional statutes will rarely implicitly authorize executive violations of international law. 

    Roger Alford

  3. Roger,

    Point taken, but I think your approach may be overly focused on foreign affairs consequences and not enough on the status of international law as the applicable rule of decision – at least in some contexts.  I’ll need to get back to you when I finish the draft of my main current project.  I do fully agree with your last two sentences.

    Best to all….

  4. I also take issue with the court’s statement that Charming Betsy canon cannot be employed in a case “involving exclusively domestic parties and domestic acts.”  This would mean that Charming Betsy cannot be employed with respect to international human rights norms whether they flow from an international agreement or customary international law if they case involves domestic parties and domestic acts.  But, of course, a central point of human rights law is to limit a government’s treatment of its own citizens on its own soil.  And, such treatment can indeed raise foreign policy concerns. 

    The Restatement elaboration of the Charming Betsy rule is that “where fairly possible” courts ought to construe acts of Congress consistent with our international obligations.  The original Charming Betsy formulation is even somewhat stronger: “…an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains…”  Additionally, the weight of Charming Betsy ought to be even greater where Congress has specifically enacted the statute in question in order to implement an international obligation (flowing from a non-self-executing international agreement or customary international law).  One might refer to this as Charming Betsy on steroids.  Thus, take for example, a Congressional statute enacted in order to implement a non-self-executing obligation in a human rights agreement being interpreted in a case involving domestic parties and domestic acts.  The court’s opinion would have us believe that rather than Charming Betsy on steroids, there would be no grounds to apply Charming Betsy at all.

  5. Response…
    There is also a failure to understand that the Dec. of the U.S. re: the ICCPR is void ab initio as a matter of law (e.g., HR Comm. Gen. Comm. No. 24) and that, in any event, there was no reservation or declaration with respect to Article 50, which requires that “[t]he provisions of the present Covenant [that's all of 'em] shall extend to all parts of federal States without any limitations or exceptions.”  The Executive Explanation re: Art. 50 assured that the ICCPR shall be implemented within the U.S.  See Paust, International Law as Law of the United States 362 (2 ed. 2003); Paust, Van Dyke, Malone, International Law and Litigation in the U.S. 86-88 (3 ed. 2009) (West Pub.).
    JJ Paust

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