Author Archive for
Curtis Bradley

Bradley Book Symposium: Response to the Commentary on International Law in the U.S. Legal System

by Curtis Bradley

[Curtis Bradley is the William Van Alstyne Professor of Law at Duke Law School.]

I want to give my sincere thanks to the eight contributors who commented on my book this week as part of the Opinio Juris online symposium:  David Moore, Jean Galbraith, Julian Ku, Kristina Daugirdas, Bill Dodge, Mark Weisburd, Mike Ramsey, and Ingrid Wuerth.  Each of these contributors offered valuable feedback on aspects of the book, and I am extremely grateful for their insightful observations.

The book covers a wide range of topics concerning the role of international law in the U.S. legal system, including the domestic status of treaties and customary international law, the validity of executive agreements, delegations of authority to international institutions, Alien Tort Statute litigation, sovereign and official immunity, criminal law enforcement, and the U.S. conduct of war.  At one time or another, I have written law review articles relating to most of these topics.  As the contributors to the symposium observed, however, the book is not an effort to re-argue positions that I have advanced in scholarship over the years.  Instead, I have attempted in the book to guide readers through the competing arguments in the relevant debates, while providing a general sense of how the law has evolved and where it stands at the present time.

The book emphasizes considerations of constitutional structure, something that is now fairly common in scholarship relating to international law in the U.S. legal system but was less common when I began teaching and writing in the mid-1990s.  Another theme of the book is that when international law operates in the U.S. legal system, its role is often mediated by domestic laws and institutions.  This does not mean that international law is unimportant in the U.S. legal system, and in fact the book is filled with examples of the significant roles that international law can and does play.  But it does mean that the international law that is applied in the U.S. legal system has a distinctively American gloss.  The book further highlights how the U.S. legal system not only receives international law but also frequently contributes to it, on issues such as treaty reservations and sovereign immunity.

The symposium contributors have addressed a number of specific propositions in the book.  Here are some brief comments on each of their posts:


Kiobel Roundtable: The Alien Tort Statute, Kiobel, and Extraterritoriality

by Curtis Bradley

[Curtis Bradley is the William Van Alstyne Professor of Law at Duke University.]

The Alien Tort Statute (ATS) is one-sentence long, was enacted more than 200 years ago, has essentially no drafting history, and was relatively unknown before the Second Circuit’s seminal Filartiga decision in 1980.  As a result, although it is obvious that the ATS was meant to provide the federal courts with jurisdiction over certain suits brought by aliens concerning torts in violation of international law, it is difficult to discern precisely what sort of suits Congress had in mind.  Determining how such a statute should apply to modern conditions, in the light of fundamental changes in international law and in the nature of U.S. common law since the statute’s enactment, is even more challenging, to say the least.

We do know that the ATS was enacted at a time when the authority of nations to regulate conduct was thought to be highly territorial, especially with respect to the conduct of foreign citizens.  We also know that the most prominent mention of the ATS in the early years after it was enacted—in Attorney General Bradford’s 1795 opinion concerning the involvement of U.S. citizens in an attack on the British colony in Sierra Leone—involved a situation in which the United States was alleged to have international responsibility for the torts (as I discussed here).  In addition, we know that the United States would not then—and still does not—have international responsibility for torts committed by foreign citizens (or corporations) on foreign soil.  These and related considerations have led a number of scholars to conclude that the ATS was not designed for a case like Kiobel, where the United States has no responsibility for the alleged tort, and where applying the statute raises extraterritoriality concerns.

Supporters of broad ATS litigation have responded that this line of argumentation is “purposive” and improperly neglects the ATS’s plain language.  One problem with this critique is that the plain language of the ATS provides no support for any federal cause of action, let alone an extraterritorial one.  As a result, supporters of broad ATS litigation do not, in fact, rely simply on the text of the ATS.  They argue, as did the majority of the Supreme Court in Sosa v. Alvarez-Machain, that the ATS was implicitly designed to allow certain tort claims to be brought without a separate statutory cause of action, and they cite various historical materials and events in support of this hypothesis.  To address the requirement in modern doctrine of a positive law source for the cause of action, they also contend, as did the Court in Sosa, that the ATS should be construed as authorizing federal common law claims for certain torts that violate international law.  The Court in Sosa explained that it was adopting this construction in order to give effect to the “ambient law of the era” in which the ATS was enacted.  Whatever one may think about this approach to statutory construction, it is not based solely on plain language.

In any event, there is nothing improperly purposivist about applying a limiting presumption such as the presumption against extraterritoriality (which was applied in Morrison v. National Australia Bank (2010)), or the softer presumption against extraterritorial applications that would involve an “unreasonable interference with the sovereign authority of other nations” (applied in F. Hoffman-La Roche v. Empagran (2004)).  Among other things, such a presumption can prompt Congress to provide additional policy guidance.  The ATS would seem to be a prime candidate for such prompting.  After all, Congress’s intent in the ATS is obscure, and, as noted, the text does not even mention causes of action, let alone define their proper scope.  Moreover, extraterritorial application of this statute, by focusing on alleged tortious conduct by foreign governments and their supporters abroad, has a high potential for creating foreign relations friction. A number of the briefs filed in Kiobel emphasize this concern, including the latest brief filed by the Executive Branch, a brief filed by the United Kingdom and The Netherlands, and a brief filed by former State Department Legal Advisers.

It has been argued that an extraterritorial limiting presumption should not apply to the ATS because…

Foreign Officials Immunity: A Response to Wuerth

by Curtis Bradley

I am very pleased to be able to comment on Ingrid Wuerth’s recent article, Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department.  As readers of this blog are aware, the Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) generally does not apply to suits against individual foreign officials, and that the immunity of such officials is to be determined instead as a matter of common law.

The Executive Branch is now claiming (as it claimed before Samantar) that, when it chooses to do so, it should be able to determine for the courts whether to grant or deny individual immunity in a particular case.  This is true, the Executive argues, for both status-based immunity, which protects certain government officials (such as heads of state) from essentially any claims in foreign courts while the officials are in office, as well as for conduct immunity, which protects current and former government officials from claims in foreign courts relating to their official acts while in office.

Ingrid presents a strong critique of the Executive Branch’s position, based on constitutional text and structure, history, and functional considerations.  I agree with much of what she has to say, and the federal common law framework for individual immunity issues that she suggests (which would take account of statutory policies, international law, and appropriate deference to the Executive Branch, see pp. 967-75) overlaps with the considerations that Larry Helfer and I recently outlined in International Law and the U.S. Common Law of Foreign Official Immunity.  I will nevertheless highlight several ways in which I think the Executive Branch might be able to push back against Ingrid’s analysis.

First, Ingrid spends a lot of time contesting the claim that Congress has affirmatively “authorized” Executive Branch determinations of individual immunity (pp. 939-51), but I do not think the Executive needs to make that claim.  Instead, decisions like Dames & Moore v. Regan and Ex parte Quirin suggest that it is probably sufficient for the Executive to argue that Congress was aware of its judicially-recognized authority to determine individual immunity when it enacted the FSIA and did nothing to displace that authority.  Unfortunately for Ingrid’s position, the Supreme Court in Samantar provided some support for this sort of congressional acquiescence argument.  In explaining its conclusion that the FSIA did not apply to suits against individual officials, the Court referred to the Executive Branch’s pre-1976 control over individual immunity determinations and suggested that this control survived the enactment of the FSIA:  “We have been given no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department’s role in determinations regarding individual official immunity.”  (To her credit, Ingrid acknowledges this statement, but she focuses on whether it supports a claim of congressional authorization and does not specifically consider its significance for a softer claim of congressional acquiescence.)

Second, Ingrid’s functional critique of Executive control over immunity determinations may be somewhat less persuasive than her formal critique.  She notes that the pre-FSIA regime, in which the State Department’s views about foreign governmental immunity were treated by courts as controlling, “proved problematic and was abandoned” (p. 924).  While that is true, the lesson from that experience was that the area should be regulated by Congress, not that courts should develop the law on their own.  The question that Ingrid’s article addresses, however, is what to do in the absence of congressional regulation.  The pre-FSIA history does not necessarily show that the answer is to have judicial rather than Executive Branch lawmaking.  Although the Executive Branch may not compare favorably to Congress as a lawmaker on issues of individual immunity, it has certain advantages over the courts, including both better access to information (including information about reciprocity by other countries) and democratic accountability.  Perhaps because of those considerations, the courts became less comfortable with independent judicial lawmaking on issues of immunity after Erie v. Tompkins, which made the source-of-authority question more salient, and it is not self-apparent why the courts should be more comfortable with such a lawmaking role today.

Finally, Ingrid acknowledges that, even if the Executive does not have the authority to control immunity determinations, it may be entitled to some deference in these cases (pp. 970-73).  Among other things, foreign official immunity implicates difficult and developing issues of customary international law (as Helfer and I discuss in our article), and the Executive’s views about what position the United States should take on these issues are likely to be given significant weight by the courts.  There are also a variety of other issues potentially relevant to the common law of immunity, such as the weight that should be given to interventions by the foreign government, and the Executive’s lead role in conducting U.S. foreign policy may suggest the desirability of giving it deference on these issues as well.  If so, it is not clear how much of a difference there will be between a regime of Executive Branch control, which Ingrid contests, and a regime of Executive Branch deference, which she does not necessarily contest.

The remand proceedings in Samantar provide an illustration.  The district court there initially appeared to give absolute deference to the Executive Branch’s position that immunity should not be conferred on the former Somali official, as Ingrid notes (p.918).  In a subsequent hearing on a motion for reconsideration, however, the judge made clear that she was not in fact treating the Executive Branch’s position as dispositive but rather was simply giving it deference.  The result was nevertheless the same.

Despite these points, I want to emphasize that Ingrid has written an excellent and timely article that will serve as an important counterpoint to the Executive Branch’s position.

Samantar Insta-Symposium: Samantar and Foreign Official Immunity

by Curtis Bradley

[We are pleased to share comments on the U.S. Supreme Court’s decision yesterday in Samantar v. Yousuf from Professor Curtis Bradley, who has written a great deal on the issue considered by the Court yesterday.  We hope to share comments from other informed observers on the decision over the next couple of days ].

As I bask in the glow of not having a single Justice in Samantar accept the theory of the FSIA that Jack Goldsmith and I had proposed, the following thoughts occur to me:

1. The decision strikes me as a perfectly reasonable construction of the FSIA’s text. I’ve always liked and admired Justice Stevens, but I’ve also thought that he had a tendency sometimes to gravitate towards the eccentric. This decision, however, is very lawyerly and does a nice job of addressing most of the counter-arguments. It is easy to imagine that Stevens’ opinion might have persuaded some Justices who were leaning the other way, especially Justices committed to textualism.

2. Supporters of broad executive power should be pleased with the decision. The Court describes with approval the pre-FSIA practice whereby an executive suggestion of immunity would cause courts to “surrender their jurisdiction,” and it appears to view that executive authority as part of the “common law” regime that it says has been preserved for suits against foreign officials despite the enactment of the FSIA. The Court says, for example, that “[w]e have been given no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department’s role in determinations regarding individual official immunity.”

3. Those who would describe this decision as a big victory for international human rights litigation are getting ahead of themselves. For a long time, the Filartiga line of cases simply ignored the issue of individual official immunity. That had started to change with some recent lower court cases (e.g., cases brought against Israeli officials), and now the issue will be front and center. The Court in Samantar emphasizes the “narrowness” of its holding and makes clear that it is deciding only the issue of the FSIA’s applicability. It also says that it “does not doubt that in some circumstances the immunity of the foreign state extends to an individual for acts taken in his official capacity,” and it repeatedly suggests that the common law may offer immunity to individual officials. As noted above, the Court also seems to indicate that the executive branch can issue binding suggestions of immunity in suits against foreign officials. Finally, it says (somewhat surprisingly given its textual analysis of the FSIA), that “it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is the real party in interest.”

4. The Court, like the executive branch in its amicus brief, says remarkably little about international law. Contrast that with the British House of Lords’ 2006 decision in Jones, where the court was faced with a similar statutory construction issue and focused extensively on the international law backdrop (and concluded that the Filartiga line of cases was in violation of the customary international law of immunity). Contrast it as well with Justice Stevens’ own opinion in Hamdan v. Rumsfeld, which relied heavily on international law in construing the Uniform Code of Military Justice.

5. Regardless of your views of the impact of the decision on executive power, human rights litigation, or international law, the decision is good for lawyers and law professors. With its undefined references to common law immunity, and its lack of clarification regarding the role of international law, the Court has invited years of litigation and law review articles. Amusingly, one of the reasons the Court cites for declining to construe the FSIA to cover foreign official immunity is that the courts that have adopted this construction “have had to develop, in the complete absence of any statutory text, rules governing when an official is entitled to immunity under the FSIA.” But now that is still going to happen, albeit this time with even less effort by courts to connect their decisions to the policy choices that Congress has made. For discussion of one of the many areas of likely debate in the coming years, see here.

Medellin: Questions for Students

by Curtis Bradley

Medellin and Congress

by Curtis Bradley

There is a way in which the Medellin decision fits very nicely with our discussion last week about congressional-executive agreements. Like Oona’s article, the decision in Medellin is very pro-Congress. The Court’s finding of non-self-execution means that it is reserving to Congress the determinations of whether and how to comply with the ICJ decision. Similarly, the Court’s presidential power holding means that the President must work with Congress if he or she wishes to convert non-self-executing international law into U.S. law. Finally, the Court’s reliance on Justice Jackson’s framework from Youngstown, particularly category 3 of that framework, envisions a significant role for Congress, even in foreign affairs. All of this is to be applauded, in my view.

Missouri v. Holland and Treaties’ End

by Curtis Bradley

Even if historical practice does not provide a legitimate basis for restricting the scope of the congressional-executive agreement power, federalism might. Under Missouri v. Holland, neither Article II treaties nor the statutes that implement them are subject to the enumerated power limitations that apply to Congress. While these limitations are relatively modest, especially with respect to activities involving the production of goods (as illustrated by the medical marijuana case, Gonzales v. Raich), they have been enforced in some prominent modern cases, including in United States v. Lopez (disallowing federal regulation of possession of handguns near schools), Boerne v. Flores (disallowing federal regulation of local zoning), and United States v. Morrison (disallowing federal regulation of intrastate violence against women).

One of the strongest arguments for the holding in Missouri v. Holland is that the supermajority senatorial consent process specified in Article II provides enough political process protection for federalism, such that judicial enforcement of federalism is not needed in this context. Defenders of Holland also point to the practice of the Senate in either blocking some treaties thought to be particularly intrusive on federalism, or in attaching federalism-protective reservations, understandings, and declarations to its consent to treaties, as proof that the senatorial consent process does in fact protect state interests. This political process line of argumentation is unavailable, however, for congressional-executive agreements, which follow the same domestic process as is used for statutes. A number of supporters of congressional-executive agreements have therefore concluded that they do not receive the benefit of Missouri v. Holland, and this is also Oona’s conclusion.

Because of this, Oona pulls back from calling for treaties’ end, and only calls for their partial end. She states that, “[i]n contrast with Article II treaties, congressional-executive agreements cannot exceed the bounds placed by the Constitution on congressional authority” and that therefore “[w]ere there an international agreement that required the federal government to exercise powers beyond those granted to Congress, it could (and should) be ratified through the Treaty Clause just as it would be today.” This is a perfectly reasonable concession, but it seems to me that Oona probably underestimates the extent to which this issue will arise, especially in the area of human rights law. To take just one example, is it really clear that Congress could simply enact all of the local family law provisions in the Convention on the Rights of the Child?

Oona also appears to assume that we will know in advance which treaties will exceed Congress’s authority, and that we can channel those (allegedly very rare) treaties into the Article II process and the rest into the congressional-executive agreement process. The bounds of Congress’s Article I authority, however, are notoriously unclear, and much will depend on how particular treaty provisions are interpreted and applied. As a result, her concession might actually provide support for a categorical approach to the issue whereby certain types of agreements likely to raise federalism issues (e.g., human rights agreements) are presumptively channeled to the Senate to foster constitutional avoidance. (Incidentally, I agree with other posts that have expressed the view that this channeling is going to continue anyway since we now have a political equilibrium for human rights agreements that is unlikely to be disturbed by academic grumbling about the irrationality of our constitutional practice.)

It seems to me that a more fundamental objection to Oona’s federalism concession, however, is that there is tension between her democracy-oriented defense of congressional-executive agreements and her support of Missouri v. Holland. She rightly observes that it is more democratic to have a majority of both houses of Congress decide on our international commitments than to give this authority solely to a supermajority of the Senate. Yet, if we should be concerned about democracy with respect to the making of international commitments, shouldn’t we be at least as concerned about democracy with respect to the making of domestic law? Nevertheless, Oona is perfectly comfortable giving a supermajority of the Senate more domestic legislative power than a majority of two houses of Congress, pursuant to Holland. (A non-self-executing treaty will require that the House of Representatives take part in domestic implementation, but Oona does not appear to condition her support of Holland on non-self-execution. In any event, even when the treaty is non-self-executing, the House may feel constrained to enact implementing legislation to avoid a breach of the agreement.) As multilateral treatymaking becomes increasingly pervasive and increasingly overlaps with domestic regulation, this democracy issue will only continue to grow. If we are to have treaties’ end, it may also be time for Holland’s end.