Constitutional Interpretation and Change

  • October 10, 2017
    Guest Post

    by Jeffrey S. Vogt, Legal Director, Solidarity Center

    Since the modern “rediscovery” of the Alien Tort Statute (ATS), starting with Filártiga v. Peña-Irala in 1980, corporations have been named as defendants in ATS cases. That corporations could be held liable under the ATS for jus cogens violations of customary international law had for years generated little controversy. In 1997, in Doe v. Unocal Corp, the first major ATS case against a corporation, the question as to whether corporations, as opposed to natural persons, could be held liable under ATS was not at issue. By 2008, the 11th Circuit Court of Appeals, in Romero v. Drummond Company, could quickly dispense with the issue holding that, “The text of the Alien Tort Statute provides no express exception for corporations[.]” This acceptance came to a halt when in 2010, the Second Circuit Court of Appeals, in Kiobel v. Royal Dutch Shell, held that corporations could not be held liable under the ATS because corporate liability was not sufficiently developed under customary international law (as opposed to US law). The US Supreme Court avoided addressing the issue when Kiobel was before it in 2013, instead finding a lack of jurisdiction over the Dutch, corporate defendant due to a presumption against extraterritoriality. Notably, not all courts followed Kiobel; the Seventh Circuit, in the 2011 case of Flomo v. Firestone National Rubber Company, kept the doors open to corporate ATS cases.  

  • October 5, 2017
    Guest Post
    Muslim Ban Airport

    by Cody Wofsy, Staff Attorney and Skadden Fellow, ACLU Immigrants' Rights Project

    *This piece was originally posted on ACLU's Speak Freely blog

    President Trump signed the third version of his Muslim ban executive order on Sept. 24, about two weeks before the case involving the second version of the ban was to be argued before the Supreme Court. This action led the court to cancel oral arguments on the earlier version so that the parties could address whether the new order renders the Trump administration’s appeal moot.

    In the meantime, the ACLU has returned to the federal district court to challenge the new order, which is set to go into effect on Oct. 18.

  • October 3, 2017
    Guest Post

    by Ashley Deeks, Professor of Law and Senior Fellow, Center for National Security Law, at the University of Virginia School of Law

    Last week, North Korea’s Foreign Minister claimed that President Trump had “declared a war” on his country.  He apparently reached that conclusion based on President Trump’s tweet stating that North Korea “won’t be around much longer” if the Foreign Minister’s U.N. speech accurately represented the thoughts of Kim Jong Un.  In response to this alleged U.S. declaration of war, the Foreign Minister threatened that North Korea would shoot down U.S. aircraft flying off the North Korean coast, even if the aircraft were in international airspace.

    Is North Korea correct that President Trump declared war?  And if so, what follows as a legal matter?

  • October 3, 2017
    Guest Post

    by William Yeomans, Lecturer in Law, Columbia Law School

    *William Yeomans served 24 years in the Civil Rights Division of the Department of Justice. He is currently the Ronald Goldfarb Fellow at the Alliance for Justice and Lecturer in Law at Columbia Law School.

    Interior Secretary Ryan Zinke last week stated in a speech to oil industry executives that among Interior Department employees he “got 30 percent of the crew that’s not loyal to the flag.” He elaborated that they were not loyal to President Trump or to him. Zinke’s comments convey an attitude toward government service that is grounded in ignorance of the role of career government servants.

    First, Zinke, as did Trump in dealing with former FBI Director James Comey, equated “loyalty” to the president with loyalty to “the flag,” presumably meaning the country. He suggested that patriotism in federal employment requires loyalty to the president. In reality, of course, every federal employee takes an oath to uphold the Constitution and does not swear fealty to the occupant of the Oval Office or his appointees. Federal employees serve their country by defending the Constitution and enforcing duly enacted law.

  • October 2, 2017
    Guest Post

    by John M. Eubanks, Member, Motley Rice LLC, Petitioners’ Counsel in Jesner v. Arab Bank

    Imagine a situation where an international bank with a presence in Manhattan holds accounts for known terrorists and serves as the end-payor to beneficiaries of a fund created for the explicit purpose of supporting an armed uprising typified by suicide bombings and indiscriminate killing of civilians carried out by known terrorist organizations with whom the bank’s accountholders are directly affiliated. Then, picture this international bank being immune from lawsuits filed by the victims of these suicide bombings and indiscriminate killings solely on the basis of its corporate form. This is precisely the issue with which the Supreme Court will grapple in Jesner v. Arab Bank, to be argued before the Court on October 11, 2017. 

    Jesner addresses the same question that was raised in Kiobel v. Royal Dutch Petroleum Co. during the October Term 2011. That question is whether the Alien Tort Statute (ATS),  creates a categorical bar to corporate liability for violations of the law of nations, or customary international law. The U.S. Court of Appeals for the Second Circuit – from which this appeal came – is the only federal court of appeals to determine that corporations are immune from the reach of the ATS, finding itself in conflict with the U.S. Courts of Appeals for the Seventh, Ninth, Eleventh, and District of Columbia Circuits. While the Supreme Court had the opportunity to decide this issue in Kiobel, the Court instead answered a distinct question of whether claims under the ATS are subject to the presumption against extraterritoriality – that is, laws do not cover conduct that takes part outside the territorial confines of the United States absent explicit language to that effect. The Supreme Court carved out a test for overcoming this presumption under the ATS – “where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.”