Justice Gorsuch is Right: Jesner and the Original Meaning of the Alien Tort Statute

On Oct. 11, the Supreme Court heard arguments in Jesner v. Arab Bank. Jesner involves whether the Alien Tort Statute (ATS) allows federal courts to exercise jurisdiction over claims by aliens against corporations. As originally enacted in Section 9 of the Judiciary Act of 1789, the ATS provided that “the district courts ... shall ... have cognizance ... of all causes where an alien sues for a tort only in violation of the law of nations.” Since 1980, lawyers have attempted to use the statute to litigate international human rights claims (often between aliens), generating several thorny issues, including the question of corporate liability.

During oral argument, Justice Gorsuch questioned whether, as originally understood, the ATS encompasses claims by aliens against foreign defendants. In posing this question, Justice Gorsuch referred to our work on the original meaning of the ATS. (That work includes The Alien Tort Statute and the Law of Nations, Two Myths About the Alien Tort Statute, and The Original Source of the Cause of Action in Federal Courts: The Example of the Alien Tort Statute.) These articles explain that the ATS, taken in its original historical and legal context, is best understood as giving federal courts jurisdiction only to hear claims by aliens against U.S. citizens for intentional acts of violence. This grant of jurisdiction satisfied an important, but largely forgotten, obligation of the United States under the law of nations at the time of the statute’s enactment. The law of nations required the United States (like all nations) to redress acts of violence by its own citizens against citizens of foreign nations (with whom the United States was at peace) by imposing criminal punishment, extraditing the offender, or providing a civil remedy. Failure to redress such violence in one of these ways gave the offended nation just cause to retaliate against the United States, including through war. Because of this obligation under the law of nations, acts of violence by a citizen of one nation against the citizen of another were referred to as violations of the law of nations. As discussed in our scholarship, the language of the ATS—“where an alien sues for a tort only in violation of the law of nations”—referred to just such violations. (This reading of the ATS is also consistent with Article III because it encompasses only suits that fall within foreign diversity jurisdiction.)

At oral argument, certain counsel and some justices resisted Justice Gorsuch’s reliance on Article III and the original meaning of the ATS. Afterwards, Bill Dodge argued on Just Security that Justice Gorsuch’s questions were misguided. The resistance to Justice Gorsuch’s questions, however, rests on several basic mistakes about the ATS.

The Marbois Incident and Cases Against Ambassadors

At oral argument, certain counsel for petitioners and for the United States argued against the need for a U.S. defendant in ATS cases by noting that the Marbois incident involved an altercation between a French citizen and the French Ambassador (pp. 16, 34-37). This observation rests on the false premise that the ATS was adopted to address episodes like the Marbois incident.

The 1784 Marbois incident generated concern that state courts were inadequate to enforce and redress violations of ambassadorial rights. Congress addressed this problem not in the ATS but in a different section of the Judiciary Act—Section 13—by giving the Supreme Court exclusive “jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, as a court of law can have or exercise consistently with the law of nations.” This provision enabled the Supreme Court to enforce the immunities of ambassadors, public ministers and their households under the law of nations. Section 13 also gave the Supreme Court “original, but not exclusive jurisdiction over all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party.” This provision authorized ambassadors to pursue redress for infringements of their rights directly in the Supreme Court. Thus, if events like the Marbois incident occurred after the Constitution was adopted, the Judiciary Act enabled the United States to bypass state courts and avoid responsibility for any violations through adjudication in the Supreme Court. To further deter and redress interference with ambassadorial rights, Congress made such interference a crime in the Crimes Act of 1790.

A different problem prompted the enactment of the ATS—the problem of U.S. citizens committing acts of violence against aliens (particularly British subjects seeking to collect their debts or reclaim their property). Torts of this kind (such as ear-cropping) violated the law of nations, and the only provision of the Judiciary Act that addressed this problem was the ATS. This context illuminates the original purpose of the ATS and why Congress used the language it did in Section 9.

Piracy

At oral argument, Justice Sotomayor noted that the defendant’s nationality would have been irrelevant in piracy cases (pp. 37-38)—cases that she presumed the ATS was designed to cover.

The ATS, however, was not enacted to cover piracy. Such cases were covered by different statutes and fell within heads of Article III jurisdiction inapplicable to ATS cases. Section 9 of the Judiciary Act gave lower federal courts original jurisdiction “of all civil causes of admiralty and maritime jurisdiction” (including prize cases). Among the prize courts’ most important functions was redressing abuses committed by privateers, such as erroneous or malicious capture of a neutral ship or neutral cargo. Doing so prevented the United States from being held responsible for the misconduct. Federal courts heard prizes cases in their admiralty and maritime jurisdiction, not in their ATS jurisdiction. Prize cases raised no Article III problem because they fell within the Constitution’s grant of admiralty and maritime jurisdiction (inapplicable to typical ATS cases).

In addition, the Crimes Act made piracy (a felony committed on the high seas) a crime within the jurisdiction of federal courts. Federal crimes fell within Article III’s jurisdiction over both cases brought by the United States and cases arising under federal statutes. Neither of these categories of Article III jurisdiction is limited by the nationality of the defendant. To say that claims of piracy did not require a U.S. defendant says nothing about whether an ATS claim unsupported by these heads of jurisdiction requires a U.S. defendant. The ATS was enacted to deal with a different problem: ordinary acts of violence by U.S. citizens against aliens wherever they occurred.

The Text of the ATS

Dodge argues that under our reading of the statute, “a violation of the law of nations would occur not at the time of the tort, but later, when the United States failed to provide redress.” This, he contends, “is hard to square with the text of the ATS, which refers to suits ‘by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.’ The word ‘committed’ suggests that the international law violation occurs at the time of the tort, rather than some time later.”

This argument, however, overlooks the way this language was used in 1789. At the time, legal writers described actions by citizens that could subject their nations to responsibility under the law of nations as “violations of the law of nations.” Today, it is common to speak of a nation—or an official acting on behalf of a nation—as violating the law of nations. At the time the ATS was adopted, however, an individual was also said to “violate the law of nations” if the individual took hostile actions against a nation with whom the United States was at peace, or its citizens. For example, if a U.S. citizen erroneously captured a ship of a neutral nation, the capture was said to be in violation of the law of nations—even though the United States would be held responsible only if it failed to redress the violation. (For more examples, see The Alien Tort Statute and the Law of Nations, pp. 516-17.) In short, to be characterized as a violation of the law of nations, a private act merely had to disturb the peace of nations by subjecting the transgressor’s nation to justified retaliation if it failed to redress the act. It was in this sense that the ATS used the phrase “tort . . . committed in violation of the law of nations.” If Dodge’s contrary reading were correct, then not even violations of the norms embedded in the Blackstone crimes that he believes the ATS was designed to cover—such as interference with ambassadorial rights or safe conducts by private citizens—would constitute torts “committed in violation of the law of nations.”

The ATS and Duplicative Remedies

Dodge also argues that “[a]nother problem with the Bellia-Clark theory is that the United States’ obligation under international law to provide redress would have been fully satisfied by other statutes...which provided criminal liability for assaults on ambassadors and the like. The ATS was clearly designed to go beyond what was necessary to satisfy the United States’ obligations under international law.”

This argument rests on the erroneous assumption that the ATS was designed to redress harms covered by other founding-era statutes relating to ambassadorial rights, violations of safe conducts and piracy. Although the Supreme Court endorsed this view in dicta in Sosa v. Alvarez-Machain, this position overlooks the distinct (and now largely forgotten) obligation of nations to redress harms inflicted by their citizens against aliens. The Crimes Act created criminal liability for assaults on ambassadors, violations of safe conducts, and piracy, but not for ordinary acts of violence by U.S. citizens against foreigners. In addition, the general foreign diversity jurisdiction of the federal courts—which Section 11 of the Judiciary Act confers—did not reach most claims by aliens against U.S. citizens for torts because of its amount-in-controversy requirement. In enacting the ATS, Congress conferred a more targeted form of foreign diversity jurisdiction on federal courts to hear tort claims by aliens against U.S. citizens with no amount-in-controversy requirement. In doing so, Congress provided the only means by which the United States could, at the time, redress this distinct type of law of nations violation—a violation that neither the Crimes Act nor ordinary foreign diversity jurisdiction would reach. Accordingly, the ATS was not duplicative of other federal statutes.

The ATS and Foreign Diversity Jurisdiction

At the oral argument in Jesner, the plaintiffs’ counsel opposed the idea that the ATS requires a U.S. defendant by asserting that the statute’s text “went out of its way to specify aliens as proper plaintiffs,” but didn’t specify the nationality of the defendants (p. 71).

When read in context, however, the ATS did not need to spell out that suits by an alien for “a tort only in violation of the law of nations” meant a tort committed by a U.S. citizen. The other alienage provision of the Judiciary Act likewise did not specify that the other party must be a U.S. citizen. The limitation was necessarily implied. The general foreign diversity provision in Section 11 of Judiciary Act—like the ATS in Section 9—also failed to specify that the opposing party must be a U.S. citizen. Section 11 gave the circuit courts original jurisdiction of suits “where the matter in dispute exceeds . . . five hundred dollars, and . . . an alien is a party.” When confronted with the argument that Section 11 permitted suits between aliens, the Supreme Court repeatedly held that Section 11 only covered claims by or against U.S. citizens (as required by Article III). As the Supreme Court explained in 1800 in Mossman v. Higginson:

[T]he 11th section of the judiciary act can, and must, receive a construction, consistent with the constitution. It says, it is true, in general terms, that the Circuit Court shall have cognizance of suits “where an alien is a party;” but as the legislative power of conferring jurisdiction on the federal Courts, is, in this respect, confined to suits between citizens and foreigners, we must so expound the terms of the law, as to meet the case, “where, indeed, an alien is one party,” but a citizen is the other (p. 14).

In 1807, the Marshall Court unanimously reaffirmed this reading of Section 11 in Montalet v. Murray (p. 47), stating that “the courts of the United States have no jurisdiction of cases between aliens.” The first Congress (and early Supreme Court) would have understood the ATS to be limited in the same way by Article III. The ATS was a specific grant of foreign diversity jurisdiction that was in one sense broader than Section 11 (by omitting the amount in controversy requirement) and in another sense narrower than Section 11 (by limiting suits to torts only committed in violation of the law of nations). Because the United States’ obligation under the law of nations was limited to redressing harms by U.S. citizens against aliens, the first Congress had no reason to confer jurisdiction over suits between aliens. (Indeed, attempting to resolve such disputes in U.S. courts could have violated the law of nations, in addition to exceeding the limits of Article III.) Contrary arguments by modern proponents of broad ATS jurisdiction are simply anachronistic.

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The Supreme Court has never considered, let alone decided, whether permitting a suit solely between aliens under the ATS would violate Article III. Doing so in Jesner would obviate the need to resolve other more difficult questions (such as corporate liability) that are not necessary to decide the case. Deciding this question would also further the Supreme Court’s stated goal of interpreting the ATS in conformity with the expectations of the first Congress.