Jeffrey Toobin Makes Up A Constitutional Question

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On CNN this morning, I was surprised to hear Jeffrey Toobin suggest that the federal government might have a problem seeking the death penalty against Dzhokhar Tsarnaev because Massachusetts doesn’t allow it. Toobin even went so far as to say it might be “unconstitutional” for the Feds to go for death. My understanding of the dual sovereignty doctrine was such that Massachusetts’ choices about how to punish state offenders have very little to do with the Feds’ decision to punish theirs.  But sure enough, Toobin’s Twitter feed from a few days ago seems to hint at the same point:

After confirming my understanding, I’m now comfortable putting this argument to rest: there’s no colorable argument that it is “unconstitutional” for the federal government to impose the death penalty on an offender who commits his crime and/or is later captured and tried in a non-death penalty state.

Toobin’s argument seems confined only to law review notes and Hail Mary sentencing arguments. But pratically speaking, the Government is perfectly comfortable bringing death penalty cases in non-death-penalty jurisdictions, having pursued such a sentence at least 40 times in recent years (with nine cases going all the way to a death sentence). Courts are, too. Although case law is a bit sparse on this question, the First Circuit Court of Appeals–which, keep in mind, covers Massachusetts–has ruled that the federal death penalty may be applied in Puerto Rico despite that commonwealth’s locally-enshrined opposition to death sentences. See generally United States v. Acosta-Martinez, 252 F. 3d 13 (1st Cir. 2001). Puerto Rico probably had a stronger argument than most states, as Congress has passed a rather unique statute acknowledging that certain matters are “locally inapplicable” in Puerto Rico. Excepting the federalism protections found in the Constitution, states don’t really enjoy the same protection. We got another glimpse of how federal law trumps in this context in United States v. Pleau, 680 F. 3d 1 (1st Cir. 2012), a case in which the Governor of Rhode Island refused to turn over a state prisoner to the Feds without some assurance that the prisoner wouldn’t be executed. The Feds refused, and the First Circuit said that the Governor had to turn the criminal over despite the state’s opposition to the death penalty.

In short, “[c]ourts have upheld the Department [of Justice]’s actions [in seeking the death penalty in non-death penalty states] as being constitutionally permissible given the supremacy of federal law.” So Toobin’s imagining an issue that doesn’t really exist. (Much as he has previously imagined the thoughts of Supreme Court Justices.)

What is perhaps more interesting is how Massachusett’s opposition to the death penalty might affect the federal government’s chances of actually getting a death penalty sentence out of a Massachusetts jury. Massholes Massachusetts jurors have long been uncomfortable giving the go-ahead on death.  Even in the infamous “Angel of Death” case, for instance, a Massachusetts jury ultimately declined to recommend death. But, then again, a Massachusetts jury did impose the death sentence on carjacker Garry Lee Sampson. (That sentence was later overturned, but the Feds are trying to reinstate it.)

In any event, Toobin’s state-centered “constitutionality” concern is certainly a red herring. There are enough real legal issues in the Boston Bomber prosecutions, so Toobin would be best advised to stop pressing this imaginary one.

-Michael

A New Supreme Court Case Shows What Might’ve Been in Kiobel

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For some time now, Susan and I have been saying that courts already have a number of tools at their disposal to limit the reach of the ATS, even before Kiobel. Because of those tools, there was really no need for the Court to reach out and limit the scope of the potential substantive claims that could be brought under the ATS. Although the Court was concerned that the ATS permitted undue judicial interference in foreign affairs, courts could’ve already used things like personal jurisdiction, comity, forum non conveniens, and the like to keep themselves out of distant foreign fights.

The Supreme Court granted cert in a case today that shows just how that could’ve worked. DaimlerChrysler AG v. Bauman might first first appear to be a rather dry personal jurisdiction case, lovable only to civil-procedure nerds. But the root question–whether a company may be subjected to a lawsuit in the United States based only on the acts of its subsidiary–goes to a question quite close to the one in Kiobel. (And interestingly, Bauman includes claims under the ATS.) If the court uses Bauman to reemphasize the jurisdictional importance of corporate separateness, then all the problems that the Court was trying to solve in Kiobel would’ve gone away.

Take Kiobel itself as an example. That case involved a Nigerian subsidiary (who was the primary tortfeasor) and a British/Dutch parent. So far as I know, the Nigerian subsidiary had no contacts with the United States, so personal jurisdiction would be hard to establish as to that defendant. (I believe that the District Court ultimately dismissed the Nigerian subsidiary for that very reason.) The British/Dutch parent had an office in the United States, which probably shouldn’t be enough for jurisdiction.  But see Wiwa v. Royal Dutch Petro., 226 F. 3d 88, 92 (2d Cir. 2000). So if we’re being truthful, the lower courts were probably comfortable exercising jurisdiction over the British/Dutch parent because of the parent’s “American connection” through a separate, American subsidiary. But if Bauman goes the way that I expect, than that connection wouldn’t be nearly enough. 

In any event, the Supreme Court probably took Bauman because it applies a test embraced by Wiwa, and Wiwa was invoked (and repudiated) by a few of the players in Kiobel. In other words, the Supreme Court was reminded that a bad case was floating out there and saw a chance to fix it. Still, I wish that Bauman had also reminded the Court that Kiobel was a needless overreach, which could’ve been avoided through the strict application of first-year civil-procedure principles. Too late now.

-Michael

These Aren’t The Droids … Err … Jurisdictional Hooks You’re Looking For

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Folks are already getting creative in their efforts to define potential claims under the new, post-Kiobel ATS. Over at Opinio Juris, Thomas Lee suggests:

Another [case where the ATS might still be invoked] might be an instance where there is US sovereign complicity in the violation outside of the territorial United States, for instance, where a US or alien subcontractor, acting under U.S. governmental authority or authorization, has violated specific, universal, and obligatory customary international law norms (e.g., Common Article III) by enhanced interrogation techniques employed against an alien plaintiff in a foreign sovereign territory.

I’m not sure how that would work. If we’re talking about bringing claims against the individual offender, then you’re going to run into problems with the Westfall Act, which transforms tort claims against federal actors (acting in their official capacties) into Federal Tort Claims Act claims against the United States.  See, e.g., Garcia v. Sebelius, 867 F. Supp. 2d 125, 134-36 (D.D.C. 2012) (magically tranforming ATS claims into FTCA claims). And the FTCA bars claims that arise from (a) intentional torts; or (b) acts in foreign countries, so ATS claims would be dead-in-the water. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 700-12 (2004). For the same reason, a potential alien plaintiff couldn’t bring a claim against the United States directly.

-Michael

Citizens United Is Not Relevant

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Josh Blackman, who I usually agree with, writes this:

What precedent is *not* cited anywhere in Kiobel?

Citizens United. Not a single citation anywhere. So much for an expansion of the corporate-personhood-bugaboo.

I don’t get it. Kiobel, as written, doesn’t really go anwhere near the corporate liability issue. How on Earth would Citizens United then be relevant? One could just as easily say:

What precedent is *not* cited anywhere in Kiobel?

Roe v. Wade. Not a single citation anywhere. So much for an expansion of the abortion-rights-bugaboo.

-Michael

Kiobel: Hating on Common Law?

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My last post on Kiobel got me thinking: is this just a product of good-ole-fashioned conservative hatred of judge-made law? The first part of the majority’s analysis begins by noting that the statute wasn’t used much for the first 200 years or so of its existence. The fact that the Court needed to cite this rather irrelevant fact hints that the Court is none-to-pleased with the emergence of the ATS as an honest-to-goodness statute of judge-made liability, and feels that it’s killing off a statute that never should have developed into anything in the first place. And, in the same vein, the Court later complains about the difficulties of defining standards of liability in the international law context. So what? That difficulty should have been apparent to the Court in Sosa, but it wasn’t a reason to trash the statute then, and it shouldn’t be now.

Erie said more than 70 years ago that ”[t]here is no federal general common law.” I get the sense in reading Kiobel that the conservatives continue to wish that were true, even though the ATS cries out for quite a different conclusion.

-Michael

Congressional Wishes vs. Federal Common Law

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One of the incongruities of Kiobel comes from the fact that the Court is looking to Congress’ wishes or intent in trying to figure out whether the ATS applies abroad. As the Court simultaneously concedes, the ATS is really a very thin reed that opens the window to jurisdiciton, and it is courts that actually determine whether a claim exists. See Kiobel, slip op. at 5 (“[The ATS] instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law. … [T]he question is not what Congress has done but instead what courts may do.”)

I’m not aware of any other case involving this kind of “federal common law” where Congress’ intentions are treated as relevant, let alone decisive. The closest situation I can bring to mind is Federal Rule of Evidence 501, which instructs courts to apply common law notions of privilege. With some rare exceptions, I do not believe that courts analyzing privileges under that rule go back to the original Congressionally-enacted rule and ask what the rule’s “intent” was. My point is, I struggle with the idea that Congress put the power to define this cause of action in the hands of courts–under some very fuzzily-defined standards–but courts are unwilling to use that power in a certain fashion because courts did not receive a particular form of instruction from Congress.

More to come later.

-Michael

Update: Howard Wasserman does a better job of explaining this than I do.

Misunderstanding the Presumption Against Extraterritoriality

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The Supreme Court applied the infamous presumption against extraterritoriality today to knock out Kiobel v. Royal Dutch Petroleum. The majority opinion is so terrible that Susan and I have spent the last couple hours basically yelling at each other over gChat. But now I’d like to focus on one aspect of the opinion that I find particularly infuriating: Roberts’ misapprehension of the presumption itself.

First, let’s imagine that there are three areas of the world:

  • The United States (our territory);
  • All other countries (their territory); and
  • Land belonging to no one (the high seas, Antarctica, etc.).

The language of the Alien Tort statute is pretty heavy on language suggesting it applies to all three of these areas–it mentions “aliens” and “the law of nations,” among other things. But we know that the statute applies to at least the first and third areas, as the Sosa decision told us that the law can apply to piracy.  (Let’s ignore the fact that boats sailing on the high seas might actually be considered part of their flag countries.)

The majority, from all appearances, believes that the presumption against extraterritoriality can only be overcome where it can be shown that Congress specifically intended for the relevant law to apply to all three areas. Laws governing “uncontrolled” areas, like the high seas, evidently aren’t relevant because they don’t ”impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign.” So, even though the ATS reaches two of the three, it can’t be said to be “extraterritorial.”

Wrong, wrong, wrong.

First of all, the presumption against extraterritoriality presumes that a law does not reach any conduct outside the United States’ borders, whether that conduct occurs in uncontrolled areas or areas controlled by other countries.  See, e.g., Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949) (“[L]egislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.”); Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 357 (1909) (“All legislation is prima facie territorial.”). So, any admittedly covered conduct outside the borders of the United States would meaningfully rebut the presumption. This is really the converse of the well-accepted principle that the presumption against extraterritoriality applies even to “uncontrolled” areas–well, except in the case of the ATS, as of today.  See generally Smith v. United States, 507 U.S. 197, 204 (1993) (applying the presumption to conduct in Antarctica).

Second, Roberts seems to think that the presumption against extraterritoriality is motivated by a concern over undue interference in other nations’ affairs. That would be stupid, as notions like comity, or even personal jurisdiction, could help address concerns over undue interference in separate sovereign affairs. In fact, Charming Betsy (which tells us to interpret laws in conformity with international law) would also keep us from overreaching, as it would lead courts to punish extraterritorial conduct only when international law actually imbues the United States with prescriptive jurisdiction. But all of this is something of a moot point because Roberts’ premise is false. The presumption is not motivated by concerns of interference. (If it was, it would probably be called something like “the presumption against intercessiones terra firma,” rather than the presumption against extraterritoriality.)  Rather, the Court has taken great pains to stress that it is “based on the assumption that Congress is primarily concerned with domestic concerns.”  Foley Bros., 336 U.S. at 285; accord Small v. United States, 544 U.S. 385, 388 (2005); Smith, 507 U.S. at 204 n.5. (If it were otherwise, the presumption analysis would probably always begin with an analysis of whether there is any conflict in the first place, as courts do in domestic conflict-of-law cases. But that’s not the way it works.) Given that every Justice seemed to concede that Congress was not only concerned with domestic matters when it passed the ATS, the presumption should have been overcome.

Susan and I will have a lot more to say about this. In the meantime, head over to Opinio Juris to get some good analysis, including this post from Julian Ku.

-Michael

Update: In rereading Morrison, the most recent extraterritoriality case, I found that even that decision acknowledged that conflicts of law have very little to do with the presumption.  See Morrison v. Nat’l Australia Bank Ltd., No. 08-1191, slip op. at 6 (S. Ct. June 24, 2010) (“The canon or presumption applies regardless of whether there is a risk of conflict between the American statute and a foreign law.”).