# Amicus Curiae Brief — Sosa v. Alvarez-Machain

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0704%3A18

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 542 U.S. 692

## Text

TT

~ Supreme Court, U.S

FILED
? , JAN 2 3 2004
(x) OFFICE OF THE CLERK
No. 03-339
In the

Supreme Court of the United States

>
JOSE FRANCISCO SOSA,
Petitioner,
Vv.

HUMBERTO ALVAREZ-MACHAIN, et al.,

Respondents.

+

On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit

—+

BRIEF AMICUS CURIAE OF PACIFIC LEGAL
FOUNDATION IN SUPPORT OF PETITIONER

—e—

J. DAVID BREEMER ANTHONY T. CASO

Of Counsel

Pacific Legal Foundation

10360 Old Placerville Road,
Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel of Record

Pacific Legal Foundation

10360 Old Placerville Road,
Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amicus Curiae Pacific Legal Foundation

i
QUESTIONS PRESENTED

The Alien Tort Act (ATA), 28 U.S.C. § 1350, provides as
follows: “The district courts shall have 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.”

The questions presented are:

1. Whether the ATA is simply a grant of jurisdiction, or
whether, in addition to granting jurisdiction, it provides a cause
of action upon which aliens may sue for torts in violation of the
law of nations or treaties of the United States.

2. If the ATA provides a cause of action, whether the
actions it authorizes are limited to suits for violations of jus
cogens norms of international law.

3. Whether a detention that lasts less than 24 hours,
results in no physical harm to the detainee, and is undertaken by
a private individual under instructions from senior United
States law enforcement officials, constitutes a tort in violation
of the law of nations actionable under the ATA.

ii

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ........... cece eeee ee eeeeeeee i
TABLE OF AUTHORITIES ...........0-c ccc eeeeeeeeeee ili
INTEREST OF AMICUS CURIAE ...........--0seeeeeee l
STATEMENT OF THE CASE .......... 0c eeeeeeceeeees 2
SUMMARY OF ARGUMENT ...........50 cece eee ee eee 3
ADIT IGT o.oo cccccccccseccccosssccsenecuseueeueees 4

I. APPLICATION OF INTERNATIONAL
PRINCIPLES WITHOUT CONGRESSIONAL
ACQUIESCENCE RAISES SERIOUS
SEPARATION OF POWERS CONCERNS ........... 4

A. The Lower Court’s Decision Usurps Congress’
Exclusive Power to Define the “Law of Nations”... 5

B. The Lower Court’s Decision Assumes
Lawmaking Powers That Properly Reside in
COMBPEES .ccccccccccccveccesesccesesseeeees 7

Il. TO AVOID SEPARATION OF POWERS
PROBLEMS, THE COURT SHOULD REQUIRE
CONGRESSIONAL CONSENT BEFORE AN
INTERNATIONAL PRINCIPLE BECOMES
ACTIONABLE IN THE UNITED STATES AS
“THE LAW OF NATIONS” .... 0.6.02 ee ee eee ee eee 10

CONCLUSION .nccccccccccccscccccccccscscssceseses 16

TABLE OF AUTHORITIES

Page
Cases
Alvarez-Mechain v. United States,
331 F.3d 604 (9th Cir. 2003)... 2... ee cece eee 4,10
Beharry v. Ashcroft, 329 F.3d 51
(2d Cir. 2003) ..... cc cceeececceceeeeeeeseeee 1,13

Beharry v. Reno, 183 F. Supp. 2d 584 (E.D.N.Y. 2002)
rev'd on other grounds, sub nom. Beharry v. Ashcroft,
329 F.3d 51 (2d Cir. 2003) .... 2... cece eee eees 12-13

Black & White Taxicab & Transfer Co. v.
Brown & Yellow Taxicab & Transfer Co.,

276 U.S. 518 (1928) 2.0... cece cece cece e eee eeees 8
City of Milwaukee v. Illinois and Michigan,

451 U.S. 304 (1981) 2.2... ccc ee eee eee eee eens 8
Erie R. Co. v. Tompkins,

304 U.S. 64 (1938) 22... ccc cece eee eee eee eees 7-8
Flores v. Southern Peru Copper Corp.,

343 F.3d 140 (2d Cir. 2003) ... 0.6... cece eee ences 13
Food and Drug Admin. v.

Brown & Williamson Tobacco Corporation, -

529 U.S. 120 (2000) ... 2... cece cece eee ween eeeee l
Oliver Am. Trading Co. v. United States of Mexico,

264 U.S. 440 (1924) 2.2... ccc cece cee eee eee eees 8
Raines v. Byrd, 521 U.S. 811 (1997) «0.66.0 cece e eens 5

Solid Waste Agency of Northern Cook County v.
United States Army Corps of Engineers,
$31 U.S. 159 (2001) 2.0... cece eee cece eee erences 1

Swift v. Tyson, 41 U.S. (16 Pet.) 1(1842) ....----. ee eees 7

iV

TABLE OF AUTHORITIES—Continued

Page
Tel-Oren v. Libyan Arab Republic,

726 F.2d 774 (D.C. Cir. 1984) .......-.0055- 2, 10, 15
The Paquete Habana, 175 U.S. 677 (1900) ........-+5.: 9
The Western Maid, 257 U.S. 419 (1922) ..........+- 15-16
Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. STD (IDSZ) ..ccccccccccccccccccccces 6, 16

United States Constitution
US. Comat. amt. £ 82 on cccccccccccccccccccccccceces +

ast. 1, 6B, oh. 10 2. ccccccccccccccccccccsccccces 4-5

GR BOB cccccccccccccccccccccccccccesccocsses 4

Gt, TE BB. ccccccccccccccccccccecccccccccccees 4

Supreme Court Rules
BeBe STEED oc ccccccccccccccccccevccccceccssesees l
TD ckcccececcdoceccencectecncensesesousccess l
Miscellaneous

Belt, Stuart Walters, Missiles Over Kosovo:
Emergence, Lex Lata, of a Customary Norm Requiring
the Use of Precision Munitions in Urban Areas,

47 Naval L. Rev. 115 (2000) ...........- 0 ee ee eens 11
Bradley, Curtis A., Customary International Law

and Private Rights of Action,

1 Chi. J. Int’] L. 421 (2000)... 2... cee eee eee eee 15

Bradley, Curtis A. & Goldsmith, Jack L.,
Customary International Law as Federal Common
Law: A Critique of the Modern Position,

110 Harv. L. Rev. 815 (1997) .... 2.6... ee eee newness 9

v

TABLE OF AUTHORITIES—Continued

Page
Cassidy, Julie, The Enforcement of Aboriginal
Rights in Customary International Law,
4 Ind. Int’] & Comp. L. Rev. 59 (1993) .......-++-- 11
Clark, Bradford R., Federal Common Law:
A Structural Reinterpretation,
144 U. Pa. L. Rev. 1245 (1996) ......----eeeeeeeee 8

de la Vega, Connie, The Right to Equal Education: Merely a
Guiding Principle or Customary International Legal

Right?, 11 Harv. BlackLetter L.J. 37 (1994) ........- 11
Falk, Richard A., The Role of Domestic Courts in the
International Legal Order (1964) .......-+++++++55 13

Farrand, Max, ed., Yale Univ. Press 1966) (1911)
Committee of Detail, The Records of the
Federal Convention of 1787 ... 22.02 000e0eeeeeeeee 5

Fletcher, William A., The General Common Law
and Section 34 of the Judiciary Act of 1789: The
Example of Marine Insurance,
97 Harv. L. Rev. 1513 (1984) .......- eee eee ee eee 8

International Covenant on Civil and Political Rights
(ICCPR), Senate Comm. on Foreign Relations Report, S.
Rep. No. 102-23 (1992) ......--eeeeeeeeeeeeeeeeees 12

Jarvis, Jason, Constitutional Constraints on the
International Law-Making Power of the Federal

Courts, 13 J. Transnat’] L. & Pol’y 251 (2003) ..... 6-7
Jay, Stewart, The Status of the Law of Nations in Early
American Law, 42 Vand. L. Rev. 819 (1989) .....-- 5-6

vi

TABLE OF AUTHORITIES—Continued
Page

Kaufman, Martin S., et al., Brief Amicus Curiae of Pacific
Legal Foundation and Atlantic Legal Foundation in
Support of Respondents-Appellants in Beharry v.
Ashcroft, at http://www.atlanticlegal.org/beharry.pdf
(June, 2000) (last visited Jan. 16, 2004) ............. 2

Kearns, Anthony P., Note, The Right to Food
Exists Via Customary International Law,
22 Suffolk Transnat’! L. Rev. 223 (1998). .......... 11

Lee, John, The Underlying Legal Theory to Support a
Well-Defined Human Right to a Healthy Environment
as a Principle of Customary International Law,
25 Colum. J. Envtl. L. 283 (2000). ...........-54-- 11

Lessig, Lawrence, Erie-Effects of Volume 110:
An Essay-on Context in Interpretive Theory,
110 Harv. L. Rev. 1785 (1997) ..........0- cee eeeee 8

Madison, James, Notes on Debates of the Convention of
1787, Aug. 17, 1787, at http://www.yale.edu/lawweb/
avalon /debates/817.htm (last visited Jan. 16,2004) .. 14

Maier, Harold G., The Authoritative Sources of
Customary International Law in the United States,
10 Mich. J. Int’] L. 450 (1989) ............000005- 10

Meyer, David A., Note, The 1954 Hague Cultural
Property Convention and Its Emergence Into
Customary International Law,
11 B.U. Int’) L.J. 349 (1993) . 2... eee ee eee 11

O’Connor, Sandra Day, Proceedings of the Ninety-Sixth
Annual Meeting of the American Society of
International Law: Keynote Address,
96 Am. Soc’y Int’! L. Proc. 348 (2002) ............ 14

Vii

TABLE OF AUTHORITIES—Continued
Page

| Popiel, Brian R., Comment, From Customary

| Law to Environmental Impact Assessment:

| A New Approach to Avoiding Transboundary
Environmental Damage Between Canada
and the United States,
22 B.C. Envtl. Aff. L. Rev. 447 (1995) ........++++- 11

Siegal, Charles D., Deference and Its Dangers:
Congress’ Power to ‘Define . . . Offenses
Against the Law of Nations,’
21 Vand. J. Transnat’] L. 865 (1988) ........-++-- 5-6

Signatures to United Nations Covenant on Civil
and Political Rights, http://www.hrweb.org/legal/
cprsigs.html (last visited Jan. 16, 2004) ........-. 13-14

Stewart, David P., United States Ratification of the
Covenant on Civil and Political Rights: The
Significance of the Reservations, Understandings, and

Declarations, 42 DePaul L. Rev. 1183 (1993) .....-- 12
| 2 Story, Joseph, Commentaries on the Constitution
| (2d ed. 1851) 2... . cece eee e cece eee eeeeeee 3,5
Trimble, Phillip R., A Revisionist View of
| Customary International Law,
| 33 UCLA L. Rev. 665 (1986) .......---ee ee eeeee 13,15

Wendelowski, Karyn I., Comment,
A Matter of Trust: Federal Environmental
Responsibilities to Native Americans
Under Customary International Law,

20 Am. Indian L. Rev. 423 (1995-96) ........-+++: 11
Wilets, James D., Jnternational Human Rights

Law and Sexual Orientation,

18 Hastings Int’l & Comp. L. Rev. 1(1994) ...... 11-12

——————— =< Oe ™—~—

Viii

TABLE OF AUTHORITIES—Continued

Page
Young, Ernest A., Sorting Out the Debate Over
Customary International Law,
42 Va. J. Int’] L. 365 (2002) .......... cece eeee 9,15

l

INTEREST OF AMICUS CURIAE!

Pacific Legal Foundation (PLF) is the largest and most
experienced nonprofit public interest law foundation of its kind
in America. Litigating nationwide since 1973, PLF provides a
voice in the courts for thousands of Americans who believe in
a constitutionally grounded government, including adherence to
the principles of separation of powers, democratic consent, and
limited federal judicial powers. PLF has participated as amicus
curiae in a vast assortment of cases heard by this Court over
that time and, in so doing, has consistently argued that courts
must avoid expanding the language of a legislative act where
there is clear potential for a separation of powers problem. See,
e.g., Solid Waste Agency of Northern Cook County v. United
States Army Corps of Engineers, 531 U.S. 159 (2001); Food
and Drug Admin. v. Brown & Williamson Tobacco
Corporation, 529 U.S. 120 (2000).

PLF believes that its public policy perspective and
litigation experience will provide an additional viewpoint on
the issues presented in this case. PLF has formally adopted an
objective committing the Foundation to litigation for the
purpose of reaffirming that international legal principles may
not be judicially applied absent the consent of the political
branches of the United States government. Acting on this
objective, PLF participated along with Atlantic Legal
Foundation as amicus curiae before the Second Circuit Court of
Appeals in Beharry v. Ashcroft, 329 F.3d 51 (2d Cir. 2003), a
case directly raising the issue of the role of customary

! Pursuant to this Court’s rule 37.2(a), all parties have consented to
the filing of this brief. A stipulation letter evidencing such consent
has been lodged with the Clerk of the Court.

Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel for
any party authored this brief in whole or part and that no person or
entity made a monetary contribution specifically for the preparation
or submission of this brief.

2

international law in United States lav. “ee Martin S. Kaufman,
et al., Brief Amicus Curiae of Pacific Legal Foundation and
Atlantic Legal Foundation in Support of Respondents-
Appellants in Beharry v. Ashcroft, at http://www.
atlanticlegal.org/ beharry.pdf (June, 2000) (last visited Jan. 16,
2004). Intending to broaden its activity in this area, PLF has
since committed to participating as amicus curiae in this
important case.

STATEMENT OF THE CASE

The most controversial and far-reaching question raised by
the Ninth Circuit’s treatment of the Alien Tort Act (ATA) in the
present case is what is required to state a violation of the “law

of nations” actionable under the ATA. The lower court

concluded that an international principle can be part of the “law
of nations” and a violation of the principle therefore actionable
under the ATA, even if the political branches of the United
States government have not consented to such a definition of
the “law of nations.” Consequently, this case raises a specific
issue, and the only issue addressed by amicus, concerning the
role of the political branches, and particularly Congress, in
determining what constitutes the “law of nations” for purposes
of application in the United States.”

? Amicus agrees with Petitioner’s arguments that the ATA does not
provide a cause of action given the absence of an express grant in the
statute. Amicus also believes that such a cause of action should not
be implied given the potential for interference with the conduct of
foreign affairs delegated to the political branches of government. See
Tel Oren v. Libyan Arab Republic, 726 F.2d 774, 801-05 (D.C. Cir.
1984) (Bork, J., concurring). These dangers largely depend,
however, on the content of any right of action, not just its bare
existence. Amicus accordingly believes it appropriate and necessary
to direct this Court’s attention to that content issue, particularly to
the question of whether only legislatively adopted and accepted
international principles can be actionable under the ATA.

3

Respondent Alvarez-Machain was present during the 1985
torture and murder of Drug Enforcement Agency agent Enrique
Camanara-Salazar in Mexico. Alvarez-Machain was later
indicted for participation in the murder of Camanara-Salazar
and a warrant was issued for his arrest. In 1990, agents of the
United States abducted Alvarez-Machain in Mexico and
returned him to the United States to stand trial. After he was
acquitted, Alvarez-Machain returned to Mexico and filed suit
against the United States and its agents, seeking damages for his
abduction and detention. One of his theories was that
defendants were liable for their actions under the ATA and,
more specifically, because the abduction and detention violated
principles of “international customary law.”

On June 3, 2003, an en banc panel of the Ninth Circuit
Court of Appeals held that Alvarez-! .achain could indeed hold
the United States and its agents liable for the tort of arbitrary
detention pursuant to a customary international legal principle
forbidding such detention. In so doing, the court held that
congressional consent to an international legal principle as part
of the “law of nations” is not a prerequisite to an ATA suit
under that “law.” In short, the Ninth Circuit effectively
concluded that, if enough other countries besides the United
States favor an international principle, federal courts may
enforce the principle against the United States under the ATA.

SUMMARY OF ARGUMENT

Unlike the “law of the United States,” which is made by
Congress and can be ascertained by examining the United
States Code, there is no clear source or meaning for the “law of
nations.” See 2 Joseph Story, Commentaries on the
Constitution § 1163 (2d ed. 1851) “{O)}ffenses against the law
of nations . . . cannot with any accuracy be completely
ascertained, and defined in any public code, recognized by the
common consent of nations.”). Yet, if the ATA is to have
content and force, the “law of nations” must be defined by

4

someone. Both by explicit command and structural imperative,
the Constitution compels the conclusion that only Congress
should have this power. Indeed, to avoid a construction of the
statute that raises troubling constitutional issues, the Court
should conclude that the “law[s] of nations” actionable under
the ATA are those international principles which have been
defined or recognized as part of the “law of nations” by the
Congress or that have been otherwise adopted as judicially
applicable law by the Congress through constitutional process.

ARGUMENT
I

APPLICATION OF INTERNATIONAL
PRINCIPLES WITHOUT CONGRESSIONAL
ACQUIESCENCE RAISES SERIOUS
SEPARATION OF POWERS CONCERNS

The Ninth Circuit’s fundamental conclusion is that federal
courts may identify international rules as the “law of nations”
applicable in the United States under the ATA, even in the
absence of congressional recognition of a principle as part of
the “law of nations” or the law of the United States. See
Alvarez-Mechain v. United States, 331 F.3d 604, 620 n.15 (9th
Cir. 2003); id. at 650 (O’Scannlain, J., dissenting); id. at 664
(Gould, J., dissenting). But this conclusion is not consistent
with the language of the Constitution and the separation of
powers principles upon which it is structured.

The Constitution grants only Congress the power to
“define” offenses “against the law of nations.” U.S. Const.
art. I, § 8, cl. 10. More generally, it establishes a government
of separated powers, with lawmaking powers vested in
Congress, executive powers in the President, and judicial
powers—the power to interpret and enforce the law—in the
federal courts. See U.S. Const. art. I, § 1; art. II, § 1; art. III,
§ 1. This structure, and the Constitution, are imperiled when
the judiciary treads upon a power expressly delegated to another

5

branch or otherwise exceeds the proper scope of its authority.
See, e.g., Raines v. Byrd, 521 U.S. 811, 820(1997) (recognizing
an “overriding and time-honored concern about keeping the
Judiciary’s power within its proper constitutional sphere”’). The
lower court’s conclusion that no congressional authorization is
necessary for federal courts to apply a rule as the “law of
nations” conflicts with these separation of powers standards.

A. The Lower Court’s Decision Usurps Congress’
Exclusive Power to Define the “Law of Nations”

The framers of the Constitution, many of whom were part
of the Congress that passed ATA, anticipated that the fledgling
United States would respect the “law of nations,” which at that
time consisted (at most) of “the law merchant, maritime law,
and the law of conflicts of laws, as well as the law governing
the relations between states.” Stewart Jay, The Status of the
Law of Nations in Early American Law, 42 Vand. L. Rev. 819,
821-22 (1989). But they well-understood that the “law of
nations” was vague, could not be positively grounded in any
source, and therefore subject to conflicting interpretations. See
2 Joseph Story, Commentaries on the Constitution § 1163
(“{O}ffenses against the law of nations . . . cannot with any
accuracy be completely ascertained, and defined in any public
code, recognized by the common consent of nations.”);
Committee of Detail, The Records of the Federal Convention
of 1787, at 157 (Max Farrand ed., Yale Univ. Press 1966)
(1911) (Madison’s notes) (stating that the “law of nations is too

- vague and deficient to be a rule”).

To reconcile the desire to respect the law of nations with
the need to determine first what that law is, the constitutional
framers granted to Congress the power “[t]o define and punish
... offenses against the law of nations.” U.S. Const. art. I, § 8,
cl. 10. See Charles D. Siegal, Deference and Its Dangers:
Congress’ Power to ‘Define . . . Offenses Against the Law of
Nations,’ 21 Vand. J. Transnat’] L. 865, 874 (1988). Indeed,
during the constitutional debates, it was decided that the term

6

“define” should be added to the original draft of the Offenses
Clause, which only referred to a congressional right to
“punish.” See id. at 875. Though the intent was probably not
to allow Congress to declare the law of nations, the addition
seems to have been meant to allow Congress to resolve and
clarify ambiguities before proposed international principles
became incorporated into United States law. Jd. at 874 (“[T]he
framers wanted to put Congress in a position to deal with
uncertainties as to what the offenses were. There is some
evidence that the framers believed [power under] the clause was
not restricted to the ‘offenses against the law of nations’
recognized in 1789.”). Indeed, the power to “define” “offenses
against the law of nations” necessarily implies a power to
define the “law of nations” itself, for one cannot identify a legal
violation until the law is itself known, as the lower court’s
decision in this case aptly illustrates.

The federal courts have no similar constitutional authority.
Although the framers initially considered giving the courts
broad and express authority to adjudicate cases “arising under”
the law of nations, this idea did not prevail. See Stewart Jay,
The Status of the Law of Nations in Early American Law, 42
Vand. L. Rev. at 830. General power to define offenses against
the law of nations can be found only in the enumeration of
Congress’ powers. Since it is established that powers delegated
to one branch of government should be considered exclusive,
and not imparted to another branch through its “aggregate
powers,” the power to define offenses against the law of nations
should be considered a unique prerogative of Congress. See,
e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
588-89 (1952) (legislative power granted to Congress was an
exclusive grant, which power could not also be found in
executive branch through its aggregate powers). Courts
encroach upon this prerogative when they independently
enforce a principle as a violation of law of the nations. See
Jason Jarvis, Constitutional Constraints on the International

7

Law-Making Power of the Federal Courts, 13 J. Transnat’! L.
& Pol’y 251, 252 (2003) (“compliance with the Constitution
mandates the federal courts’ complete withdrawal from the
determination or enforcement of non-statutory customary
international law”). This is exactly what occurred in this case:
the Ninth Circuit defined and punished “arbitrary detention” as
a violation of the “law of nations,” actionable under the ATA,
even though Congress has not reached the same conclusion.

B. The Lower Court’s Decision Assumes Lawmaking
Powers That Properly Reside in Congress

The judiciary runs afoul of separation of powers principles
when it engages in the functional equivalent of lawmaking, as
well as when it usurps a power delegated to another branch of
government. Ina series of cases ending in the seminal decision
of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), this Court
wrestled with the question of whether courts improperly
legislate when they apply rules grounded in a free-floating
general common law, “a transcendental body of law outside of
any particular State,” Erie, 304 U.S. at 79, rather than an act of
a sovereign authority. During the Nineteenth Century, this
Court repeatedly held that courts were within their proper
powers when they resorted to this general law. See, e.g., Swift
v. Tyson, 41 U.S. (16 Pet.) 1 (1842). But, after almost a century
of sustained criticism, the Court reversed course in Erie.

Erie declared that “there is no general federal common
law.” Erie, 304 U.S. at 79. Instead, “law in the sense in which
courts speak of it today does not exist without some definite
authority behind it.” Jd. This conclusion followed from the
conviction that an “unconstitutional course” was set out by “the
ruling in Swift v. Tyson that the supposed omission of Congress
to legislate as to the effect of decisions leaves the federal courts
free to interpret general law for themselves.” Erie, 304 U.S. at
91 (Reed, J., dissenting). Continued application of general
common law principles not grounded in any federal or state
legislative authority amounted to an ‘““unconstitutional

8

assumption of powers by the Courts of the United States.’”
Erie, 304 U.S. at 79 (quoting Black & White Taxicab &
Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276
U.S. 518, 533 (1928) (Holmes, J., dissenting) (emphasis added).

As recognized in Erie, the constitutional infirmity arising
from application of a “general law” unlinked to a legislative act
rested not only in federalism, as is commonly understood, but
also in the separation of powers doctrine. See Lawrence Lessig,
Erie-Effects of Volume 110: An Essay on Context in
Interpretive Theory, 110 Harv. L. Rev. 1785, 1793 (1997).
Thus, Erie made clear that even if the federal government had
power to make law binding on the states, the federal courts had
no independent authority to do so. Erie, 304 U.S. at 78. Erie
therefore ended the judicial practice of making decisions of
federal law that were not grounded in the Constitution or a
congressional act. See City of Milwaukee v. Illinois and
Michigan, 451 U.S. 304, 313 (1981) (“{A] federal court could
not generally apply a federal rule of decision, despite the
existence of jurisdiction, in the absence of an applicable Act of
Congress.”); Bradford R. Clark, Federal Common Law: A
Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1261-62
(1996) (“[A]Jn essential premise of the Court’s decision in Erie
... appears to be that unilateral lawmaking by federal courts in
this context violates the Constitution’s separation of powers.”).

Judicial decisionmaking under the “law of nations” is no
different than decisionmaking under the general common law
doctrine renounced in Erie. Indeed, the “law of nations” has
historically been considered part of that same doctrine. See
Oliver Am. Trading Co. v. United States of Mexico, 264 U.S.
440, 442-43 (1924); William A. Fletcher, The General Common
Law and Section 34 of the Judiciary Act of 1789: The Example
of Marine Insurance, 97 Harv. L. Rev. 1513, 1517-21 (1984).
Swift v. Tyson, the decision expressly overruled by Erie, applied

a general “law merchant” which was understood to be linked to -

the “law of nations.” Logically, Erie halted federal judicial

9

development and application of rules arising under the “law of
nations,” but untethered to any legislative act. Though Erie
generally directed courts to look to state legislative acts, in the
absence of positive federal guidance, this does not throw the
“law of nations” into state hands because here, there is an
exclusive federal guide: it is Congress through its powers under
the Offenses Clause. Consequently, Erie prevents courts from
applying modern customary international principles absent
congressional consent. See Curtis A. Bradley & Jack L.
Goldsmith, Customary International Law as Federal Common
Law: A Critique of the Modern Position, 110 Harv. L. Rev.
815, 852-53 (1997) (after Erie, a federal court cannot apply
customary international law “in the absence of some domestic
authorization to do so, as it could under the [nullified] regime
of general common law”).

Some of the Court’s early decisions may appear
inconsistent with the notion that courts can only apply the “law
of nations” after Congress has clarified the scope of that law in
the United States. See, e.g., The Paquete Habana, 175 U.S.
677, 700 (1900). But these decisions predate Erie, and there is
no persuasive reason for concluding that their broad
understanding of a judicial right to apply the “law of nations”
survived Erie. The argument that the “law of nations” is a
uniquely feder.' area that should not be subject to the control of
the states fails as a ground for expansive judicial power, the
particular concern is indeed federal, but, again, it is one that has
already been delegated by the Constitution to Congress through
the Offenses Clause, not to federal courts.

Therefore, any doubt as to how Erie applies to early
decisions relying on a legislatively ungrounded “law of nations”
should be resolved here in favor of Erie’s unmitigated
renunciation of those decisions. See, e.g., Ernest A. Young,
Sorting Out the Debate Over Customary International Law, 42
Va. J. Int’l L. 365, 393-463 (2002) (reviewing arguments for
allowing application of the “law of nations” as common law

10

after Erie and concluding that such a position is inconsistent
with Erie and in violation of constitutional principles). After
Erie, the “law of nations” can be applied in court only after
congressional action. Harold G. Maier, The Authoritative
Sources of Customary Inte-nai‘onal Law in the United States,
10 Mich. J. Int’] L. 450, 465 (1989) (“[M]Jodern decisions by
United States courts based on principles of customary
international law derived their authority from the United States
body politic.”). The alternate course, finding an unspoken
exception in Erie for continued independent judicial
development of the “law of nations,” would “run counter to
constitutional limits on the role of federal courts.” Te/-Oren,
726 F.2d at 812.

TO AVOID SEPARATION
OF POWERS PROBLEMS, THE COURT
SHOULD REQUIRE CONGRESSIONAL
CONSENT BEFORE AN INTERNATIONAL
PRINCIPLE BECOMES ACTIONABLE IN THE
UNITED STATES AS “THE LAW OF NATIONS”

The Ninth Circuit’s assumption of judicial power to
define the “law of nations” under the ATA is inextricably
linked to its conclusion that such “law” can be ascertained from
the principles in international human rights treaties and
declarations. See Alvarez-Machain, 331 F.3d at 617-18. In
several ways, this approach exacerbates the basic separation of
powers problems identified above, see infra Part I, and
reinforces the conclusion that congressional consent is a
necessary condition for judicial application of the “law of
nations.”

First, independent judicial authority to define the “law ef
nations” opens the door for courts to assert increased control
over policy questions better left in Congress’ hands. Modern
international human rights instruments purport to govern vast

11

areas of national social and economic policy; indeed, scholars
have already identified the following as potential customary
international principles: the right to food,’ the right to equal
education,‘ rights to a healthy environment,” a state obligation
to use “precision munitions,” inviolability of aboriginal
territory,’ “cultural property” rights* and sexual orientation
rights.” While these may be goals worthy of pursuit, the manner

> Anthony P. Kearns, Note, The Right to Food Exists Via Customary
International Law, 22 Suffolk Transnat’! L. Rev. 223 (1998).

* Connie de la Vega, The Right to Equal Education: Merely a
Guiding Principle or Customary International Legal Right?,
11 Harv. BlackLetter LJ. 37 (1994).

> See, e.g., John Lee, The Underlying Legal Theory to Support a
Well-Defined Human Right to a Healthy Environment as a Principle
of Customary International Law, 25 Colum. J. Envtl. L. 283 (2000);
Karyn I. Wendelowski, Comment, A Matter of Trust: Federal
Environmental Responsibilities to Native Americans Under
Customary International Law, 20 Am. Indian L. Rev. 423 (1995-96);
Brian R. Popiel, Comment, From Customary Law to Environmental
Impact Assessment: A New Approach to Avoiding Transboundary
Environmental Damage Between Canada and the United States,
22 B.C. Envtl. Aff. L. Rev. 447 (1995).

® Stuart Walters Belt, Missiles Over Kosovo: Emergence, Lex Lata,
of a Customary Norm Requiring the Use of Precision Munitions in
Urban Areas, 47 Naval L. Rev. 115 (2000).

’ Julie Cassidy, The Enforcement of Aboriginal Rights in Customary
International Law, 4 Ind. Int’! & Comp. L. Rev. 59 (1993).

* David A. Meyer, Note, The 1954 Hague Cultural Property
Convention and Its Emergence Into Customary International Law,
11 B.U. Int’! LJ. 349 (1993).

. James D. Wilets, International Human Rights Law and Sexual
(continued...)

12

and extent to which they are enforced in the United States is for
the American people to determine through their congressional
representatives, not the courts.

So far, Congress has resolutely refused to allow
international human rights treaties and the policies they favor
to supplant or supplement United States law in any way. See
David P. Stewart, United States Ratification of the Covenant on
Civil and Political Rights: The Significance of the
Reservations, Understandings, and Declarations, 42 DePaul L.
Rev. 1183, 1206 (1993) (reservations attached to international
treaties out of “a desire not to effectuate changes to domestic
law”); International Covenant on Civil and Political Rights
(ICCPR), Senate Comm. on Foreign Relations Report, 8. Rep.
No. 102-23, at 14 (1992) (reservations to ICCPR preserving
: differences between United States law and the requirements of
. the ICCPR were designed to ensure that “changes in U.S. law

in these areas will occur through the normal legislative

process’’) (emphasis added).

But, the Ninth Circuit’s recognition of an independent
judicial power to define the “law of nations” allows courts to
enforce international treaty policies and principles, under the
ATA, even when they lack congressional support. This not
only renders superfluous the Senate’s right to consent or reject
far-reaching treaties, it also provides the judiciary with a
powerful mechanism for tinkering with American policy. Just
as the Ninth Circuit used its assumed power to define the “law
of nations” to pass judgment on United States policy regarding
extraterritorial arrest, a future court might use the same
technique to influence United States’ environmental or
immigration policy. See, e.g., Beharry v. Reno, 183 F. Supp. 2d
584 (E.D.N.Y. 2002) (customary international principle against
arbitrary detention required federal immigration statute to

* (...continued)
Orientation, 18 Hastings Int’! & Comp. L. Rev. 1, 119 (1994).

13

provide an additional hearing to an alien set to be deported,
even in face of conflicting plain language of statute), rev ‘d on
other grounds, sub nom. Beharry v. Ashcroft, 329 F.3d 51 (2d
Cir. 2003); Flores v. Southern Peru Copper Corp., 343 F.3d
140, 144 (2d Cir. 2003) (under the ATA, plaintiffs allege
violation of customary international law rights to “sustainable
development” and “health”).

Moreover, an assumed judicial power to define the law of
nations by reference to international treaty principles clearly
gives foreign nations, even those that are outwardly hostile to
the United States, a powerful mechanism for creating United
States law. See Richard A. Falk, The Role of Domestic Courts
in the International Legal Order 72 (1964) (assumption of
international relations powers “principally entrusted by the
Constitution to the Congress or the Executive” converts courts
into “agent[s] of the international order”). International human
rights agreements, and the potential customary international
principles which they advance are, after all, created by nations
which “are neither representative of the American political
community nor responsive to it.” Phillip R. Trimble, A
Revisionist View of Customary International Law, 33 UCLA L.
Rev. 665, 721 (1986). This is vividly illustrated by noting that
the following nations have adopted the ICCPR, the instrument
on which the Ninth Circuit heavily relies in this case to find a
“law of nations” principle barring arbitrary arrest:

Iraq (pre-liberation)

Iran

North Korea

Afghanistan (pre-liberation)
Syria

Libya

Sudan

14

Somalia
Haiti
Colombia

See Signatures to United Nations Covenant on Civil and
Political Rights, http://www.hrweb.org/legal/cprsigs.html (last
visited Jan. 16, 2004).

While it may not be intrinsically objectionable for
principles favored by these and other nations to influence the
direction of United States law, see Sandra Day O’Connor,
Proceedings of the Ninety-Sixth Annual Meeting of the
American Society of International Law: Keynote Address, 96
Am. Soc’y Int’! L. Proc. 348, 352 (2002) (“{A]cting in accord
with international norms may increase the chances for broader
alliances.”), it is undoubtedly objectionable when this occurs
through a judicial process that is largely immune from, and
unaccountable to, the will of the majority of Americans. See
James Madison, Notes on Debates of the Convention of 1787,
Aug. 17, 1787, at http://www.yale.edu/lawweb/avalon
/debates/8 17.htm (last visited Jan. 16, 2004) (“stating that ‘no
foreign law should be a standard farther than is expressly
adopted”).

To preserve Congress’ right to determine whether foreign
principles will become part of United States law, and to avoid
judicial encroachments on Congress’ policy making role, as
well as on its power to define offenses against the law of
nations, congressional acquiescence’ should be required before

'0 It is not necessary to identify all the congressional actions that
might constitute consent to, or recognition of, a principle as part of
the “law of nations,” for purposes of allowing judicial application of
the principle under the ATA. However, it is worth noting that a prior
congressional consent requirement may be satisfied, as a practical
matter, if the ATA is held to permit suits for some jus cogens norms,

(continued...)

15

federal courts may apply and interpret an international principle
as “the law of nations” in the United States, under the ATA or
otherwise. See Trimble, A Revisionist View of International
Law, 33 UCLA L. Rev. at 716 (“courts should never apply
customary international law except pursuant to political branch
direction’’).

As Justice Holmes explained a decade before Erie:

[W]e must realize that however ancient may be the
traditions of [international] maritime law, however
diverse the sources from which it has been drawn, it
derives its whole and only power in this country
from its having been accepted and adopted by the
United States .... When a case is to be governed by

'? (...continued)

such as torture or piracy, or for some norms of the “law of nations”
as understood at the time ATA was enacted, since a case can be made
that congressional acts or the Constitution already recognize these
limited norms as part of United States law. See, e.g., Tel-Oren, 726
F:2d at 813-14 (Congress may have meant ATA to allow suits for
violations of rights of Ambassadors, safe-conduct, and for piracy,
since these were well-understood at that time to implicate the law of
nations and were specifically addressed in early federal statutes);
Curtis A. Bradley, Customary International Law and Private Rights
of Action, 1 Chi. J. Int’] L. 421, 424 (2000) (discussing Congress’
creation of a cause of action for torture and extrajudicial killing by
1991 enactment of the Torture Victim Protection Act). But the
important point is not that some specific and narrow class of widely
respected international norms are actionable, it is that some norms
are actionable because they enjoy the support of the American people
through the actions of their representatives. See, e.g., Young,
Sorting out the Debate, 42 Va. J. Int’! L. at 448 (noting that in ATA
cases applying jus cogens norms, there appears to be “‘a domestic law
filtering mechanism that determines which international norms are
‘in’ and which are ‘out’ for domestic purposes—an inquiry
reminiscent of the . . . position that customary law may be applied
only with some sort of domestic authorization”).

16

foreign law or by general maritime law that is only a
short way of saying that for this purpose the
sovereign power takes up a rule suggested from
without and makes it part of its own rules.

The Western Maid, 257 U.S. 419, 432 (1922) (emphasis added).

_ By following the path set out long ago in Western Maid,

the Court will reaffirm the constitutional promise to “integrate
the dispersed powers into a workable government. .. . [to]
enjoin[{] upon its branches separateness but interdependence,
autonomy but reciprocity.” Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. at 635 (Jackson, J., concurring).

CONCLUSION

For the foregoing reasons, the decision of the Ninth
Circuit Court of Appeals should be reversed.

DATED: January, 2004.

Respectfully submitted,
J. DAVID BREEMER ANTHONY T. CASO
Of Counsel Counsel of Record
Pacific Legal Foundation Pacific Legal Foundation
10360 Old Placerville Road, 10360 Old Placerville Road,
Suite 100 Suite 100

Sacramento, California 95827 Sacramento, California 95827
Telephone: (916) 362-2833 Telephone: (916) 362-2833
Facsimile: (916) 362-2932 Facsimile: (916) 362-2932

Counsel for Amicus Curiae Pacific Legal Foundation

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0704%3A18. Public record. Not legal advice.