The curious history of the Alien Tort Statute.

• Author: Stephens, Beth
• Position: III. Separation of Powers and the Battle to Control International Law in the U.S. Legal System B. Sosa v. Alvarez-Machain: The Supreme Court Cautiously Affirms ATS Litigation through Conclusion, with footnotes, p. 1505-1543

2. Sosa v. Alvarez-Machain: The Supreme Court Cautiously Affirms ATS Litigation

   In 2004, the Supreme Court reviewed for the first time the modern application of the ATS, (207) with an opinion that addressed explicitly the central disagreements over judicial power to recognize claims based on violations of international law. Sosa's affirmation of the modern application of the ATS was surprising, given the Rehnquist Court's efforts to restrict litigation as a means to address political and social disputes. (208) But the Court's decision is best understood as an assertion of judicial power that was, at least in part, a reaction to the Bush Administration's claims of expanded executive powers. As passions over that balance-of-powers battle cooled--and as Court personnel changed--the Court has since sought to narrow the reach of the ATS, as discussed in Part V.

   The events that led to the Sosa decision (209) began in 1985 with the brutal torture and murder of a U.S. drug enforcement agent in Mexico. (210) Convinced that Humberto Alvarez-Machain had participated in the torture, U.S. officials hired a group of Mexican citizens, including Jose Francisco Sosa, to kidnap Alvarez-Machain from his office in Mexico and bring him to the United States, where he was indicted. (211) Alvarez-Machain was eventually acquitted of the criminal charges. He returned to Mexico and filed a lawsuit against the U.S. officials and Mexican citizens involved in his abduction. After the U.S. government substituted itself as a defendant in place of the U.S. officials and a series of court rulings pared down both the defendants and the claims, the district court dismissed the claims against the United States, but entered a judgment against Sosa pursuant to the ATS and awarded Alvarez-Machain $25,000 for the twenty-four hours he had spent in custody in Mexico before being delivered to law enforcement officials in the United States. (212) On appeal, the Ninth Circuit sitting en banc voted six-to-five to uphold the judgment against Sosa and to reinstate the claims against the U.S. government that the district court had dismissed. (213)

   The Supreme Court had, at that point, denied petitions for certiorari in several ATS cases. On its own, the ATS claim in this case was probably not "certworthy": there was no circuit split on any ATS-related issue, no court at any level had rejected the Filartiga approach, (214) and the eleven judges on the Ninth Circuit en banc panel agreed that the ATS provided jurisdiction over claims for violations of universal human rights norms. (215) However, the claims against the U.S. government, which were reinstated by the Ninth Circuit, also by a six-to-five vote, (216) probably ensured that the Supreme Court would agree to review the decision. (217) Once certiorari had been granted on both issues, the case offered opponents of the modern application of the ATS an opportunity to launch a concerted attack on the statute in a case with facts that were far less sympathetic than those in any other successful ATS case. (218)

   The Sosa opinions addressed directly the doctrinal dispute about federal court power to recognize common law causes of action for violations of customary international law. The majority opinion explicitly acknowledged that Sosa and his allies sought to curtail judicial power in these areas, and, over the strenuous objections of the three dissenting Justices, strongly asserted judicial power. (219) In so doing, the opinion also indirectly responded to the broader battle over executive branch powers that had been triggered by the Bush Administration's expanded claims of authority to conduct post-September 11 actions without judicial scrutiny.

   The majority opinion first addressed the source of the cause of action in an ATS action. After agreeing with Professor Casto that the argument that the ATS itself created a cause of action was "simply frivolous," (220) the Court recognized that Congress in 1789 assumed that the courts would use their common law powers to recognize a cause of action for a "modest" set of international law violations. (221) Next, the Court held that federal courts today retain the power to recognize such common law claims, stating that "no development in the two centuries from the enactment of § 1350 to the birth of the modern line of cases beginning with Filartiga v. Pena-Irala has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law." (222) The Court cautioned that federal courts should use this power sparingly, particularly in the area of international human rights, given the danger of adverse impact on foreign relations. (223) But it also emphasized that the federal judiciary has the constitutional power to recognize these claims (224) and rejected the executive branch's argument that to do so would be an unconstitutional interference with the powers of the political branches of the government. (225)

   Sosa also addressed the debate over the scope of violations encompassed by the ATS, holding that the "narrow class" of modern international norms actionable under the ATS are those "of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms" upon which the statute was based. (226) That is, while the list of actionable violations would be based on evolving, modern international law norms, those norms would be limited to violations of similar stature as those that Congress had in mind when it enacted the statute. The Court then held that the abuse alleged by Alvarez-Machain--a brief detention in Mexico before being turned over to lawful authority in the United States--did not meet that standard. (227)

   Justice Scalia raised two objections to the majority opinion. First, he asserted that the federal courts do not have the power to create common law causes of action, subject to limited exceptions that should be narrowly construed. (228) To the extent that the courts recognized common law claims in the eighteenth century, he wrote, they did so as part of the general common law which was repudiated by Erie, in the post-jEnc, positivist era, federal court lawmaking should be limited to areas in which it is explicitly authorized by Congress. (229) Second, he argued that this illegitimate lawmaking--that is, the unauthorized recognition of causes of action--is particularly suspect in ATS cases, because it seeks to enforce international human rights norms, which he called "a 20th-century invention of internationalist law professors and human rights advocates." (230) In ATS cases, Justice Scalia wrote, "unelected federal judges ... usurp [ ] ... lawmaking power by converting what they regard as norms of international law into American law." (231) But "American law--the law made by the people's democratically elected representatives-does not recognize a category of activity that is so universally disapproved by other nations that it is automatically unlawful here, and automatically gives rise to a private action for money damages in federal court." (232)

   In response, the majority noted that international law has long been viewed as part of "our" law, and that Erie did not bar recognition of new substantive federal common law rules. 233 Post-Trie, the Supreme Court has held that the federal courts have the power to develop common law within limited enclaves, including in the area of foreign affairs. (234) The Court concluded: "We think it would be unreasonable to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism." (235)

   The ideological dispute is thus quite explicit in Sosa. Through the vehicle of the ATS, the Justices presented competing visions of the common-lawmaking powers of the federal courts and the role of modern international law in the U.S. legal system. The six-justice majority reasserted the federal judiciary's power to apply federal common law, including common law causes of action based on international law norms.

   The majority opinion also rejected executive branch claims of exclusive power over claims involving international law. The Bush Administration argued that the courts had no authority to decide ATS cases because to do so would trespass on the power of the executive branch. The brief repeated the administration's earlier arguments that courts cannot recognize a common law cause of action for a violation of international law without authorization from one of the political branches. (236) But the Court upheld judicial powers without even noting the executive branch's concerns. At no point did the majority even refer to the executive branch's views about the proper interpretation of the ATS. (237)

   Sosa's failure to consider the executive branch's position, much less defer to it, is particularly significant in the context of the contemporaneous debate about executive power. Sosa was issued on June 29, 2004, the last day of the 2003 Supreme Court term. Just one day earlier, the Court had released two decisions involving the post-September 11 "war on terror" and the Bush Administration's detainee policies: Rasul v. Bush (238) and Hamdi v. Rumsfeld, (239) In Rasul, the Court rejected the administration's claim that detainees held at the U.S. military base in Guantanamo Bay, Cuba, were not entided to any judicial review of their detention. (240) In Hamdi, the administration argued that the courts could not review the classification of a U.S.

   citizen as an enemy combatant, because that determination fell within the constitutional power of the executive branch. (241) The Court rejected that approach, holding that Hamdi was entitled to challenge his detention in court. (242) In both cases, the Court upheld judicial powers in the midst of heated...