The New Deference-Based Approach to Adjudicating Political Questions in Corporate ATS Cases: Potential Pitfalls and Workable Fixes

Abstract

Much has been made of executive-branch attempts to exert control over cases brought against corporations under the Alien Tort Statute (“ATS”). Under the Bush Administration, the executive branch repeatedly sought to influence district court opinions through targeted letters to the court or statements of interest. These letters, frequently written by the State Department legal adviser, seek to convince courts that adjudication of claims against corporate defendants - frequently large, multinational corporations - would have an adverse effect on U.S. foreign policy, thus triggering the political question doctrine and forcing the courts to rule the claims non-justiciable. Though some courts have, in fact, deferred entirely to the executive branch, others have stood firm. In the process, and through a creative streamlining of the Baker v. Carr political question doctrine analysis, these courts have inadvertently created a new method of analyzing political questions in corporate ATS cases. While this new two-prong analysis simplifies adjudicating these cases, and has so far allowed courts to resist executive branch intrusion, it leaves open such a possibility.

This article first demonstrates how, through this new analysis, courts have stumbled upon a way to reasonably assess executive claims of foreign-policy infringement while at the same time maintaining some level of deference to the executive branch’s judgment. Through an analysis of these targeted State Department letters and the courts’ respective responses, it reveals a shift in the Baker analysis away from the classic six-factor test towards a more streamlined, two-prong up-or-down assessment. This new approach both simplifies political question doctrine adjudication and prevents the executive branch from unilaterally curtailing claims of human rights violations against large corporate defendants.

Second, this article argues that this approach does not conclusively address remaining separation of powers concerns, and thus needs to go further. A strengthened up-or-down approach that probes the merits of executive branch argument would prevent the executive from subverting - through either the old status quo reliance on Baker or a weak up-or-down approach - a powerful judicial branch tool for holding responsible corporate human rights violators.

Keywords: Separation of Powers, Alien Tort Statute, Foreign Affairs, Constitutional Law