Bringing ‘Alien Torts’ to America

A court case that could invite specious international damage claims to the U.S.

(published in The Wall Street Journal, Feburary 28, 2012)

By DAVID B. RIVKIN JR. And LEE A. CASEY

This Tuesday the Supreme Court will hear arguments in two cases that should interest every U.S. company doing business overseas, and especially those operating in the developing world. Kiobel v. Royal Dutch Petroleum Co. and Mohamed v. Palestinian Authority raise the issue of whether corporations can be sued for violations of international law under U.S. statutes, including the Alien Tort Statute.

The ATS was adopted in 1789 by the first U.S. Congress. The statute permits suits by aliens in federal courts for certain alleged international-law violations, but it was moribund for nearly 200 years and its purpose remains opaque. The best guess is that Congress wanted to provide a means by which the U.S. could fulfill its international obligations to vindicate a very discrete set of damage claims by diplomats and other foreign nationals injured or abused by Americans.

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Obama’s reckless recess ploy

No president has resorted to recess appointments when Congress is in session. Expect serious legal challenges to new financial regulations.

By David B. Rivkin Jr. and Lee A. Casey

President Obama’s appointments of Richard Cordray as head of the new Consumer Financial Protection Bureau, and of three new members of the National Labor Relations Board, are all unconstitutional.

Each of these jobs requires Senate confirmation. The president’s ability to fill them without that confirmation, using his constitutional power to “fill up vacancies that may happen during the recess of the Senate,” depends upon there actually being a recess. Both the House of Representatives and the Senate are open for business. The new appointees can pocket their government paychecks, but all their official acts will be void as a matter of law and will likely be struck down by the courts in legal challenges that are certain to come.

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