[Editor’s Note: This article is part of a Just Security series on the consolidated cases of Nestlé USA, Inc. v. Doe I and Cargill Inc. v. Doe I, which was argued before the Supreme Court on Dec. 1. The introduction to the series and all other articles can be found here.

This article summarizes the amicus brief submitted on behalf of a group of former U.S. government officials who have worked in the national security, foreign policy, international commerce, homeland security, and intelligence sectors in the presidential administrations of both major political parties. The group includes former Secretaries of State Madeleine Albright and John Kerry, former Department of Commerce General Counsel Cameron Kerry, Deputy Secretaries of State Strobe Talbott and William Burns, and former Undersecretaries of State Thomas Pickering and Wendy Sherman. This article presents the main arguments of the brief, which explores the sharp divergence of the current U.S. government position on corporate liability under the Alien Tort Statute (ATS) from its historical position and outlines the foreign policy consequences of adopting the new position advanced by the Acting Solicitor General. The article was prepared by Yale Law School’s Peter Gruber Rule of Law Clinic on behalf of the amici.]

In its brief in the consolidated cases of Nestlé USA, Inc. v. Doe I and Cargill Inc. v. Doe I, the United States has radically shifted from its previous, correct position on corporate liability under the Alien Tort Statute (ATS), a statute whose key provisions have not changed in more than 230 years. The United States’ brief urges the Supreme Court to usurp the role of Congress in order to write into the ATS a categorical bar against corporate liability. Remarkably, the brief departs not just from its own longstanding legal understanding of the statute, but even from the Trump Administration’s own reading of that same statutory provision just three years ago in Jesner v. Arab Bank, PLC (2018). To explain the Trump administration’s diametric shift, the Acting Solicitor General recites a litany of speculative foreign policy claims, asserting that ATS cases against corporations “carry the potential” to undermine U.S. initiatives and “pose the potential risk” of limiting U.S. economic initiatives. However, he points to no concrete foreign policy harm that has emerged from the many years of experience with ATS suits against U.S. corporations, much less some sudden harm that might justify a change in its stance from only three years earlier.

Consistent Interpretation Across Three Branches

In point of fact, this newly minted position conflicts with the historic reading of the statute over many years by each of the three branches of the federal government.

First, appearing as an amicus in Jesner, the Trump administration rightly noted that “[n]o principle of international law precludes the existence of a norm for the conduct of private actors that applies to the conduct of corporations” under the ATS. This administration’s position in Jesner followed that of the Obama administration six years earlier in Kiobel v. Royal Dutch Petroleum Co. (2013), where the United States explained to the Supreme Court that “the text of the ATS does not support” a “categorical bar” for corporations. The Trump administration’s position departs from even earlier executive branch positions under the ATS: neither the Reagan, George H.W. Bush, Clinton, or George W. Bush administrations ever argued that the ATS contained an exemption for U.S. corporate misbehavior.

Further, although the ATS has been repeatedly invoked to provide subject-matter jurisdiction against U.S. corporations since Filártiga v. Peña-Irala (1980), Congress has taken no steps to reject those underlying principles or to revise the ATS to categorically bar or circumscribe corporate liability. The lone congressional proposal to amend the ATS, which failed to pass either chamber, did not seek to categorically foreclose corporate liability.

Finally, the United States’ longstanding reading of the ATS to allow corporate liability also follows established judicial precedent. The Supreme Court and lower courts have declined to categorically foreclose suits under the ATS against U.S. corporations for human rights violations abroad that touch and concern the United States. Leaving the door open for U.S. corporate liability under ATS in the most egregious cases squares with Justice Kennedy’s opinion in Kiobel, which carefully sought to “leave open a number of significant questions regarding the reach … of the Alien Tort Statute.” If, as has been true since the passage of the Alien Tort Statute, and has been recognized by the Supreme Court from the start, an ATS suit may be brought against a U.S. citizen-pirate, it makes no sense to bar such a suit just because the pirate then chooses to incorporate in a U.S. jurisdiction.

Damaging Policy Consequences

In amici’s experience, the policy consequences of the Court accepting this shift in position would be just as radical as its departure from its historic positions. The Acting Solicitor General’s argument would undermine the conduct of U.S. foreign policy, contradict longstanding priorities overseas, and improperly thrust the Court into the conduct of foreign affairs.

First, corporate liability under the ATS supports a clear U.S. policy: that no U.S. entities should perpetuate human rights abuses anywhere in the world. U.S. foreign policy has consistently sought to ensure that U.S. corporations cannot profit from human rights abuses abroad. Abruptly disavowing U.S. corporate liability under ATS would be an unwise and unwarranted deviation from this goal, contributing to a cycle whereby corporations could repeatedly relocate their overseas operations to take advantage of the lowest available labor and human rights standards, basing operations in developing countries that are unwilling or unable to enforce international human rights commitments. Allowing U.S. corporations abroad to commit human rights abuses that would be illegal if committed on U.S. soil abdicates the moral leadership that has long been a centerpiece of U.S. human rights policy.

Second, in amici’s experience, the longstanding U.S. government position has well served U.S. foreign policy and diplomatic interests in monitoring human rights violations abroad by U.S. corporate actors and reduced the incentive for either U.S. persons or their foreign counterparts to seek the involvement of U.S. persons, including corporations, in activities that violate settled and universal tenets of international law. The ATS, as designed by Congress more than 200 years ago, complements other congressionally mandated policy tools such as the Torture Victim Protection Reauthorization Act (TVPRA) and Foreign Corrupt Practices Act (FCPA) to help maintain the bipartisan commitment to U.S. companies respecting international law. Contrary to the Acting Solicitor General’s spurious claim that “ATS lawsuits against domestic corporations carry the potential to undermine U.S. economic initiatives,” Republican and Democratic administrations alike have long taken the position that U.S. corporate respect for human rights “makes good business sense” and is an integral part of the “value proposition” for U.S. firms.

Finally, it is jurisdictional overkill for the Supreme Court to foreclose permanently all subject-matter jurisdiction for ATS cases against U.S. corporations – however egregious the conduct may be – based on a speculative fear that some instances of frivolous litigation may arise. Existing judicial canons and doctrines of civil procedure provide ample tools to manage ATS claims and to dismiss suits against U.S. corporations that do not belong in U.S. courts. Given that able judges can easily screen out unmeritorious cases on a case-by-case basis, there is no cause, at this late date, for the Supreme Court to twist an unambiguous jurisdictional statute to eliminate all potential suits against U.S. corporations at the earliest threshold stage.

In sum, adopting the Trump administration’s proposed radical change in position would be bad law, harmful foreign policy, and improper judicial activism. The Supreme Court should not deploy a jurisdictional meat ax when procedural scalpels are available. Nor should it rewrite long-settled statutory text to insert an implied exemption that would protect the most lawless U.S. corporations from liability for appalling human rights abuses.

Image: People fill bags with cacao beans at a cocoa exporter’s in Abidjan, on July 3, 2019. – (Photo credit: SIA KAMBOU/AFP via Getty Images)