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A Forest with No Trees: The Supreme Court and International Law in the 2003 Term

The Supreme Court’s docket in the 2003-2004 term included five cases directly presenting questions of international law. Republic of Austria v. Altmann raised issues of the international law of expropriation and the immunity of foreign sovereigns. Sosa v. Alvarez-Machain concerned a statute authorizing suits to redress “a tort . . . committed in violation of the law of nations.” Rumsfeld v. Padilla, Hamdi v. Rumsfeld, and Rasul v. Bush concerned the status of individuals taken prisoner in the war on terror, thereby raising the subject of that best-known of all international agreements, the Geneva Convention.

The thesis of this Article is that, despite the direct relevance of international law to these cases, the Court repeatedly ignored international law and, when faced with no plausible way to ignore international law, took a highly constricted approach to its application. The Article argues that the Court decided three of the five cases—Altmann, Padilla, and Hamdi—without resolving any substantive international legal questions. In Rasul, the Article asserts, the Court ignored the Geneva Convention, although it did take a pragmatic, control-oriented view of what constituted “sovereignty.” Even in Sosa, where the statute’s plain language—giving federal courts jurisdiction over suits for a “tort, committed in violation of the law of nations”—unavoidably required some attention to international law, the Court repeatedly took a constricted reading of the meaning and relevance of international law, both by ignoring the importance of treaties to the statutory scheme (and history) and by repeatedly limiting the scope of the customary “law of nations.” In all five cases, the Court focused on purely procedural issues and on statutory interpretation instead of on international law.

A concluding section of the Article speculates that the Court downplayed international legal issues not for fear of public, legislative, or executive backlash, but rather because the Court simply is more comfortable with traditional methods of statutory and originalist interpretation than it is with the unfamiliar, decentralized world of international law.

Is OSHA Unconstitutional?

Under the Occupational Safety and Health Act, the Secretary of Labor is authorized to issue whatever standards are reasonably necessary or appropriate to provide safe or healthful places of employment. More than any other provision in federal regulatory law, this language is subject to a plausible nondelegation challenge, because it seems to ask the Secretary to choose among a wide array of intelligible principles for standard-setting. The constitutional challenge raises serious and unresolved questions for both regulatory policy and administrative law. In answering those questions, courts have three principal alternatives. The most aggressive approach would be to invalidate the statute in the hopes of encouraging, for the first time, sustained legislative deliberation about the proper content of occupational safety and health policy. The most modest approach, rooted in the Avoidance Canon, would be to construe the statutory language to produce floors and ceilings on agency action; that approach would require the Secretary to ban significant risks while forbidding the Secretary from regulating trivial or de minimis risks and also requiring the Secretary to show that any regulations are feasible. The third and preferable approach, also rooted in the Avoidance Canon, would be to construe the statute so as to require the agency to engage in a form of cost-benefit balancing. Such a construction would have the advantage of promoting greater transparency and accountability at the agency level. At the same time, it would raise difficult questions about the precise nature of such balancing in the context of occupational safety policy and also about legal constraints on agency assessment of both costs and benefits. Because of the distinctive nature of workplace safety, the best approach would give the agency considerable flexibility on questions of valuation while also permitting serious attention to distributional factors. 

State Action and the Thirteenth Amendment

The Thirteenth Amendment is unique among constitutional provisions in directly regulating private activity. The amendment abolishes slavery both in the familiar antebellum form, in which it was established by the state, and as it might be perpetuated by private individuals, either through their own coercive activity or through the exercise of common law rights. This private action interpretation of the amendment became established soon after the amendment was ratified, and it has remained unquestioned since. This Essay considers the arguments for the amendment’s coverage of private action based on its text, its origins, and the congressional debates over its meaning. The text of the amendment itself makes no reference to the states, unlike the Fourteenth Amendment, as it was modeled on territorial legislation in which Congress exercised plenary authority over private behavior. The congressional debates over the amendment reveal that it was designed to eliminate all forms of slavery, to alter the existing distribution of power between the states and the federal government, and to abolish slavery as a system of property rights—including property rights exercised by private individuals. All of this was accomplished by the self-executing provisions of section 1, but the private action interpretation of the amendment also extends to section 2, which grants Congress the power to enforce the amendment “by appropriate legislation.” This grant of legislative authority provides indirect, but crucial support, for modern civil rights legislation that prohibits private discrimination. Section 2 should not be narrowly construed in an effort to find a restraint on federal power analogous to the state action doctrine under the Fourteenth Amendment. The influence of the Thirteenth Amendment has been—and should continue to be—as broad as the problems of slavery to which it was originally addressed.

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