Much has been made of executive-branch attempts to exert control over cases brought against corporations under the Alien Tort Stat- ute. 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 advisor, sought to convince courts that adjudication of claims against corporate defendants would have an ad- verse effect on U.S. foreign policy, thus triggering the political question doctrine and forcing the courts to rule the claims nonjusticiable. 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, courts have inadvertently created a new two-prong method of analyzing political questions in corporate ATS cases. While this new 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 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 adjudica- tion 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 actually probes the merits of executive branch argumentation would prevent the executive from subverting—through either the old status quo reliance
The New Deference-Based Approach To Adjudicating Political Questions In Corporate Ats Cases: Potential Pitfalls And Workable Fixes,
Rich. J. Global L. & Bus.
Available at: http://scholarship.richmond.edu/global/vol9/iss1/5