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III. PLAINTIFFS' CLAIMS ARE BARRED BY THE POLITICAL QUESTION DOCTRINE.

Plaintiffs' claims fail separately as a matter of law under the political question doctrine, which precludes a court from adjudicating claims that infringe on the exclusive discretion of the political branches. See Baker v. Carr, 369 U.S. 186, 210 (1962); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 259-61 (1796). This doctrine is firmly rooted in constitutional separation of powers and, like standing, imposes “constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.” Allen, 468 U.S. at 750 (citation and quotation omitted). The clearest modem articulation of this doctrine is in Baker v. Carr:

Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 369 U.S. at 217.

Dismissal for lack of subject matter jurisdiction on political question grounds is warranted if any one of the six Baker factors is present, let alone, as here, when virtually all of them are implicated. Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of Petroleum Laden Aboard the Tanker Dauntless Colocotronis, 577 F.2d 1196, 1203 (Sth Cir. 1978). First, the questions raised by these actions - i.e., reparations to former slaves and peace-making in the wake of the Civil War - were consistently committed to the President and Congress, both during and after the Civil War. See infra § III.A. Additionally, these historical claims are not amenable to judicially discoverable and manageable standards for resolution. See infra § III.B. Finally, the remaining Baker factors also are implicated and independently justify dismissal. See infra § III.C.

It is thus not surprising that federal courts have widely concluded that reparations claims raise nonjusticiable political questions, in both slavery and other contexts:

While plaintiff may be justified in seeking redress for past and present [racial] injustices, it is not within the jurisdiction of this Court to grant the requested relief. The legislature, rather than the judiciary, is the appropriate forum for plaintiff's grievances.

Cato, 70 F.3d at 1105 (quoting district court order); id. at 1110 (“[T]here is no cognizable avenue for litigating a complaint about the judgment calls of legislators in their legislative capacity.”); see also supra p. 4 & n.4. The claims here should likewise be dismissed.

 

A. Plaintiffs' Claims Are Barred Because There Is a Demonstrable Constitutional and Historical Commitment of the Reparations Issue to the Executive and Legislative Branches.

Dismissal is required because there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department.” Baker, 369 U.S. at 217. The political question doctrine bars interference with the powers of the President and Congress (i) to make war and set the conditions of peace (including the treatment of former slaves), (ii) to suppress rebellion, (iii) to settle Civil War-related property and reparations claims, and (iv) to grant amnesty. See Baker, 369 U.S. at 211-13;see also Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952) (war making powers “are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference”).

Moreover, dismissal is separately required by the historical record showing that these issues have been, in fact, addressed by the political branches of government, not the judiciary. As the Supreme Court noted in Baker v. Carr:

Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action.

369 U.S. at 211-12 (emphasis added); see Made in the USA Found. v. United States, 242 F.3d 1300, 1311 n.27 (1lth Cir. 2001) (“history may inform the inquiry inasmuch as it fleshes out the manner in which the executive and legislative branches have sought to exercise and accommodate their textually committed foreign affairs powers over time” and “may illuminate any prudential considerations governing the advisability or inadvisability of judicial intervention in a given controversy”), cert. denied,534 U.S. 1039 (2001). Thus, in assessing this Baker factor, the Court need not precisely allocate responsibility to any political branch, but need only “consider whether the issue in question is one whose resolution is best left to the political branches of government.” Greenberg v. Bush, 150 F. Supp. 2d 447, 452 (E.D.N.Y. 2001).

During and after the Civil War, Congress and the President considered reparations for former slaves along with other important national goals, including:

^ the need to end the war with a consensus that could preserve the Union;

^ the need to abolish slavery throughout the Union, including in the politically important border states;

^ the need to provide civil liberties and political protections to freed slaves; and

^ the need to provide an amnesty program to induce Confederate citizens to return to the Union.

The resulting political choices led to civil rights legislation and Constitutional amendments for the protection of freed slaves, rather than to reparations programs. See, e.g., Eric Foner, Politics and Ideology in the Age of the Civil War 131-44 (1980). These choices, driven by myriad historical, political, social and economic factors that were considered by Presidents and Congress, are precisely those which the “political question” doctrine bars a court from revisiting.

 

1. Efforts at the Civil War's outset to punish rebels and to induce defections from the Confederacy.

How to deal with slavery was part of the war plans even early in the Civil War. To punish those in rebellion and to induce them to rejoin the Union, President Lincoln and the Congress took the first steps toward ending slavery and providing relief for freed slaves, while not alienating the important “border” regions of Kentucky, Missouri, Maryland and western Virginia. The threat of property confiscations and the promise of amnesty were aimed at undermining the rebellion.

By September 1862, Lincoln issued a proclamation that in the next Congress he would recommend financial aid to states that (i) rejected the Confederacy and (ii) adopted “immediate or gradual abolishment of slavery.” 12 Stat. 1267 (1862). Lincoln also promised that on January 1, 1863, he would take the controversial step of freeing slaves in states still in rebellion, again tying freedom for slaves to the President's war effort.

 

2. Later wartime efforts to address Freedmen refugee problems.

On January 1, 1863, after a series of Union victories, Lincoln issued the Emancipation Proclamation. 12 Stat. 1268-69 (1863). See also The Wartime Genesis of Free Labor, 1861-1865 at 33, in Freedom: A Documentary History of Emancipation 1861-1867 (Ira Berlin et al. eds., 1990) (“History of Emancipation ”). Expressly relying on his war-making powers as commander-in-chief, Lincoln issued the proclamation “as a fit and necessary war measure for suppressing ... rebellion.” 12 Stat. 1268-69. Indeed, the political and war-related nature of this proclamation is confirmed by the remarkable fact that it did not purport to emancipate slaves in the states loyal to the Union, but only in those areas then in rebellion. See id. Throughout the war, Lincoln's war- and peace-making powers then continued to be used to ensure proper treatment of freed slaves.

Other initiatives similarly confirm that relief for former slaves was integral to the Union's war- and peace-making concerns. In 1865, Congress created an agency within the War Department, the Freedman's Bureau, to provide provisions, clothing, fuel and shelter to freed slaves. 13 Stat. 507-09 (1865). The Bureau had the authority to rent or sell to freed slaves land abandoned or confiscated in the Confederacy. Id. § 4; see also The Wartime Genesis of Free Labor, supra, at 59.

The Second Freedmen's Bureau Act authorized the sale to freed slaves of all remaining confiscated land in twenty-acre parcels. 14 Stat. 173-75 §§ 7, 9 (1866). This confirmed the policy of the political branches to reject reparations to freed slaves in the form of free land. See Eric Foner, Reconstruction: America's Unfinished Revolution 1863-1877 245-46 (1988) ( “Reconstruction”). Indeed, in the Southern Homestead Act, Congress provided for the sale of up to 80-acre parcels of the public lands in Alabama, Mississippi, Louisiana, Arkansas and Florida to freed slaves. 14 Stat. 66-67 (1866). Thus, although land was provided to freed slaves as interim relief during the war, in the Reconstruction era, this policy was not continued.

 

3. Post-war amnesties to secure a lasting peace.

At the end of the Civil War, it was again the political branches, exercising their peace-making powers, which addressed proposals to compensate former slaves. These were inextricably tied to the amnesties and other political efforts to reintegrate the former Confederate states into the Union.

Several amnesties were offered to Confederates in which their property rights were restored. See supra § III.A.2; 13 Stat. 741 (1864). President Johnson extended Lincoln's earlier amnesty to most rebels, restoring all property rights except the right to former slaves, 13 Stat. 758-59 (1865), and amnesty was further extended to virtually all persons willing to take an oath to support the Union of States. 15 Stat. 699-700 (1867). President Johnson later extended a full amnesty - one that was no longer contingent on the taking of any oath of allegiance. 15 Stat. 702-03 (1868). These measures put an end to proposals to use confiscated property to compensate former slaves because they restored property rights to former rebels.

 

4. The later enactment of civil rights legislation in lieu of reparations.

As noted, by the end of the Civil War there was insufficient political support for proposals to provide free land or other direct compensation to freed slaves. Ultimately, Congress rejected reparations in favor of laws providing civil and employment rights to freed slaves. This led to the Civil Rights Acts of 1866, 1870, 1871 and 1875 and the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments. In the end, the political controversy surrounding the legislation enacted to redress the evils of slavery was considerable and led to the impeachment of President Johnson and the eventual fall of the Radical Republicans. See Foner, Reconstruction at 333-45.

 

5. Later reparations efforts by the political branches.

Events after Reconstruction confirm that the determination of the proper remedies for slavery has always been committed to the political branches. In 1890, for example, Representative William J. Connell introduced a bill that would have provided for maximum payments of $500 and awarded lifetime pensions of up to $15 per month to former slaves, see H.R. 11119, 51st Cong., 1st Sess. (1890). This bill was not enacted. In 1898, a similar bill was proposed in the U.S. House of Representatives to award a “pension” to “all persons released from involuntary servitude, commonly called slaves.” H.R. 8479, 55th Cong. § 1 (1898); see also Senate Bill No. 1176, 56th Cong. (1899). That bill was not enacted either.

Calls for congressionally sanctioned reparations for slavedescendants were revived about a decade ago following the enactment of the Civil Liberties Act of 1988, 50 U.S.C. app. § 1989b (2000) (the “CLA”), which provided reparations to Japanese-Americans interned during World War II. Prompted by that act, Representative John Conyers began advocating the “African American Reparations Commissions Act” (currently H.R 40) to establish a national commission to study and make recommendations concerning reparations for slavery.

Simply put, reparations for former slaves were from the very beginning inextricably connected with the wartime and post-war efforts of the President and Congress to prosecute the military and political aspects of the Civil War and to conclude a peace that would be lasting, accepted and enforceable. These efforts ultimately eschewed direct compensation to former slaves in favor of amending the Constitution, enacting and enforcing civil rights legislation, and selling land to former slaves on favorable terms. The constitutional commitment of such issues to the political branches is clear, as is the record of those branches managing such issues without interference from the judiciary. Plaintiffs' invitation for this Court to second-guess these branches in the political, military, economic, moral and social considerations with which they grappled more than 130 years ago is patently unworkable, and in the end confirms the wisdom of the well-settled “political question” doctrine.

 

B. Plaintiffs' Claims Cannot Be Resolved Pursuant to Any Judicially Discoverable and Manageable Standards.

Baker also requires dismissal for the independent reason that there are no judicially discoverable and manageable standards for resolution of these claims. See, e.g., Baker, 369 U.S. at 198 (justiciability concerns “whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded”). The historical issues raised here involve too broad a span of conduct over too broad an expanse of time to be susceptible to any manageable judicial standards for resolution. Indeed, in affirming the dismissal of comparatively recent World War II-era reparations claims, the D.C. Circuit spoke in words equally applicable here:

It may be that the Congress might enact a program and a procedure by which the objectives prayed for could be achieved. But we think the courts alone cannot do it. As presently framed, the problem is not within the established scope of judicial authority .... The span between the doing of the damage and the application of the claimed assuagement is too vague. The time is too long. The identity of the alleged tort feasors is too indefinite. The procedure sought - adjudication of some two hundred thousand claims for multifarious damages inflicted twenty to thirty years ago in a European area by a government then in power - is too complicated, too costly, to justify undertaking by a court without legislative provision of the means wherewith to proceed.... The events, the witnesses, the guilty tortfeasors, their membership in the conspiracy are all so potentially vague at this point as to pose an insoluble problem if undertaken by the courts without legislative or executive guidance, authorization or support. The whole concept is too uncertain of legal validity to sustain the self-establishment of the proceedings by a court in the absence of specific legislative or executive formulation.

Kelberine, 363 F.2d at 995;see also Princz v. Fed. Republic of Germany, 26 F.3d 1166, 1174 n.1 (D.C. Cir. 1994).

Even more than the dismissed World War II reparations claims noted above, the claims here are rife with uncertainties that preclude adjudication by a court on a blank slate without any political framework. For example:

^ The relevant events took place as far back as 1619, see Am. Compl. „ 9.

^ The parties that would be necessary to the adjudication of claims for slavery reparations, including the federal government of the United States, various state governments, various foreign nations, slave traders, slave holders, etc. cannot be joined.

^ The nature of the relief requested in plaintiffs' Amended Complaint - e.g., “the appointment of an independent historic commission” - underscores that the relief they are seeking is political, not judicial.

^ There is no manageable standard nor practical methodology for determining the degree of lineage or level of consanguinity that should be necessary for an individual to be deemed a “descendant[] of enslaved African-Americans,” id. „ 1.

^ The apportionment of liability and damages is simply not subject to judicial determination. There is no reasoned basis for determining, for example, whether damages should be pegged to the number of ancestors who were slaves, or whether damages should be tied to plaintiffs' current economic status.

Having failed in the effort to bring similar charges against the government, plaintiffs seek nothing less than to hold defendant corporations responsible for the entire sweep of centuries of American slavery and its consequences. They couch their claims as “private claims” against “private defendants” as if that saved them from the political question bar. But this ignores that in resolving justiciability issues, the Court must “determine the nature of the underlying dispute and the interests of the parties in having the dispute resolved,” not “how Plaintiff has styled his suit.” In re Nazi Era Cases, 129 F. Supp. 2d at 375 (citing Renne, 501 U.S. at 316). These claims are “fundamentally interrelated with” a variety of sweeping political questions whose resolution can only be achieved in Congress. Id. at 375, 389.

 

C. The Adjudication of Plaintiffs' Claims Would Also Necessarily Implicate the Remaining Baker Factors.

The last four Baker factors are also independent bases to dismiss plaintiffs' dated claims. See Baker, 369 U.S. at 217. To allow claims for reparations would be to ignore or second-guess the political decisions that went into the enactment of the Civil War era constitutional amendments and associated civil rights laws, and a myriad of other political decisions that galvanized civil rights and other relief programs enacted to benefit minorities (including the descendants of slaves) throughout the past century. These policy determinations are for elected officials, not the courts.

Moreover, a resolution of these claims would necessarily tread on the political branches of government. Id. As described above, during and after the bloodiest war in this country's history, these branches grappled with the whole host of reparations issues while simultaneously trying to end the war successfully. These are not choices that the judicial branch may second-guess.

In sum, plaintiffs here are inviting the Court to engage in the same kind of political re-examination encouraged by the plaintiffs in Burger-Fischer, where the court concluded that the political question doctrine compelled dismissal of four class actions over World War II era slave labor:

In effect, plaintiffs are inviting this court to try its hand at refashioning the reparations agreements which the United States and other World War II combatants (whose blood and treasure brought the war of conquest and the program of extermination to an end) forged in the crucible of a devastated post-war Europe and in the crucible of the Cold War.... [T]his is a task which the court does not have the judicial power to perform. To state the ultimate conclusion, the questions whether the reparation agreements made adequate provision for the victims of Nazi oppression and whether Germany has adequately implemented the reparation agreements are political questions which a court must decline to determine.

65 F. Supp. 2d at 282. The claims here should likewise be dismissed.

 

 

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