Tuesday, August 11, 2020


Article Index



A. These Suits Involve Private Interests, Hence Political Question Doctrine is Not Implicated.

Defendants' misrepresent the complaint in an attempt to dissuade this Court from hearing claims that are properly before it. Plaintiffs' claims are brought by private individuals against private corporations for both tort and property harms that were occasioned by defendants' particular acts of years past, as well as their acts of today. Nowhere do the defendants claim, nor can they, that any acts of the Executive or Congressional branch, either then or now, were aimed at or meant to preclude judicial claims of this sort against private corporate entities. Defendants' err in arguing that merely because the claims raised may be considered "political" by some, that the "political question" doctrine is ipso facto invoked. In Kadic v. Karadzic, 70 F.3d 232 (2nd Cir. 1995), an Alien Tort Claims Act case involved gross human rights abuses by a Bosnian Serb leader and touched on highly politicized and sensitive issues. But the Court refused to dismiss on political question grounds cautioning that "judges should not reflexively invoke these doctrines to avoid difficult and somewhat sensitive decisions..." and adding that "[a]lthough these cases present issues that arise in a politically charged context, that does not transform them into cases involving non-justiciable political questions." Id. at 249. As the Supreme Court stated in Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 230 (1986), "[U]nder the Constitution, one of the Judiciary's characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones." See e.g., Valley Forge Christian College vs. Americans United for Separation of Church and State, Inc., 434 U.S. 464, 474 (1981) ("proper regard for the complex nature of our constitutional structure requires...that the Judicial Branch [not] shrink from confrontation with the other two coequal branches of the Federal Government."). Defendants fail to establish that the Constitution precluded the Courts from acting. Rather, history shows that the Court was a co-equal partner in Reconstruction. Likewise, defendants fail to sufficiently establish any of the other Baker factors.


B. The Baker Factors Endorse Justiciability.

1. Defendants Fail to Demonstrate A Constitutional Textual Commitment to the Executive or Legislative Branch.

Defendants offer nothing more than conclusory statements for their proposition that plaintiffs' claims are not justiciable under the first Baker factor, a constitutional textual commitment to the Executive or Legislative Branch .

Justice Brennan's language in Baker refers to a "textually demonstrable constitutional commitment." 369 U.S. at 217. (emphasis added) The text of the Constitution (including its amendments) must display this commitment on its face. Nowhere do defendants demonstrate such a textual commitment. Rather, throughout defendants' Jt. Memo, they make a preliminary logical error: they assume that because Congress or the Executive branch could do something, that means that other branches thereby could not. This is a non-sequitur. That Congress could, for example, enact public or private legislation compensating individuals for tortious acts by the instrumentalities of the federal government does not mean that the judiciary is automatically disabled from hearing all claims against the federal government, as the Federal Torts Claims Act attests. Along the same lines, the "policy choices and value determinations" that Japan Whaling, 478 U.S. at 230 mentions while being committed to Congress and the executive, may also implicate claims that may also be simultaneously justiciable. These are not mutually exclusive categories.

The principal textual commitment that the defendants cite lies in Section 5 of the Fourteenth Amendment and Section 2 of the Thirteenth Amendment. 2. But neither of those provisions is the exclusive commitment that Baker requires. Both explicitly empower Congress, for the first time in the text of the Constitution, to enforce policies and objectives set forth in preceding sections. If the Framers had meant to make those powers exclusive, they could easily have done so. But as Harold M. Hyman, William M. Wiecek, and Stanley I. Kutler, all well-known reconstruction scholars, have repeatedly demonstrated, the Framers chose not to do so, relying on the federal judiciary as a coordinate partner in the enforcement of Reconstruction policy. Whatever else the Constitution might be read to mean, it cannot be read to exclude judicial power from a role in Reconstruction. Id.

A second error by defendants assumes that civil rights legislation (both successful and failed) was intended by Congress in lieu of reparations. Congress did not enact reparations legislation during Reconstruction because it considered, say the 1866 Act or the Enforcement Acts preferable, but rather, because reparations were unthinkable in that era, except by a small coterie of visionary Republicans (Charles Sumner, Thaddeus Stevens, a few others) who are usually called "Radicals". Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877, 228-230. (Harper & Row 1988). Reparations was so far from mainstream thought, that it was never seriously discussed, though occasionally and earnestly suggested by these few. The failed land policies of Reconstruction were not reparations efforts; they had other policy objectives, none of which were compensatory. Id. at 158-170. This is not a matter of comparing apples to oranges, but of comparing apples to a fruit that was not even in the room.

Moreover, defendants' citation of Georgia v. Stanton and Mississippi v. Johnson (Defendants' Jt. Memo at 28 n. 18) refutes their basic point. That is, they rely on these cases to demonstrate that the Supreme Court regarded Reconstruction policy as a matter for the political discretion of the President and Congress, not to be inhibited by federal equitable intervention. However, a passage in Georgia v. Stanton actually supports the plaintiffs' position: "But, according to the course of proceeding under this head in equity, in order to entitle the party to the remedy, a case must be presented appropriate for the exercise of judicial power; the rights in danger, as we have seen, must be rights of persons or property, not merely political rights, which do not belong to the jurisdiction of a court, either in law or equity."73 U.S. (6 Wall.) 50, 76 (1867). Herein, plaintiffs are presenting the "rights of persons or property" to which Justice Nelson referred. Their claims sound in property and tort, and are not public actions.

2. Lack of Judicially Discoverable and Manageable Standards for Resolving the Issues.

With regard to the second Baker factor (lack of judicially discoverable standards), defendants advocate a form of judicial defeatism and misstate the holdings of several cases and the facts in their haste to argue that there is "a lack of judicially discoverable and manageable standards" for the resolution of these actions. (Defendants' Jt. Memo at 35-36). Ignoring the allegations of the complaints, which include events as recent as last year (plaintiffs' consumer protection claims), defendants argue that "the relevant events took place as far back as 1619." Id. In cases raising similar arguments, courts have only found this second Baker factor to be present if the following reasons apply: (1) there are thousands of potential plaintiffs worldwide that must be identified and notified; (2) the existence of several treaties between the governments of defendants and each potential plaintiff that must be analyzed to determine whether they have subsumed individual claims or whether individual remedies have already been provided for; (3) relevant materials come from a multitude of sources -- often in foreign languages -- that are both voluminous and potentially unmanageable by individual courts; (4) when sources are scattered around the world, parties are unlikely to be able to gather all of the pertinent data; (5) potential plaintiffs who are elderly may raise unique challenges, particularly given their locations around the world. In short, defendants must prove that "[w]ithout guidance from the political branches of government, the courts are unable to manage and resolve the issues presented in this case. Beyond speculation, Defendants' have offered nothing to indicate that any of the five "standards" stated by the Baker court is present.

Rather, there is ample evidence that private reparations claims are extremely well suited to judicial resolutions.

Defendants' reliance on the dismissal of several World War II slave labor claims and war reparations claims arising out of the Nazi era on political questions grounds is misleading. Kelberine, Iwanowa and Burger-Fischer and others dealt with the reality that "the post-war claims settlement regime had been exclusively constructed by political branches, and that it was not the place of courts to resolve [these] claims." The claims herein arose in a different factual context than that of the cases addressing reparations for victims of Nazi atrocities. Compensatory payments or reparations to slaves were never part of the Reconstruction efforts. Furthermore, nowhere has it been established that this realm was constitutionally proscribed as exclusively the realm of Congress or the Executive branches. Finally, unlike the Nazi era claims, the claims herein never implicated the treaties or policies of foreign governments.

3. The Remaining Baker Factors (The Impossibility to Resolve the Case Without Disrespecting Other Branches, the Need to Adhere to Previously Made Political Decisions and the Potential to Embarrass Another Branch of the Government) Are Not Present.

Defendants in their Jt. Memo at 37 do not cite additional facts or law in support of the three remaining Baker factors, but rather, argue that the same reasons relied on by defendants also support dismissal under the remaining Baker factors. As has already been urged by plaintiffs, defendants' arguments fail for the same reasons as provided in Point III.B.1 and 2. However, the defendants' arguments fail for a separate basis under the remaining Baker factors.

As recently as several months ago, President Bush in a major policy speech given on Goree Island in Senegal, gave implicit support for the plaintiffs' claims. On July 8, 2003, President Bush publicly declared slavery to be "one of the greatest crimes in history" and to have been a crime even in "John Adam ['s]" time. President Bush's 7/8/03 Speech, (http://www.whitehouse. gov/news/releases/20030708-1.html.)

Far from defendants' cry that the current litigation would embarrass the executive branches, the litigation is entirely consistent with this administration's recent declaration.

As such, defendants' request for dismissal on the political question doctrine must fail.


Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law