Alien Tort Statute and State and Local Sanctions

USA*Engage and the National Foreign Trade Council have frequently submitted amicus briefs on behalf of member companies that have been sued under the Alien Tort Statute. The use of the ATS to sue corporations in U.S. courts for aiding and abetting human rights abuses committed by host governments in their own countries has increased dramatically in recent years. Since 1990, 79 ATS suits have been brought against corporations, 60 of which were denied, 14 of which are pending and five of which were settled. The Supreme Court ruling in a case involving Royal Dutch Shell in Nigeria, expected in the summer of 2012, could clarify corporate liability under the ATS. In February 2012, USA*Engage and the NFTC filed an amicus brief with the Court in advance of oral argument.

Since the 1980s, state and local governments have increasingly enacted economic sanctions for foreign policy purposes. The NFTC and USA*Engage have challenged these laws on constitutional grounds. In a landmark decision in 2000, the Supreme Court ruled unanimously in Crosby v. NFTC that the Massachusetts Burma sanctions law was preempted by Federal law and impaired the President's ability to speak with one voice for the nation. The decision specifically ruled out state and local laws that use government procurement as a foreign policy sanction. In NFTC v. Giannoulias in 2007, a Federal District Court held an Illinois sanctions law on Sudan to be unconstitutional under the Commerce Clause of the Constitution.