The Constitution’s Obscure Offenses Clause: Where the Alien Tort Statute and Military Commissions Meet

Eugene Kontorovich

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I. Introduction

Obscure constitutional provisions rarely give rise to serious questions: that is why they are obscure. Yet sometimes provisions spring quickly from obscurity to relevance. Never in the nation’s history has the scope and meaning of Congress’s power to “Define and Punish . . . Offenses Against the Law of Nations” mattered as much as now. The once seldom-used power has in recent years been exercised in broad and controversial ways, ranging from civil human rights litigation under the Alien Tort Statute (ATS), to military commission trials in Guantanamo Bay, to the historic prosecutions being conducted against Somali pirates in federal courts. Yet it has not been recognized that these issues all potentially involve the Offenses Clause, and raise similar constitutional questions. Indeed, it has not been previously appreciated that these involve constitutional questions at all, because the Offenses Clause has hitherto received little use and less attention.

This Article is a sequel to The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 Northwestern University Law Review 149 (2009). That Article dealt with the extraterritorial scope of the clause, that is, the question of whether it entitles Congress to legislate for the whole world. This is precisely the question that the Supreme Court just asked for further briefing on in the ATS context in Kiobel v. Royal Dutch Shell. This Article speaks not to the geographic scope of the Offenses power, but to its substance. As the Court in Kiobel wrestles with the role of federal courts in determining international norms (the question for which certiorari was originally granted), and other federal courts in the ongoing case of Guantanamo detainee Salim Ahmed Hamdan wrestle with Congress’s ability to define war crimes, the time has come to closely examine Congress’s powers under the Offenses Clause. This once obscure clause, regarded by courts as the source of congressional authority to pass statutes like the ATS and the Military Commissions Act, is now one of the main sites of the fraught and much disputed interface between international law and the Constitution.

The Offenses Clause’s salience comes at a time of unprecedented, yet unheralded, developments in Offenses Clause jurisprudence. Hamdan v. Rumsfeld was the first case ever to find the government exceeded its Offences Clause powers.1  This historic aspect of the case has been overlooked, perhaps because the case was mostly noted for its more newsworthy rebuke to the Bush Administration’s Guantanamo policies. Hamdan’s military commission and ATS litigation cases implicate the same two questions about the scope of the Offenses power; questionsthis Article seeks to resolve. First, can Congress “Define” only offenses that clearly already exist in international law, or does it also have discretion to codify debatable, embryonic, or even nonexistent norms? Second, what happens to whatever discretion Congress has to “Define . . . Offenses” when it delegates that power to a coordinate branch? This Article will explore both these questions.

II. What Can Be Defined?

The Article begins by surveying the evidence about the original meaning of the provision. Because of the lack of any substantial judicial precedents on the meaning of the Clause, the original sources are a natural place to begin even for those not philosophically committed to originalism. For the Offenses Clause, originalism and textualism are all there is. This Part concludes that the originalist evidence is too thin to be decisive, and not entirely unidirectional. On the whole, it supports the narrow, constrained version of the Congress’s ability to “Define” Offenses. The purposes and historical background of “Offenses,” its limited role in the ratification process, and the language itself tend to suggest a limited scope for “defining” and “offenses.” At the Constitutional Convention, the central notion behind the define power was to require that Congress act to bring certainty to preexisting but vague customary norms before anyone could be punished under them. International law in its raw form was too “deficient and vague” to be the basis of liability. The Offenses power was thought of and grouped with a few rather narrow criminal powers, all of which dealt with well-established wrongful conduct. Furthermore, the term “define” has a narrower meaning than those used to confer the plenary regulatory powers of Congress.

More decisively, the “define” power also applied, in the same constitutional clause, to piracy and high seas felonies, and in both those contexts was understood in a series of early Supreme Court decisions to be limited by the external legal content of those terms. The define power could be no broader than the objective external meaning of the category to be defined. Given the lack of early judicial precedent, or even extensive discussions, of the Offenses provisions, the high seas cases are perhaps the strongest available evidence about the contemporaneous meaning of the Define power. They show that Congress cannot define two plus two to be four, or murder plus high seas to be piracy. Moreover, in a case involving the piracy power, the Supreme Court echoed the views that John Marshall and some Framers had been expressing since the first years of the Republic—that only “real” piracies can be defined as such. Congress could not “define” something that did not have the objective status in clear international law. Similarly, in cases about felonies, the Court made clear that Congress’s definitions had to fit within some objective external definition both of felonies and the high seas.

The actions of the early Congresses are more equivocal. They focused their Offenses legislation on the most widely agreed upon international norms, but this does not disprove their potential power to have acted more aggressively. In the Alien Act controversy James Madison wrote strongly against the notion that Congress could establish offenses outside the clear core of the law of nations, and his position apparently received no rejoinder. Finally, the 1794 Neutrality Acts can be read as advancing a broad notion of “Offenses,” one that includes not just international law crimes, but any acts that for which the U.S. would be legally, or perhaps even only politically, responsible to foreign countries. Yet it is not clear from the historical evidence whether Congress considered the measure an exercise of the Offenses power at all. Also, one might note a tension between the Neutrality Act and the Alien Act. In the latter, it seems to have been agreed that being an enemy alien could be a status punishable as an “offense.” Yet under the U.S.-responsibility theory of Offenses (that it allows Congress to regulate any conduct for which foreign states might hold the U.S. to account), enemy aliens would be entirely outside the scope, as their actions would never be attributed to the U.S. Moreover, this theory would not provide any basis for military commission prosecutions of aliens for war crimes abroad.

Yet a narrow notion of define does not mean a lack of judicial deference to such definitions once made by Congress. Here, the particular character of international custom plays the decisive role. As Morris stressed at the Convention, the content of international custom is nebulous and changing. It cannot be determined by reference to any precise set of materials, to say nothing of materials in English. Thus, considerable deference is appropriate, not because the Offenses Clause is any kind of special or plenary power, but because the vagueness of the law of nations itself makes it difficult to determine if Congress has strayed beyond its Article I authorization. In this zone of vagueness, Congress’s decisions should not be easily second-guessed. Yet occasionally, international law is quite precise—such as about the substantive conduct constituting piracy. If deference to Offenses laws is a function of the inherent vagueness of international law, it would be inappropriate in such cases.

III. How Much Definition Can Be Delegated?

This Part shows that, even assuming Congress has significant discretion in defining offenses, this discretion disappears when it fails to provide any definition but rather leaves the determination of international offenses to other branches. The Offenses Clause expects Congress to provide the definition for customary international law norms actionable in U.S. courts. When Congress fails to define any norms, but leaves their identification and definition to the courts, they can only recognize those offenses that are universally agreed upon with an entirely noncontroversial international law definition. Several reasons support this position.

The first involves the policies that led to the inclusion of the word “Define” in the Art. I, § 8, cl. 10 – the only place in the Constitution the term appears. The reason was to require Congress to provide codified and clear regulations in place of the vagaries of international law. Given the indeterminacy of modern international law it would be hard for potential defendants to know in advance the rules that governing their conduct. International law is sufficiently vague that translating it into judicially administrable rules is essentially a legislative function. The federal judiciary, having only limited powers, lacks this common-law like legislative power.

The second reason involves the policies behind the so-called non-delegation doctrine. The ATS represents extraordinarily broad delegation of legislative powers. If such delegation is not limited by some intelligible principle, but instead further broadened by a notion of discretion—the idea that there is no standard against which a definition can be measured—it would go far beyond anything permitted even under the rather forgiving modern separation of powers doctrine. The Supreme Court’s holding in Sosa v. Alvarez-Machain required that ATS causes of action only be recognized for offenses that have a particularly clear definition and universal acceptance. For this class of cases, perhaps a congressional definition would be redundant. What this Article shows is that Sosa’s standard is not merely derived from the statute, but from the requirements of the Constitution itself.

Finally, foreign policy concerns suggest a narrower role for courts when exercising delegated “defining” power than when Congress uses that power. Choosing what norms to recognize as customary international law implicates America’s obligations to other countries, and raises a variety of foreign relations and diplomatic questions. The positions taken by the United States on the content of international law will in turn shape the external development of that law in ways that bind the U.S. Thus, defining “Offenses” can involve high questions of statecraft. The “vagueness” of international law leaves an unusual degree of room for politically guided judgments. The Framers understood the difference between core violations of international law and “novelties or pretensions of equivocal validity.”2. These considerations explain why the Offenses power is given, in the first instance, to Congress, despite the judiciary’s presumptive role of saying “what the law is.”3 Congress’s involvement in foreign relations gives it both special expertise and additional authority.

IV. Implications for the ATS

Thus, regardless of what Congress’s power is under the Offenses Clause, the courts themselves can define only those offenses most clearly established in international law when delegated the power by Congress. This potentially has significant implications for ATS suits. These suits have invoked an increasingly broad set of international norms, of increasing non-obviousness and indefiniteness. When the suitability of a cause of action under the Sosa standard is questionable, doubts must be resolved in favor of caution. This is because the question of definiteness implicates not just the Court’s recent interpretation of the ATS, but also the limits on federal legislative authority and the separation of powers.

A full analysis of whether any particular norm is as definite and universal as piracy or assaults on ambassadors is beyond the scope of this Article. Yet the Court has given a template for analyzing these issues, most recently in Hamdan. To satisfy the Offenses Clause, an offense defined solely by the courts would have to meet the same kind of searching scrutiny given the conspiracy charge in Hamdan. It would have to be shown, for starters, that the same conduct has in fact been punished by other nations or international tribunals as an offense against the law of nations. Finally, one might briefly suggest some recent ATS causes of action are arguably examples of “novelties or pretensions of equivocal validity.” These include the alleged international offenses of child labor, forced labor, cruel and degrading treatment, pharmaceutical testing, and environmental torts.

Perhaps the most active issues in ATS litigation involve not the substantive definition of the crime, but second-order questions. The most contentious of these go to the scope of secondary liability, such as corporate liability and aiding and abetting liability. Yet answering these questions first requires determining where to look. In one view, only the primary conduct—the elements of the offense—comes from international law; all subsidiary questions would be decided by federal common law or some other non-international source, as in Bivens cases. In the other view, at least all matters required to establish liability (like the possibility of corporate culpability) are determined by international law. Under a broader version of this position, all questions, even those posterior to liability like punitive damages, derive from international law.

The analysis in this Article does not answer these questions. But it does suggest that these are not simply questions about the ATS, as they potentially implicate the Offenses Clause. If the ATS does require courts to take these “definitions” from international law, the Offenses Clause would presumably require the same clarity and definiteness for “secondary principles,” which nonetheless determine liability, as for norms of primary conduct. For it is the existence of liability that is characteristic of “offenses,” and those offenses that are against “the law of nations” are primarily for Congress to define.


Eugene Kontorovich, Professor, Northwestern University School of Law; Member, Institute for Advanced Study, School of Social Science.

Copyright © 2012 Northwestern University Law Review.

This Legal Workshop piece is based on the following Article: Eugene Kontorovich, Discretion, Delegation, and Defining in the Constitution’s Offense Clause,  106 N.W. L. R. __ (forthcoming 2012).

  1. 548 U.S. 557 (2006).
  2. Alexander Hamilton, Camillus No. XXXI in 6 THE WORKS OF ALEXANDER HAMILTON, (Henry Cabot Lodge ed.) (Federal Edition) (New York: G.P. Putnam’s Sons, 1904), available at
  3. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

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