The Feinstein Amendment and Presidential Waivers

The proposed Feinstein Amendment to the Alien Tort Statute includes an interesting provision regarding presidential waivers of litigation. That provision would stipulate that “No court in the United States shall proceed in considering the merits of a claim under subsection (a) if the President, or a designee of the President, adequately certifies to the court in writing that such exercise of jurisdiction will have a negative impact on the foreign policy interests of the United States.”

It has been asked in another context whether there are similar provisions allowing the President to terminate lawsuits on his independent determination of the negative impact of the foreign policy interests of the United States. The answer is yes.

First, the Helms-Burton Act authorizes litigation against foreign corporations that traffick in property confiscated by Cuba. Section 306 of that statute provides that, “The President may suspend the effective date under subsection (a) for a period of not more than 6 months if the President determines … that the suspension is necessary to the national interests of the United States….” Every six months since 1996, the President has made such a determination, such that Title III of Helms-Burton has yet to become effective. In each case the President has precluded litigation from ever going forward, thereby making the litigation section of Helms-Burton an effective dead letter. This suggests the President has express delegated authority to preclude litigation that is against the national interest.

Another example is the Algiers Accords. As part of the settlement of the Iranian hostage crisis, the Carter Administration signed an executive agreement with Iran stipulating that all legal proceedings against Iran shall be terminated in United States courts. A month later President Reagan signed an Executive Order ratifying the obligation. The Court in Dames & Moore affirmed this executive action, finding that Congress had implicitly authorized such action in the IEEPA and the Hostage Act. Litigation that could have otherwise gone forward in U.S. courts was suspended by virtue of executive action in the national interest. This suggests that the President has implied delegated authority, and perhaps inherent authority, to preclude litigation that is against the national interest.

Third, there have been various examples in which the President waives the right of nationals to pursue claims, such as the San Francisco Peace Treaty that was dispositive in the Japanese POW claims against Japanese corporations. In Article 14 of that treaty the United States waived all reparation claims of U.S. nationals against Japan and their nationals. This suggests the President has inherent executive authority to preclude certain litigation that is against the national interest.

On the other hand, in the Holocaust context the President signed an executive agreement with Germany as part of the German slave labor settlement in which the President promised to submit a formal foreign policy statement of interest that all Holocaust-related claims against Germany and its nationals be dismissed. Thus far, every claim in which such a U.S. statement of interest has been filed has resulted in dismissal of the lawsuit. That said, it has never been suggested that the courts are required to dismiss the claims, and according to his book Imperfect Justice, Ambassador Eizenstat negotiated the statement of interest on the belief that an executive order to courts to dismiss pending litigation could not be constitutionally imposed absent a statute. (p. 220). This suggests that the President believed he did not have inherent authority to preclude litigation that is against the national interest.

The presidential waiver provision in the Feinstein Amendment appears to be a version of delegated ad hoc jurisdiction stripping. It is fairly radical in that it provides express delegated authority to dismiss any pending ATS litigation that is determined to be against the national interest. Applying the provision to the facts of Sosa, the President could have dismissed the litigation against U.S. officials who allegedly engaged in transnational kidnapping. It seems odd that the Executive branch could terminate litigation against one of its own.