Court Upholds “Special Mission” Immunity for Chinese Government Official
Executive invocations of foreign affairs as the basis for dismissing otherwise valid litigation doesn’t seem to work very well these days. But there is one area where (thus far) courts have continued to give the U.S. executive essentially complete deference: determinations on immunity for heads of state. And so it is today in the Federal District Court of D.C.’s decision in Lee Weixum v. Bo Xilia dismissing a lawsuit alleging torture and cruel treatment brought by members of the Falun Gong against a Chinese Government official. The basis of the dismissal was the State Department invocation of its right to grant immunity to a foreign government official and to have such a determination binding on courts.
The executive’s continued role in “head of state” immunity determinations is pretty uncontroversial. But should it be? After all, it essentially involves absolutely (or nearly absolute) binding determinations that determine the course of otherwise valid domestic litigation at the complete discretion of the U.S. executive. That’s OK with me, but how does it square with our newly assertive federal courts in the areas of foreign affairs?