Discussion on Foreign Officials Immunity
Over the course of the next few days we are pleased to have Ingrid Wuerth discuss her article on Foreign Officials Immunity Determinations in U.S. Courts: The Case Against the State Department. Her article was recently published in the Virginia Journal of International Law. She argues that the text and structure of the Constitution, functional and historical arguments, the Court’s case law, and implied congressional authorization are all examined and rejected as possible grounds for the power asserted by the executive branch to make determinations as to foreign officials immunity. Instead, the development by courts of a federal common law of individual immunity (with no binding authority in the executive branch) fits comfortably within the existing jurisprudence on federal common law and is preferable on functional grounds.