Foreign Officials Immunity Determinations in U.S. Courts: The Case Against the State Department

The article, Foreign Officials Immunity Determinations in U.S. Courts:  The
Case Against the State Department, considers the executive branch’s power to make foreign official immunity determinations that are binding in U.S. courts. As many readers know, the Foreign Sovereign Immunities Act governs the immunity of foreign states in U.S. courts. This statute does not apply to the immunity of individual foreign officials, however, as the Supreme Court held in Yousuf v. Samantar (2010).

Instead, the Court reasoned in Samantar, the immunity of foreign government officials is controlled by common law. But there is no extant body of federal or state common law governing foreign official immunity, and the Court did not clarify how this law should be developed going forward. The State Department claims the constitutional power to make individual immunity determinations on a case-by-case basis that are binding on the courts, and that the immunity principles articulated by the government should be followed even in cases where it does not make a specific determination. This argument was made to Supreme Court in Samantar (pages 8-13 and 27-28), and also in the 2007 briefing in the Dichter case before the Second Circuit, (pages 2-4).  The issue is a significant one in pending cases: in February, the government submitted a Statement of Interest in the Samantar case on remand (opposing immunity), the district court denied immunity shortly thereafter, and the defendant’s motion for reconsideration was denied.   In March, the government suggested immunity for former Colombian President Alvaro Uribe in the Giraldo v. Drummond case.

The article considers potential constitutional, statutory, and functional bases for the power claimed by the executive branch, and finds them unconvincing.  With respect to the Constitution, there are two older admiralty cases that reason in cursory terms that the executive branch controls foreign state immunity determinations. These cases do not discuss the text of the Constitution, which is generally understood as vesting “law-making” power in Congress, not the executive branch, as emphasized in Youngstown and more recently in Medellin.  Although the Court has held that President has the power to preempt state law by settling claims with foreign governments, immunity determinations share neither the long-standing history nor the (implicit) approval of Congress, both of which the Court has relied upon in the claim-settlement context.

Whether you agree with this argument or not, one purpose of the article is to show the link between the power asserted in the Samantar line of cases and the President’s power in foreign affairs cases more generally, which neither the government’s briefing nor the Court’s opinion addresses.

Turning to statutory arguments, one might argue that the FSIA itself implicitly authorizes the President to make binding immunity determinations for government officials because the statute is explicitly designed to limit executive power – but it applies only to cases against states, not those brought against officials.  Indeed, there is language in Samantar that suggests this, although there is also language that points that other way.  Other statutes from which the Court has inferred congressional approval or acquiescence are significantly different from the FSIA:  they are designed to empower (not limit) the President.

Binding immunity determinations by the executive branch are also problematic from a functional perspective.  Courts will make determinations about the immunity of states by applying the statute, yet in many cases there will be overlap between issues that arise in determining individual and state immunity.  Examples include determination of agency or instrumentality status (relevant to whether or not the individual is a government official at all), and waiver.  There are thus risks of inconsistent adjudications if the courts control the immunity of states, and the executive controls the immunity of individual defendants, especially as both kinds of defendant might be sued in the same case.  The statute was designed in part to prevent inconsistent adjudications, however.

Other functional considerations also suggest that executive branch immunity determinations will not work well. Executive branch determinations of state immunity were treated as binding on the courts from the early 1940’s through the late 1970s (when the FSIA was enacted), and the results were unsatisfactory – as the State Department itself argued to Congress in support of the FSIA. Although the State Department will surely make reasoned and careful immunity determinations, these functional problems will over time arise in cases against individuals just as they did in cases against states.  Finally, there is strong support in the case law for the courts’ power to develop federal common law of foreign official immunity:  this is the approach the Court has taken in the Act of State context which is quite similar to immunity, and it is especially appropriate to ensure that Congress’s goals in FSIA are realized, as the Court reasoned with respect to the Federal Tort Claims Act in the Boyle case.

There are many issues I have not addressed in this post, including international law and comparative analysis, and comments on all aspects of foreign official/state immunity are welcome.  Thanks in advance to the three people who have agreed to formally comment on this post and the article.