I am very pleased to be able to comment on Ingrid Wuerth’s recent article, Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department. As readers of this blog are aware, the Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) generally does not apply to suits against individual foreign officials, and that the immunity of such officials is to be determined instead as a matter of common law.
The Executive Branch is now claiming (as it claimed before Samantar) that, when it chooses to do so, it should be able to determine for the courts whether to grant or deny individual immunity in a particular case. This is true, the Executive argues, for both status-based immunity, which protects certain government officials (such as heads of state) from essentially any claims in foreign courts while the officials are in office, as well as for conduct immunity, which protects current and former government officials from claims in foreign courts relating to their official acts while in office.
Ingrid presents a strong critique of the Executive Branch’s position, based on constitutional text and structure, history, and functional considerations. I agree with much of what she has to say, and the federal common law framework for individual immunity issues that she suggests (which would take account of statutory policies, international law, and appropriate deference to the Executive Branch, see pp. 967-75) overlaps with the considerations that Larry Helfer and I recently outlined in International Law and the U.S. Common Law of Foreign Official Immunity. I will nevertheless highlight several ways in which I think the Executive Branch might be able to push back against Ingrid’s analysis.
First, Ingrid spends a lot of time contesting the claim that Congress has affirmatively “authorized” Executive Branch determinations of individual immunity (pp. 939-51), but I do not think the Executive needs to make that claim. Instead, decisions like Dames & Moore v. Regan and Ex parte Quirin suggest that it is probably sufficient for the Executive to argue that Congress was aware of its judicially-recognized authority to determine individual immunity when it enacted the FSIA and did nothing to displace that authority. Unfortunately for Ingrid’s position, the Supreme Court in Samantar provided some support for this sort of congressional acquiescence argument. In explaining its conclusion that the FSIA did not apply to suits against individual officials, the Court referred to the Executive Branch’s pre-1976 control over individual immunity determinations and suggested that this control survived the enactment of the FSIA: “We have been given no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department’s role in determinations regarding individual official immunity.” (To her credit, Ingrid acknowledges this statement, but she focuses on whether it supports a claim of congressional authorization and does not specifically consider its significance for a softer claim of congressional acquiescence.)
Second, Ingrid’s functional critique of Executive control over immunity determinations may be somewhat less persuasive than her formal critique. She notes that the pre-FSIA regime, in which the State Department’s views about foreign governmental immunity were treated by courts as controlling, “proved problematic and was abandoned” (p. 924). While that is true, the lesson from that experience was that the area should be regulated by Congress, not that courts should develop the law on their own. The question that Ingrid’s article addresses, however, is what to do in the absence of congressional regulation. The pre-FSIA history does not necessarily show that the answer is to have judicial rather than Executive Branch lawmaking. Although the Executive Branch may not compare favorably to Congress as a lawmaker on issues of individual immunity, it has certain advantages over the courts, including both better access to information (including information about reciprocity by other countries) and democratic accountability. Perhaps because of those considerations, the courts became less comfortable with independent judicial lawmaking on issues of immunity after Erie v. Tompkins, which made the source-of-authority question more salient, and it is not self-apparent why the courts should be more comfortable with such a lawmaking role today.
Finally, Ingrid acknowledges that, even if the Executive does not have the authority to control immunity determinations, it may be entitled to some deference in these cases (pp. 970-73). Among other things, foreign official immunity implicates difficult and developing issues of customary international law (as Helfer and I discuss in our article), and the Executive’s views about what position the United States should take on these issues are likely to be given significant weight by the courts. There are also a variety of other issues potentially relevant to the common law of immunity, such as the weight that should be given to interventions by the foreign government, and the Executive’s lead role in conducting U.S. foreign policy may suggest the desirability of giving it deference on these issues as well. If so, it is not clear how much of a difference there will be between a regime of Executive Branch control, which Ingrid contests, and a regime of Executive Branch deference, which she does not necessarily contest.
The remand proceedings in Samantar provide an illustration. The district court there initially appeared to give absolute deference to the Executive Branch’s position that immunity should not be conferred on the former Somali official, as Ingrid notes (p.918). In a subsequent hearing on a motion for reconsideration, however, the judge made clear that she was not in fact treating the Executive Branch’s position as dispositive but rather was simply giving it deference. The result was nevertheless the same.
Despite these points, I want to emphasize that Ingrid has written an excellent and timely article that will serve as an important counterpoint to the Executive Branch’s position.