Amicus Curiae Brief — Turkiye Halk Bankasi A.S., aka Halkbank, Petitioner v. United States

No. 21-1450

IN THE

TÜRKIYE HALK BANKASI A.Ş, AKA HALKBANK,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Second Circuit

BRIEF OF PROFESSORS INGRID (WUERTH)

BRUNK AND WILLIAM S. DODGE AS AMICI

CURIAE IN SUPPORT OF NEITHER PARTY

INGRID (WUERTH) BRUNK

VANDERBILT UNIVERSITY

LAW SCHOOL

131 21st Avenue South

Nashville, TN 37203

William S. Dodge

UNIVERSITY OF

CALIFORNIA, DAVIS,

SCHOOL OF LAW

400 Mrak Hall Drive

Davis, CA 95616

BARRETT J. ANDERSON

Counsel of Record

COOLEY LLP

10265 Science Center Drive

San Diego, CA 92121

(858) 550-6000

banderson@cooley.com

Adam Gershenson

COOLEY LLP

500 Boylston Street

Boston, MA 02116

i

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST ................................... 1

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT ............................................................... 5

I.

Federal Courts, Not the Executive, Have

the Constitutional Authority to Make

Common-Law Immunity

Determinations ................................................ 6

A.

Congressional Power Over

Foreign Sovereign Immunity ................ 6

B.

Judicial Power to Make and

Apply the Common Law of

Foreign Sovereign Immunity ................ 6

C.

The Executive’s Lack of Power

Over Common-Law Immunity .............. 9

D.

The Recognition Power, the Claim

Settlement Power, and the

Vesting Clause Do Not Apply ............. 14

II.

Federal Courts, Not the Executive, Have

Determined Foreign Sovereign

Immunity Since the Founding Era ............... 17

III.

The Hoffman and Ex Parte Peru Cases

Should Not Be Applied Here ......................... 21

IV.

Federal Courts, Not the Executive, Are

Best Equipped to Make Immunity

Determinations .............................................. 26

CONCLUSION ......................................................... 29

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Agostini v. Felton,

521 U.S. 203 (1997) .............................................. 25

Alfred Dunhill of London, Inc. v.

Republic of Cuba,

425 U.S. 682 (1976) ........................................ 11, 20

Atherton v. F.D.I.C.,

519 U.S. 213 (1997) ................................................ 7

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964) ...................................... passim

Bank Markazi v. Peterson,

578 U.S. 212 (2016) ........................................ 10, 19

Berizzi Bros. Co. v. S.S. Pesaro,

271 U.S. 562 (1926) ........................................ 18, 19

City of Milwaukee v. Illinois &

Michigan,

451 U.S. 304 (1981) ................................................ 7

Crystallex Int'l Corp. v. Bolivarian

Republic of Venezuela,

932 F.3d 126 (3d Cir. 2019).................................. 13

Erie R. Co. v. Tompkins,

304 U.S. 64 (1938) .................................................. 7

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

First Nat’l City Bank v. Banco Nacional

de Cuba,

406 U.S. 759 (1972) ................................................ 8

First Nat’l City Bank v. Banco Para el

Comercio Exterior de Cuba,

462 U.S. 611 (1983) .............................................. 13

Am. Ins. Ass'n v. Garamendi,

539 U.S. 396 (2003) .............................................. 15

Guar. Tr. Co. of N.Y. v. United States,

304 U.S. 126 (1938) .............................................. 14

Hamdan v. Rumsfeld,

548 U.S. 557 (2006) .............................................. 23

Hamdi v. Rumsfeld,

542 U.S. 507 (2004) .............................................. 23

I.N.S. v. Chada,

462 U.S. 919 (1983) ................................................ 4

Janus v. Am. Fed’n of State, Cnty., &

Mun. Emps., Council 31,

138 S. Ct. 2448 (2018) .......................................... 25

Kirschenbaum v. 650 Fifth Ave. &

Related Props.,

830 F.3d 107 (2d Cir. 2016).................................. 15

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Korematsu v. United States,

323 U.S. 214 (1944) .............................................. 24

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803).......................... 10, 11

Medellin v. Texas,

552 U.S. 491 (2008) ...................................... passim

N. Pipeline Const. Co. v. Marathon Pipe

Line Co.,

458 U.S. 50 (1982) ................................................ 11

Opati v. Republic of Sudan,

140 S. Ct. 1601 (2020) .............................. 16, 20, 21

Parklane Hosiery Co. v. Shore,

439 U.S. 322 (1979) .............................................. 12

Pearson v. Callahan,

555 U.S. 223 (2009) .............................................. 25

Petroleos de Venezuela S.A. v. MUFG

Union Bank, N.A.,

51 F.4th 456 (2d Cir. 2022) .................................... 9

Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995) .............................................. 10

Republic of Argentina v. NML Cap.,

Ltd.,

573 U.S. 134 (2014) .............................................. 28

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Republic of Austria v. Altmann,

541 U.S. 677 (2004) .................................. 12, 20, 27

Republic of Mexico v. Hoffman,

324 U.S. 30 (1945) ........................................ passim

Ex parte Republic of Peru,

318 U.S. 578 (1943) ...................................... passim

Reyno v. Piper,

454 U.S. 235 (1981) .............................................. 12

Royal Wulff Ventures LLC v. Primero

Mining Corp.,

938 F.3d 1085 (9th Cir. 2019) ................................ 9

Samantar v. Yousuf,

560 U.S. 305 (2010) ...................................... passim

Schooner Exchange v. McFaddon,

11 U.S. (7 Cranch) 116 (1812) .................. 12, 17, 21

Stern v. Marshall,

564 U.S. 462 (2011) ........................................ 10, 11

Texas Indus., Inc. v. Radcliff Materials,

Inc.,

451 U.S. 630 (1981) ................................................ 7

United States v. Curtiss-Wright Export

Corp.,

299 U.S. 304 (1936) ........................................ 23, 24

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Verlinden B.V. v. Central Bank of

Nigeria,

461 U.S. 480 (1983) ...................................... passim

W.S. Kirkpatrick & Co. v. Env’l

Tectonics Corp., Int’l,

493 U.S. 400 (1990) ...................................... passim

Wallis v. Pan Am. Petroleum Corp.,

384 U.S. 63 (1966) .................................................. 7

Youngstown Sheet & Tube Co. v.

Sawyer,

343 U.S. 579 (1952) .......................................... 9, 23

Zivotofsky ex rel. Zivotofsky v. Kerry,

576 U.S. 1 (2015) ...................................... 14, 23, 24

Constitutional Provisions & Statutes

Foreign Sovereign Immunities Act ................... passim

International Claims Settlement Act of

1949, 22 U.S.C. §§ 1621—1627 ............................. 16

U.S. Const. art. I

§ 1 ........................................................................... 5

§ 8 ........................................................................... 5

U.S. Const. art. II

§ 1 ......................................................................... 16

§ 3 ......................................................................... 14

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

U.S. Const. art. III ..................................................... 10

Other Authorities

Brief for United States, United States v.

Türkiye Halk Bankasi A.Ş,

16 F.4th 336 (2021) (No. 20-3499) ................. 14, 21

Brief for the United States as Amicus

Curiae, Mutond v. Lewis,

141 S. Ct. 156 (2020) (No. 19-185) ......................... 4

Curtis A. Bradley, The Treaty Power

and American Federalism,

97 Mich. L. Rev. 390 (1998) ................................. 24

Ingrid (Wuerth) Brunk, Foreign Official

Immunity Determinations in U.S.

Courts: The Case Against the State

Department,

51 Va. J. Int’l L. 915 (2011) ......................... passim

Edwin D. Dickinson, The Law of

Nations as National Law: “Political

Questions”,

104 U. Pa. L. Rev. 451 (1956) .............................. 20

William S. Dodge & Chimène I. Keitner,

A Roadmap for Foreign Official

Immunity Cases in U.S. Courts,

90 Fordham L. Rev. 677 (2021) ................. 2, 17, 26

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

The Federalist No. 47 (J. Cooke ed.

1961) (James Madison)) ......................................... 9

Philip C. Jessup, Has the Supreme

Court Abdicated One of Its

Functions?,

40 Am. J. Int’l L. 168 (1946) ................................ 19

Jurisdictional Immunities of the State

(Ger. v. It.),

2012 I.C.J. 97 (Feb. 3) .......................................... 12

Chimène I. Keitner, The Forgotten

History of Foreign Official Immunity,

87 N.Y.U. L. Rev. 704 (2012) ............................... 18

Note, Immunity from Suit of Foreign

Instrumentalities and Obligations,

50 Yale L.J. 1088 (1941) ...................................... 19

Note, The Jurisdictional Immunity of

Foreign Sovereigns,

63 Yale L.J. 1148 (1954) ...................................... 19

Saikrishna B. Prakash & Michael D.

Ramsey, The Executive Power Over

Foreign Affairs,

111 Yale L.J. 231 (2001) ...................................... 16

ix

TABLE OF AUTHORITIES

(continued)

Page(s)

Restatement (Fourth) of Foreign

Relations Law

§ 441 (Am. L. Inst. 2018) .............................. 8, 9, 12

§ 452, reporters’ note 1 ......................................... 15

Ganesh Sitaraman & Ingrid (Wuerth)

Brunk, The Normalization of Foreign

Relations Law,

128 Harv. L. Rev. 1897 (2015) ............................. 24

To Define the Jurisdiction of U.S.

Courts in Suits Against Foreign

States: Hearing on H.R. 11315

Before the Subcomm. on Admin. Law

& Governmental Relations of the H.

Comm. on the Judiciary,

94th Cong. 34—35 (1976) ...................................... 27

U.N. Charter, art. 94 ................................................. 10

G. Edward White, The Transformation

of the Constitutional Regime of

Foreign Relations,

85 Va. L. Rev. 1 (1999) ......................................... 18

STATEMENT OF INTEREST1

Amici are professors of international law and

foreign relations law who have written extensively

about the respective roles of the judicial and executive

branches in determining questions of immunity.

Professor Ingrid (Wuerth) Brunk is Helen Strong

Curry Chair in International Law and Director of the

Cecil D. Branstetter Litigation & Dispute Resolution

Program at Vanderbilt Law School. She served as CoReporter for the American Law Institute’s

Restatement (Fourth) of Foreign Relations Law of the

United States from 2012 to 2018 and is Co-Editor-inChief of the American Journal of International Law.

Professor William S. Dodge is John D. Ayer Chair

in Business Law at the University of California, Davis,

School of Law.

He served as Counselor on

International Law to the Legal Adviser at the U.S.

Department of State from 2011 to 2012 and as CoReporter for the American Law Institute’s

Restatement (Fourth) of the Foreign Relations Law of

the United States from 2012 to 2018.

Amici’s scholarship addresses an important

question in this case: if a federal court must address

whether a litigant is entitled to foreign sovereign

immunity, and the Foreign Sovereign Immunities Act

(“the FSIA”) does not apply, is the court bound by the

executive branch’s case-specific determination of

whether immunity applies?

1

No counsel for a party authored this brief in whole or in part,

and no person other than amici and their counsel made a

monetary contribution to this brief’s preparation and

submission. The parties consented in writing to this filing.

2

Amici’s answer is no. See Ingrid (Wuerth)

Brunk, Foreign Official Immunity Determinations in

U.S. Courts: The Case Against the State Department,

51 Va. J. Int’l L. 915 (2011); William S. Dodge &

Chimène I. Keitner, A Roadmap for Foreign Official

Immunity Cases in U.S. Courts, 90 Fordham L. Rev.

677 (2021). Whether foreign sovereign immunity

applies in a non-FSIA case “is properly governed by

the common law,” Samantar v. Yousuf, 560 U.S. 305,

325 (2010), and the common law empowers federal

courts, not the executive, to determine whether

foreign sovereign immunity is available in a particular

case. But the court of appeals answered differently,

finding (with scant analysis) that, “at common law,

sovereign immunity determinations were the

prerogative of the Executive Branch.” Pet. App. 24a.

The district court, for its part, reached the same

result. Id. at 38a.

While amici submit this brief in support of neither

party, they believe the appellate and district courts got

this issue wrong. Amici worry that if these rulings

were left unaltered or, worse yet, adopted by the

Court, they would arrogate to the executive an

astonishingly broad power: to supply binding rules of

decision in domestic cases involving foreign sovereign

immunity claims. Neither the Constitution nor any

congressional authorization grants such domestic

lawmaking power to the executive, and “the

President’s power to see that the laws are faithfully

executed refutes the idea that he is to be a lawmaker.”

Medellin v. Texas, 552 U.S. 491, 526—27 (2008)

(citation omitted). The executive undoubtedly has a

role to play in immunity determinations, but it is not

that of final arbiter.

3

Amici have an interest in ensuring that the Court

has full information to evaluate this important issue

so that it can provide lower courts with the guidance

they need to appropriately consider and weigh the

executive’s views on foreign sovereign immunity.

Amici thus urge the Court to reverse the portion of the

court of appeals’ decision holding that the executive’s

case-by-case immunity determinations are binding on

federal courts.

SUMMARY OF ARGUMENT

Petitioner, an entity owned and controlled by the

Republic of Turkey, was indicted in federal court for

violations of federal criminal law. In response,

Petitioner asserted the defense of foreign sovereign

immunity under the FSIA and the common law.

Assuming that there is subject-matter jurisdiction and

that the FSIA does not apply, Petitioner’s entitlement

to common-law immunity is an issue to be addressed

by the federal judiciary, not one controlled solely by

the executive branch. That result is supported by the

Constitution’s system of separation of powers, this

Court’s precedent, historical practice in federal courts,

and functional considerations, especially considering

Congress’s adoption of the FSIA. See (Wuerth) Brunk,

supra (arguing federal courts should develop the

federal common law of foreign sovereign immunity).

The appellate court’s ruling that it was bound by

the executive’s immunity determinations would afford

the executive unfettered authority to determine the

outcome of specific cases and even — if the language of

mid-20th cases is followed — to create binding rules of

decision that courts must apply even in cases where

the executive stays silent. But the Constitution does

4

not give the executive power to make or apply the

federal common law of foreign sovereign immunity.

The President’s power to recognize other nations does

not include the power to make domestic law that flows

from such recognition. Similarly, the President’s

power to settle claims through international

agreements does not permit the executive to render

binding immunity determinations. As this Court has

repeatedly held, “our Constitution does not

contemplate vesting [lawmaking] power in the

Executive alone.” Medellin, 552 U.S. at 527. For

nearly all of the Republic’s 250-year history — except

from the late 1930s to 1976 — federal courts did not

afford complete deference to the executive’s immunity

determinations. Finally, federal courts are better

positioned as a practical matter than the executive to

decide case-by-case common-law immunity claims.

The court of appeals thus erred when it ceded all

common-law decision-making over immunity and gave

binding deference to “the prerogative of the Executive

Branch.” Pet. App. 24a. This Court should correct the

court of appeals’ decision before it spreads through the

federal judiciary and causes mischief to the

Constitution’s

“single,

finely

wrought

and

exhaustively considered, [legislative] procedure.”

I.N.S. v. Chada, 462 U.S. 919, 951 (1983).

Although this case involves a criminal proceeding,

what the Court decides with respect to deference to the

executive will also affect civil cases in which the

executive claims a similar authority to make

determinations in specific cases and to articulate

binding rules of federal common law. See Brief for the

United States as Amicus Curiae at 11, Mutond v.

5

Lewis, 141 S. Ct. 156 (2020) (No. 19-185) (“Under this

Court’s decisions, the principles recognized by the

Executive Branch governing foreign-official immunity

are to be followed by the courts. That is true not only

in cases in which the Executive files a suggestion of

immunity, but also in cases in which courts must

decide for themselves whether a foreign official is

immune from suit.”).

ARGUMENT

The “common law” of foreign sovereign immunity

governs in cases against foreign entities when the

FSIA does not apply. Samantar, 560 U.S. at 325. As

this Court’s use of the phrase “common law” signals, it

is the judiciary, not the executive branch, that

develops and applies that body of law. To be sure,

courts are constrained on one side by acts of Congress

and on the other side should afford varying levels of

deference on specific issues to the executive. See

(Wuerth) Brunk, supra, at 968—75 (describing

congressional constraints and appropriate areas of

deference to the executive). Courts follow applicable

statutes, relevant international law, and — for certain

discrete issues — the views of the executive. But the

authority to develop, within these confines, the

common law of immunity and to apply it to particular

cases — the power at issue in this case — is

fundamentally judicial, not executive.

That

conclusion is dictated by separation-of-powers

principles inherent in the Constitution’s structure, the

historical development and past practice of federal

courts applying foreign sovereign immunity, and

functional considerations.

6

I.

Federal Courts, Not the Executive, Have the

Constitutional Authority to Make CommonLaw Immunity Determinations

A. Congressional Power Over Foreign Sovereign

Immunity

An analysis of federal power begins, as it must,

with the text of the Constitution. Although the

Constitution does not explicitly refer to immunity, it

does grant to Congress “[a]ll legislative Powers” in

certain delineated areas, including the power “[t]o

regulate Commerce with foreign Nations.” U.S. Const.

art. I, §§ 1, 8. The Court held this legislative authority

gives “Congress . . . the undisputed power to decide, as

a matter of federal law, whether and under what

circumstances foreign nations should be amenable to

suit in the United States.” Verlinden B.V. v. Cent.

Bank of Nigeria, 461 U.S. 480, 493 (1983).

Congress exercised that authority when adopting

the FSIA. Id. at 497—98. But that statute does not

apply to every foreign sovereign immunity

determination. It does not, for example, govern

immunity claims raised by officials of foreign

governments. Samantar, 560 U.S. at 325. And one of

the questions in this case is whether the FSIA applies

in criminal cases. “Even if a suit is not governed by

the [FSIA], it may still be barred by foreign sovereign

immunity under the common law.” Id. at 324.

B. Judicial Power to Make and Apply the

Common Law of Foreign Sovereign Immunity

The federal judiciary — not executive branch

officials — develops that common law and applies it in

specific cases. While it is axiomatic that “[f]ederal

7

courts, unlike state courts, are not general commonlaw courts,” they are still empowered to develop

federal common law in a “few and restricted

instances.” City of Milwaukee v. Illinois & Michigan,

451 U.S. 304, 313 (1981) (citing Erie R. Co. v.

Tompkins, 304 U.S. 64, 78 (1938)). Those limited

instances arise “[w]hen Congress has not spoken to a

particular issue” that implicates significant federal

concerns. Id. (quoting Wallis v. Pan Am. Petroleum

Corp., 384 U.S. 63, 68 (1966)). A traditional enclave of

federal

common

law

covers

some

specific

“relationships with other countries.” Atherton v.

F.D.I.C., 519 U.S. 213, 226 (1997) (citing Banco

Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425

(1964)); see also Texas Indus., Inc. v. Radcliff

Materials, Inc., 451 U.S. 630, 641 (1981) (holding

“federal common law exists only in such narrow areas

as those concerned with [for example] our relations

with foreign nations”). The common law of foreign

sovereign immunity fits comfortably within that

category. This Court said as much in Samantar when

it reasoned that, even if the FSIA does not apply,

immunity may still be available “under the common

law.” 560 U.S. at 324.

The Court’s decision in Sabbatino illustrates the

application of federal common law in narrowly defined

areas of foreign relations law. That case concerned the

applicability of the “act of state doctrine,” which

“precludes the courts of this country from inquiring

into the validity of the public acts a recognized foreign

sovereign power committed within its own territory.”

376 U.S. at 400—01. At issue was Cuba’s expropriation

of sugar that was physically located in Cuba but

owned by U.S. nationals. Id. at 400—08. Cuba sold

8

the sugar to a U.S. purchaser who did not pay Cuba

for it. Cuba sued for conversion and the U.S.

purchaser argued that Cuba’s sugar seizure was

invalid under international law. Id. This Court ruled

for Cuba under the act of state doctrine, which it

reasoned applied as a matter of federal common law in

part because it reflected “the proper distribution of

functions between the judicial and political branches.”

Id. at 427—28.

The Court’s reasoning in Sabbatino applies here.

The act of state and foreign sovereign immunity

doctrines are more than just analogous; they spring

from the same roots.

The Court has already

recognized that “[t]he separate lines of cases

enunciating both the act of state and sovereign

immunity doctrines have a common source” as

“judicially created to effectuate general notions of

comity among nations and among the respective

branches of the Federal Government.” First Nat’l City

Bank v. Banco Nacional de Cuba, 406 U.S. 759, 762

(1972). Both doctrines relate to the extension or

application of judicial power to foreign sovereigns and

their property: foreign sovereign immunity limits a

court’s jurisdiction, and the act of state doctrine

selects the applicable law. See Restatement (Fourth)

of Foreign Relations Law § 441, reporters’ note 3 (Am.

L. Inst. 2018). The Court should therefore take the

same common-law approach in this case that it

embraced in Sabbatino.

While the act of state doctrine is narrow, it is also

well-settled. The Court reaffirmed the doctrine’s

existence and constitutional grounding in W.S.

Kirkpatrick & Co. v. Environmental Tectonics Corp.,

9

International, 493 U.S. 400, 404—05 (1990).

The

doctrine has also been routinely applied by lower

courts. See, e.g., Petroleos de Venezuela S.A. v.

MUFG Union Bank, N.A., 51 F.4th 456, 466—67 (2d

Cir. 2022) (analyzing act of state doctrine’s

applicability); Royal Wulff Ventures LLC v. Primero

Mining Corp., 938 F.3d 1085, 1088 (9th Cir. 2019)

(affirming district court’s dismissal of case under act

of state doctrine); see also Restatement (Fourth) § 441

(restating act of state doctrine).

C. The Executive’s Lack of Power Over CommonLaw Immunity

The executive, by contrast, lacks authority to

develop and apply federal common law, including the

common law of immunity. However, the court of

appeals in this case assigned the “prerogative” of

deciding whether common-law immunity applied to

the executive and found that the decision to prosecute

Petitioner “necessarily manifested the Executive

Branch’s view that no foreign sovereign immunity

existed.” Pet. App. 24a; see also id. at 38a. The

appellate court erred for three reasons.

First, the executive’s power to faithfully execute

the law “refutes the idea that he is to be a lawmaker.”

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 587 (1952); see also Medellin, 552 U.S. at 527—28

(“[U]nder our constitutional system of checks and

balances, ‘[t]he magistrate in whom the whole

executive power resides cannot of himself make a

law.”’ (quoting The Federalist No. 47, at 326 (J. Cooke

ed. 1961) (James Madison))). The Court’s Medellin

opinion emphasizes the point. In that case, the

President issued a memorandum purporting to

10

enforce Article 94 of the United Nations Charter by

ordering state courts to reopen criminal sentences. Id.

at 525. The Court rejected the executive’s attempt

“unilaterally to give the effect of domestic law to

obligations under a non-self-executing treaty.” Id. at

528. “[M]aking law,” held the Court, “requires joint

action by the Executive and Legislative Branches.” Id.

at 527. Applying that clear principle to this case, the

executive is not constitutionally empowered to make

the law of foreign sovereign immunity on its own.

Second, the court of appeals’ (cursory) reasoning

would give the executive the authority to intervene in

specific cases to decide who gets immunity and who

does not; in short, to decide cases. But “Article III of

the Constitution establishes an independent

Judiciary, a Third Branch of Government with the

‘province and duty . . . to say what the law is’ in

particular cases and controversies.” Bank Markazi v.

Peterson, 578 U.S. 212, 225 (2016) (quoting Marbury

v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).

Neither Congress nor the executive may “usurp a

court’s power to interpret and apply the law to the

[circumstances] before it.” Id. (internal quotation

marks omitted); see also Stern v. Marshall, 564 U.S.

462, 483 (2011) (ruling “the judicial Power of the

United States” cannot “be shared’ with another

branch). “[T]he Framers crafted this charter of the

judicial department with an expressed understanding

that it gives the Federal Judiciary the power, not

merely to rule on cases, but to decide them.” Plaut v.

Spendthrift Farm, Inc., 514 U.S. 211, 218—19 (1995)

(emphasis in original).

11

Given this constitutional division of powers, the

Constitution commits “resolution of ‘the mundane as

well as the glamorous, matters of common law and

statute as well as constitutional law, issues of fact as

well as issues of law’–to the Judiciary.” Stern, 564

U.S. at 484 (quoting N. Pipeline Const. Co. v.

Marathon Pipe Line Co., 458 U.S. 50, 86 n.39 (1982)

(Rehnquist, J., concurring in judgment)) (emphasis

added); see also Marbury, 5 U.S. at 177 (“Those who

apply [a] rule to particular cases, must of necessity

expound and interpret that rule.”). The power to apply

the federal common law to particular cases thus rests

with the judiciary, not the executive.

The executive has historically acknowledged this

proper division of powers. With respect to foreign

sovereign immunity determinations, for example, the

executive’s position in its 1952 Tate Letter was that “a

shift in policy by the executive cannot control the

courts.” Alfred Dunhill of London, Inc. v. Republic of

Cuba, 425 U.S. 682, 714 (1976) (appendix 2 to opinion

of the Court reproducing letter from Acting Legal

Adviser Jack B. Tate). The same principle should

govern this case.

Third, the Court already rejected in a similar

context the executive’s claim that it should control

judicial application of a judicial foreign relations

doctrine. In the Kirkpatrick case, the executive made

the same argument with respect to the act of state

doctrine that it advances for common-law immunity

here: that the Court should resolve the case by

deferring wholly to the executive’s views. 493 U.S. at

408. The Court unanimously rejected the executive’s

position, holding “[t]he short of the matter is this:

12

Courts in the United States have the power, and

ordinarily the obligation, to decide cases and

controversies properly presented to them.” Id. at 409

(emphasis added). The Court should apply that

reasoning to common-law immunity.

Indeed, the case against executive power is even

stronger for foreign sovereign immunity than it is for

the act of state doctrine. Immunity is a procedural

doctrine allowing a party to “raise[] a jurisdictional

defense,” whereas “the act of state doctrine provides

foreign states with a substantive defense on the

merits.” Republic of Austria v. Altmann, 541 U.S. 677,

700 (2004); see also Restatement (Fourth) § 441,

reporters’ note 3 (distinguishing act of state doctrine

from foreign sovereign immunity). Common-law rules

governing procedural and jurisdictional issues are

often left to federal courts to develop when Congress

has not spoken, see Reyno v. Piper, 454 U.S. 235

(1981) (developing federal common law of forum nonconveniens), even in arguably “substantive” areas of

the law such as preclusion, see Parklane Hosiery Co.

v. Shore, 439 U.S. 322 (1979) (developing federal

common-law rules of preclusion).

While it is true that federal common law

governing procedural issues in federal courts does not

apply in state courts, there is ample support for the

federal judiciary’s power to make rules of immunity

that bind state courts in cases against foreign

sovereign defendants. The federal government has a

strong interest in cases involving foreign sovereigns.

Verlinden, 461 U.S. at 493 (holding “the primacy of

federal concerns is evident” in foreign sovereign

immunity); Schooner Exch. v. McFaddon, 11 U.S.

13

(7 Cranch) 116, 147 (1812) (ruling vessel “in the

service of a foreign sovereign . . . should be exempt

from the jurisdiction of the country”). And immunity

is required in some instances by customary

international law. See Jurisdictional Immunities of

the State (Ger. v. It.), 2012 I.C.J. 97 (Feb. 3) (holding

customary international law requires immunity from

claims based on conduct of armed forces during armed

conflict). As this Court noted in Sabbatino, “rules of

international law should not be left to divergent and

perhaps parochial state interpretations.” 376 U.S. at

425. Federal common law thus binds the states with

respect to foreign sovereign immunity.

This federal common law should be developed by

federal courts, just as they do in other contexts that

involve litigation against foreign sovereigns and their

instrumentalities. For example, this Court has held

that federal common law governs discrete issues of

substantive liability in cases against foreign

sovereigns that are otherwise governed by state law.

See First Nat’l City Bank v. Banco Para el Comercio

Exterior de Cuba (“Bancec”), 462 U.S. 611, 633 (1983).

In the Bancec decision, the Court recognized that the

FSIA does not address whether a state may be held

substantively liable for the actions of its

instrumentalities or vice versa, and thus created a

federal common-law rule that respected the distinct

legal status of separate juridical entities. Id. at 623.

The Bancec test is drawn from U.S. and international

practice and is designed to fill important gaps left open

by the FSIA. Id. And, like the act of state doctrine,

the Bancec test is routinely applied by lower courts.

See, e.g., Crystallex Int'l Corp. v. Bolivarian Republic

of Venezuela, 932 F.3d 126, 139 (3d Cir. 2019)

14

(describing Bancec doctrine as “a federal commonlaw outgrowth of [the FSIA]”).

For these reasons, the court of appeals’ ruling that

the executive alone has the power to decide issues of

federal common law with respect to foreign sovereign

immunity is incorrect.

D. The Recognition Power, the Claim Settlement

Power, and the Vesting Clause Do Not Apply

The court of appeals’ cursory sentence on

common-law immunity determinations did not

address

these

separation-of-powers

issues.

Respondent, for its part, argued below that its

“authority to make such determinations flows from its

responsibility for conducting the Nation’s foreign

relations.” Brief for United States at 48, United States

v. Türkiye Halk Bankasi A.Ş, 16 F.4th 336 (2021)

(No. 20-3499) (“U.S. App. Ct. Br.”). This sweeping

assertion does not comport with the Constitution’s

text nor the Nation’s history. The Constitution

provides the executive with significant powers related

to foreign policy, but confers no general, plenary

“foreign relations” power. And none of the President’s

discrete powers give him the authority to make

immunity determinations that bind courts.

For example, the Reception Clause–which

directs that the President “shall receive Ambassadors

and other public ministers,” U.S. Const. art. II, § 3–

does not authorize the executive to make domestic law

or decide specific federal cases. In Zivotofsky ex rel.

Zivotofsky v. Kerry, the Court found that the

Reception Clause (among other things) supported “a

logical and proper inference” that the executive also

15

has the sole “power to recognize other nations.” 576

U.S. 1, 12 (2015). But determining whether another

nation should be recognized is not the same as

determining the legal consequences that may flow

from recognition. Guar. Tr. Co. of N.Y. v. United

States, 304 U.S. 126, 138 (1938) (noting executive’s

“action in recognizing a foreign government . . . is

conclusive on all domestic courts, . . . although they

are free to draw for themselves its legal consequences

in litigations pending before them”). Notably, under

the FSIA, recognition by the President does not

automatically provide immunity to a recognized state,

nor does non-recognition mean that entity in question

is not a “state” for statutory purposes. See

Restatement (Fourth) § 452, reporters’ note 1.

Instead, courts examine independently whether the

entity qualifies as a “foreign state” under the statute

notwithstanding the President’s exclusive recognition

power. See Kirschenbaum v. 650 Fifth Ave. & Related

Properties, 830 F.3d 107, 123—25 (2d Cir. 2016)

abrogated on other grounds by Rubin v. Islamic

Republic of Iran, 138 S. Ct. 816 (2018).

Nor does the President’s claim-settlement power

provide the authority that Respondent asserts here.

“The Executive’s narrow and strictly limited authority

to settle international claims disputes” is simply that.

Medellin, 552 U.S. at 532. The claim-settlement

power “is a particularly longstanding practice . . . that

goes back over 200 years, and has received

congressional acquiescence throughout its history.”

Id. (quoting Am. Ins. Ass'n v. Garamendi, 539 U.S.

396, 415 (2003)). In contrast, the judiciary’s arguable

deference to executive immunity determinations only

16

began in the late 1930s (based on dicta) and ended in

1976 when, at the executive’s express request,

Congress adopted the FSIA. Although Congress

affirmed the executive’s power to settle claims in the

International Claims Settlement Act of 1949, 22

U.S.C. §§ 1621—1627, it has never similarly blessed

executive control of immunity decisions. To the

contrary, Congress enacted the FSIA to “remedy the

problem” of executive control over immunity. Opati v.

Republic of Sudan, 140 S. Ct. 1601, 1605 (2020). And

the Court in Medellin narrowly construed the claimsettlement power and declined to “stretch [it] so far as

to support” the executive’s attempt to make domestic

law. 552 U.S. at 532. It should do the same here.

Finally, the Vesting Clause–which generally

situates “[t]he executive Power” in the President, U.S.

Const. art. II, § 1–does not grant the executive

unilateral power to make domestic law even over

issues that arguably raise international concerns. See

Medellin, 552 U.S. at 529—30 (rejecting executive’s

argument that President’s “‘established role’ in

litigating foreign policy concerns” allows him to

“establish on his own federal law or to override state

law”); Saikrishna B. Prakash & Michael D.

Ramsey, The Executive Power Over Foreign Affairs,

111 Yale L.J. 231, 263 (2001) (“Lawmaking in support

of foreign affairs goals, then, is not part of the

President's residual power, and this allocation assures

that the President must often look to Congress as a

partner in foreign affairs endeavors.”).

The Constitution gives the President many

important powers related to foreign relations, but not

the power to decide cases and controversies or to

17

articulate rules of federal common law that bind

domestic courts. See Dodge & Keitner, supra, at 717

(“[I]n the U.S. constitutional system, the executive

branch does not make rules of federal common law;

federal courts do.”). Accordingly, this Court should

hold that the federal judiciary, not the executive, has

the final say over common-law immunity decisions.

II.

Federal Courts, Not the Executive, Have

Determined Foreign Sovereign Immunity Since

the Founding Era

Federal courts have a long history, reaching back

to the early days of the Republic, of resolving issues of

foreign state and foreign official immunity. That

history dates back at least to 1812, when this Court

comprehensively evaluated a foreign sovereign

immunity claim in its ruling in Schooner Exchange, 11

U.S. at 141—47. Chief Justice John Marshall wrote the

opinion, holding that federal courts lacked jurisdiction

over “a national armed vessel . . . of the emperor of

France.” Id. at 146. Courts applying the Schooner

Exchange decision interpreted it “as extending

virtually absolutely immunity to foreign sovereigns as

‘a matter of grace and comity.’” Samantar, 560 U.S. at

311 (quoting Verlinden, 461 U.S. at 486). Thus, for

“more than a century and a half,” the United States

usually “granted foreign sovereigns complete

immunity from suit in the courts of this country.”

Verlinden, 461 U.S. at 486.

During this period, courts welcomed the

executive’s views on immunity via filings called

“suggestions of immunity.”

Courts gave some

deference to the executive on limited “fact” issues such

18

as who owned the vessel in question, see Republic of

Mexico v. Hoffman, 324 U.S. 30, 32, 36 (1945), or

“whether the government was officially sovereign”–

issues that “did not resolve the immunity itself,”

G. Edward White, The Transformation of the

Constitutional Regime of Foreign Relations, 85 Va. L.

Rev. 1, 27 (1999). “In such cases courts regarded

themselves as free to decide the immunity issue as

they would any other issue of common law, basing

their judgments on domestic, maritime, and

international law principles.” Id. at 27—28; see also,

e.g., Berizzi Bros. Co. v. S.S. Pesaro, 271 U.S. 562

(1926) (granting immunity to foreign vessel despite

executive’s decision to decline immunity). In sum,

“nineteenth-century foreign sovereign immunity

decisions took as a given that courts could make

independent determinations on whether a foreign

sovereign was immune from suit in a particular set of

circumstances.” White, supra, at 134—35; see also

(Wuerth) Brunk, supra, at 924—25 (“Courts [during

that time] did not view themselves as bound by the

executive’s suggestion of immunity.”)

Furthermore, cases dating back to the 1790s show

that executive determinations on immunity claims by

foreign government officials also did not bind the

courts. Indeed, the executive expressly disclaimed the

ability to bind the judiciary in these circumstances.

See Chimène I. Keitner, The Forgotten History of

Foreign Official Immunity, 87 N.Y.U. L. Rev. 704,

713—49 (2012) (describing five eighteenth-century civil

suits in federal courts against “current or former

[foreign] officials” in which executive was “forced . . . to

19

manage [foreign] relationships by

explaining its inability to intervene”).

repeatedly

Not until the late 1930s did the practice begin to

shift toward more deference to the executive, a process

culminating in 1945 with the Court’s ruling in

Hoffman. In that case, the Court recognized that — as

shown by its ruling in Berizzi Brothers — it had not

always deferred to the executive’s immunity decisions,

but nevertheless found that “an important reason” to

deny immunity in the case at bar was “that the State

Department has declined to recognize it.” 324 U.S. at

35 n.1. The Court stated in dicta that “[i]t is therefore

not for the courts to deny an immunity which our

government has seen fit to allow, or to allow an

immunity on new grounds which the government has

not seen fit to recognize.” Id. at 35. Courts since the

Hoffman case have interpreted this dicta to mean that

the executive possessed exclusive power over

immunity determinations. See, e.g., Bank Markazi,

U.S. at 325 (quoting Hoffman, 324 U.S. at 35).

Contemporaneous scholarship from the period

confirms that the Court’s reasoning in Hoffman was

unprecedented.

See Philip C. Jessup, Has the

Supreme Court Abdicated One of Its Functions?, 40

Am. J. Int’l L. 168, 168—69 (1946) (arguing the Court

in Hoffman abdicated one of its functions by deferring

to executive instead of deciding immunity issues);

Note, The Jurisdictional Immunity of Foreign

Sovereigns, 63 Yale L.J. 1148, 1155 (1954) (describing

1938—45 as “period of transition” during which

executive’s views displaced “traditional criteria” for

immunity in federal courts); Note, Immunity from

Suit of Foreign Instrumentalities and Obligations, 50

20

Yale L.J. 1088, 1091—93 (1941) (describing courts’

confusion before Hoffman about what weight they

should accord executive’s suggestions of immunity).

In 1952, only seven years after Hoffman, “the

State Department announced its adoption of the

‘restrictive’ theory of foreign sovereign immunity,”

under which “immunity is confined to suits involving

the foreign sovereign’s public acts, and does not extend

to cases arising out of a foreign state’s strictly

commercial acts.” Verlinden, 461 U.S. at 487. “This

change threw ‘immunity determinations into some

disarray,’ because ‘political considerations sometimes

led the Department to file suggestions of immunity in

cases where immunity would not have been available

under the restrictive theory.’” Samantar, 560 U.S. at

312 (quoting Altmann, 541 U.S. at 690).

The

executive also effectively repudiated

Hoffman’s reasoning by recognizing as part of its new

policy in the 1952 Tate Letter that “a shift in policy by

the executive cannot control the courts.” Alfred

Dunhill, 425 U.S. at 714. As it turned out, the

Hoffman decision “embarrassed the Department of

State with responsibilities for which that agency of the

Government [was] quite unprepared and which it

[could not] properly assume.” Edwin D. Dickinson,

The Law of Nations as National Law: “Political

Questions”, 104 U. Pa. L. Rev. 451, 477 (1956); see also

Opati, 140 S. Ct. at 1605.

In 1976, Congress endorsed the executive’s post-

Hoffman position when — at the State Department’s

request — it enacted the FSIA. This Court has

repeatedly noted that the purpose of the statute was

21

“to free the Government from the case-by-case

diplomatic pressures, to clarify governing standards,

and to assure litigants that decisions are made on

purely legal grounds and under procedures that insure

due process.” Verlinden, 461 U.S. at 488 (cleaned up);

see also Opati, 140 S. Ct. at 1605 (noting “Congress

sought to remedy the problem” of leaving immunity

determinations to the executive by adopting the

FSIA). The FSIA “sets out immunity standards

applicable to foreign states and their agencies,

effectively eliminating the role of the State

Department in cases covered by the statute.”

(Wuerth) Brunk, supra, at 927. The FSIA did not

occupy the field, however, because suits “may still be

barred by foreign sovereign immunity under the

common law.” Samantar, 560 U.S. at 324.

The long history of the common law of foreign

sovereign immunity — from its origins in Schooner

Exchange through enactment of the FSIA — further

demonstrates that federal courts have had, and still

have, the ultimate responsibility to decide whether

foreign sovereign immunity applies to a given case.

The Hoffman and Ex Parte Peru Cases Should

Not Be Applied Here

The executive argued to the court of appeals that

it has binding authority over common-law immunity

decisions based on two World War II-era admiralty

cases involving judicial seizures of foreign government

vessels: Hoffman and Ex parte Republic of Peru, 318

U.S. 578 (1943). U.S. App. Ct. Br. at 47—50. In both

of these decisions, the Court stated in dicta that

federal courts must follow the executive’s legal

principles regarding immunity determinations as well

III.

22

as its immunity decisions in specific cases, even when

the executive does not take a position on whether

immunity is warranted. The Court should not follow

either case here, for at least three reasons.

First, neither Hoffman nor Peru applies. The

language in Hoffman affording law-making power to

the executive was dicta. Hoffman involved an in rem

action against a vessel owned by the Mexican

government but “in ‘the possession, operation, and

control’” of a private company. 324 U.S. at 32—33. The

executive did not opine on whether the Mexican vessel

was entitled to immunity. The Court noted the

executive’s silence on the ultimate question of

immunity, id. at 32, which it found “controlling in the

present circumstances” as indicative of a “national

policy not to extend immunity” to vessels owned but

not possessed by foreign states, id. at 38. But the

Court also held that “it is plain that the distinction

[between ownership and possession] is supported by

the overwhelming weight of authority.” Id. That

alternative authority by itself provided adequate

grounds for the Court’s decision.

In Peru, the Court reasoned that the executive

sought immunity because it had apparently already

resolved the case through its claim-settlement power.

318 U.S. at 586—88. The Court reasoned that, when

the Secretary of State elects “to settle claims against

the vessel by diplomatic negotiations between the two

countries rather than by continued litigation,” the

Court must accept that settlement and “the plaintiff is

entitled to the relief obtained through negotiations.”

Id. at 587. Those considerations are not present in

23

this case, which has nothing to do with the claim

settlement of civil admiralty cases.

Second, the foundations of both cases have been

deeply undercut. A primary concern animating both

decisions was the possibility that, absent deference,

the judiciary might “embarrass the executive arm in

its conduct of foreign affairs.” Hoffman, 324 U.S. at

35; Peru, 318 U.S. at 588 (same). This Court explicitly

rejected “embarrassment” as a basis for unilateral

executive control of the act of state doctrine.

Kirkpatrick, 493 U.S. at 409. In any event, the

embarrassment concern sweeps far too broadly as a

basis to award the executive sole constitutional power

to make law and intervene to decide specific cases. It

would mean that the Court has incorrectly decided

subsequent cases in which it limited executive power

despite the potential to embarrass the President,

including (for example) Youngstown, Medellin, Hamdi

v. Rumsfeld, 542 U.S. 507 (2004), and Hamdan v.

Rumsfeld, 548 U.S. 557 (2006).

The context for immunity determinations has also

changed, further undercutting the contemporary

significance of the two cases. The Court’s decision in

Hoffman came only a few years after United States v.

Curtiss-Wright Export Corp., 299 U.S. 304 (1936),

which advanced an expansive concept of executive

power in foreign relations. But the Curtiss-Wright

case has come under intense criticism and its

approach to executive power has been eroded — if not

repudiated — by Youngstown and other more recent

cases. In Zivotofksy, for example, this Court noted

that despite the broad language in Curtiss-Wright

about executive power the holding dealt only with

24

“congressionally authorized action, not a unilateral

Presidential determination” and that “whether the

realm is foreign or domestic, it is still the Legislative

Branch, not the Executive Branch, that makes the

law.” 576 U.S. at 21; see also id. at 66 (Roberts, C.J.,

dissenting) (noting “the expansive language

in Curtiss—Wright casting the President as the ‘sole

organ’ of the Nation” has been limited by subsequent

cases such as Medellin); see generally, Curtis A.

Bradley, The Treaty Power and American Federalism,

97 Mich. L. Rev. 390, 438 (1998) (describing withering

criticism of Curtiss-Wright); Ganesh Sitaraman &

Ingrid (Wuerth) Brunk, The Normalization of Foreign

Relations Law, 128 Harv. L. Rev. 1897, 1918 (2015)

(describing how executive power flourished in the

years following Curtiss-Wright, including in cases like

Korematsu v. United States, 323 U.S. 214 (1944), but

that the Court takes a different approach today).

Third,

the

Court’s language on executive

deference in Peru and Hoffman was sparse and vague.

Although those cases suggested the executive could

act alone to determine foreign sovereign immunity

without statutory authorization, they included little

reasoning or analysis.

As described above, the

executive lacks power under basic separation-ofpowers doctrine to make domestic law, and there is no

unbroken historical practice showing that the

executive controlled immunity decisions.

See

Section I.C, supra. The lack of constitutional analysis

makes these two cases unpersuasive.

The absence of analysis also makes it difficult to

evaluate the extent to which the Court ever intended

Hoffman and Peru to apply outside of admiralty. In

25

both cases, the Court noted the potential implications

of judicial seizures of foreign government vessels,

Hoffman, 324 U.S. at 34; Peru, 318 U.S. at 588, a

concern that is not at issue in this case. With the

decisions containing no real constitutional analysis,

they provide weak support at best for any claim that

the executive has plenary authority over common-law

immunity decisions in any and all future cases that

may arise in unrelated contexts.

If necessary, the Court should explicitly overrule

the executive-control language in Hoffman and Peru.

“[S]tare decisis is ‘not an inexorable command,’” Janus

v. Am. Fed’n of State, Cnty., & Mun. Emps., Council

31, 138 S. Ct. 2448, 2478 (2018) (quoting Pearson v.

Callahan, 555 U.S. 223, 233 (2009)), and “is at its

weakest when [the Court] interpret[s] the

Constitution,” id. (quoting Agostini v. Felton, 521 U.S.

203, 235 (1997)). None of the factors apply that might

support stare decisis for the Hoffman or Peru

decisions. See id. at 2478—79. The quality of their

reasoning is low; neither contains much reasoning at

all. Their workability is suspect; even the State

Department advocated for the FSIA on the basis that

the judiciary was better positioned than the executive

to determine foreign sovereign immunity. They are no

longer consistent with this Court’s jurisprudence, as

shown by the Samantar ruling that the FSIA governs

immunity for foreign states while the common law

covers all else. The law of foreign sovereign immunity

has significantly developed since the Court decided

both cases. And reliance interests are minimal; the

Court has not applied the reasoning in either case to

grant or deny immunity in over seventy years. Stare

26

decisis thus should not compel adherence to the dicta

in either Hoffman or Peru.

IV.

Federal Courts, Not the Executive, Are Best

Equipped to Make Immunity Determinations

In addition to the constitutional and historical

arguments in favor of federal courts deciding

immunity, there is also a compelling functional

argument. As demonstrated by the historical practice

and development of foreign sovereign immunity,

courts are both experienced with immunity claims and

better equipped than prosecutors to determine

whether to grant them. There is little debate over the

point; Congress and the State Department expressly

agreed in the lead-up to the enactment of FSIA that

courts were superior.

The executive does, of course, have constitutional

powers related to foreign affairs, some of which play

an important role in immunity cases. The President,

for example, has unreviewable authority to recognize

foreign governments. He decides who is a sitting head

of state–a determination that almost invariably leads

to an entitlement to status-based immunity. (Wuerth)

Brunk, supra, at 971—75; Dodge & Keitner, supra, at

711. The executive is also better positioned than

courts in many instances to determine the desirable

content of customary international law, and courts

developing and applying common-law immunity

should afford deference to the executive’s views on

that issue. (Wuerth) Brunk, supra, at 971; Dodge &

Keitner, supra, at 711—12. As discussed above, the

executive may also be entitled to deference on factual

questions about which it has superior information,

27

such as who owns a particular foreign vessel or who

controls a particular foreign corporation.

But such powers are limited, and with good

reason. The executive is poorly positioned to make

final immunity determinations that bind the courts.

That is true for myriad reasons, as shown by the brief

period when courts deferred to executive immunity

decisions.

Foreign governments pressured the

executive, sometimes successfully, to resolve cases in

their favor, even if the law was against them. See To

Define the Jurisdiction of U.S. Courts in Suits Against

Foreign States: Hearing on H.R. 11315 Before the

Subcomm. on Admin. Law & Governmental Relations

of the H. Comm. on the Judiciary, 94th Cong. 34—35

(1976) (statement of Monroe Leigh, Legal Adviser,

Department

of

State)

(“Leigh

Statement”)

(articulating why executive control over immunity

claims produced “substantial disadvantages”). The

executive sometimes made inconsistent immunity

determinations not aligned with its overall policy. Id.

at 59—60 (statement of Peter Trooboff, Attorney,

Covington

&

Burling,

Washington,

D.C.).

“Complicating matters further, when foreign nations

failed to request immunity,” or the executive failed to

act on the request, courts were left with little guidance

and “‘governing standards were neither clear nor

uniformly applied.’” Altmann, 541 U.S. at 690—91

(quoting Verlinden, 461 U.S. at 487—88). Executive

control resulted in unfair, inconsistent, and

unpredictable outcomes, especially because plaintiffs

often had little or no influence in executive immunity

decisions. See Leigh Statement at 34 (“[W]e in the

Department of State and Legal Advisor’s Office do not

have the means of really conducting a quasi-judicial

28

hearing to determine whether, as a matter of

international law, immunity should be granted in a

given case.”). In short, “the old executive-driven,

factor-intensive, loosely common-law-based immunity

regime” that existed for immunity decisions before the

FSIA was “bedlam.” Republic of Argentina v. NML

Cap., Ltd., 573 U.S. 134, 141 (2014).

Deference

to

the

executive’s

immunity

determinations created a seriously flawed system

without constitutional, prudential, or functional

support–a system that the Court should not re-create

today. The Court should instead hold that the

judiciary has the power and obligation to develop the

common law of foreign sovereign immunity and make

case-specific immunity decisions, which courts should

do by considering applicable statutes, relevant

international law, and — for certain discrete issues —

the opinions of the executive. See (Wuerth) Brunk,

supra at 967—75 (describing “how the courts should

make immunity determinations pursuant to federal

common law”); see also, e.g., Samantar, 560 U.S.

at 320 (examining “international practice when

interpreting the [FSIA]”).

To hold otherwise — that the executive has

exclusive power over common-law immunity decisions

— would violate basic separation-of-powers principles,

impose needless and unwelcome pressure on the

executive, confuse courts, and create profound

uncertainty and unfairness for parties raising or

opposing claims of foreign sovereign immunity under

the common law.

29

CONCLUSION

The court of appeals’ ruling that the executive

possesses exclusive power over common-law foreign

sovereign immunity decisions should be reversed.

Respectfully submitted,

INGRID (WUERTH) BRUNK

VANDERBILT UNIVERSITY

LAW SCHOOL

131 21st Avenue South

Nashville, TN 37203

William S. Dodge

UNIVERSITY OF

CALIFORNIA, DAVIS,

SCHOOL OF LAW

400 Mrak Hall Drive

Davis, CA 95616

November 21, 2022

BARRETT J. ANDERSON

Counsel of Record

COOLEY LLP

10265 Science Center Drive

San Diego, CA 92121

(858) 550-6000

banderson@cooley.com

Adam Gershenson

COOLEY LLP

500 Boylston Street

Boston, MA 02116