Amicus Curiae Brief — Roeder, Individually and on Behalf of All Others Similarly Situated v. Islamic Republic of Iran

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No. 03-1147

“OTION FILED °

mat | 2 2004 In The

Supreme Court of the Gnited States

y 2

t

DAVID ROEDER, et al.,

Petitioners,

v.

ISLAMIC REPUBLIC OF IRAN, et al.,

Respondents.

S

v

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

4

Vv

MOTION FOR LEAVE TO FILE AMICUS CURIAE

BRIEF AND BRIEF OF SENATORS GEORGE

ALLEN, TOM HARKIN, ERNEST F. HOLLINGS

AND RICHARD C. SHELBY AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

,

Vv

A. CAMDEN LEWIS

LEWIS, BABCOCK & HAWKINS, L.L.P.

Attorney for Amici Curiae

1513 Hampton Street

Columbia, South Carolina 29211

(803) 771-8000

May 12, 2004

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

a =

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF

Statement of Facts

Senators George Allen, Tom Harkin, Ernest F. Holl-

ings and Richard C. Shelby (Collectively “The Senators”),

by and through counsel and pursuant to Rule 37.3(b),

hereby file their Motion for Leave to file Amicus Curiae

Brief in this case. In support of their motion, amici make

the following showing: .

Pursuant to Rule 37(a), by letter dated March 30,

2004, amici sought written consent from Counsel of Record

for Petitioner and Respondent. Petitioner’s Counsel and

Counsel for the Respondent the United States of America

granted consent. Consent from the Islamic Republic of

Iran has not been granted. The Senators’ brief is being

filed timely.

Nature of Interest

As members of the United States Senate, amici have a

strong interest in the preservation of the Constitution’s

“single, finely wrought and exhaustively considered,

procedure” for making laws. INS v. Chadha, 462 U.S. 919,

951, 103 S.Ct. 2764, 2784 (1983). In this action, the Dis-

trict of Columbia Court of Appeals applied a “clear state-

ment” rule in determining whether a Law passed by

Congress and signed by the President abrogated an

unratified executive agreement. This test raises separa-

tion of powers issues and creates a check on Congress’

legislative powers not delegated by the Constitution.

Accordingly, the outcome of this case will have a direct

impact on the Senators.

7

The Senators respectfully submit that their Motion For

Leave to File Amicus Curiae Brief should be granted.

LEWIS, BABCOCK & HAWKINS, L.L.P.

A. CAMDEN LEWIS

1513 Hampton Street

Post Office Box 11208

Columbia, South Carolina 29211

(803) 771-8000

Attorney for Amici Curiae

Columbia, South Carolina

May 12, 2004

HF LRP RPT ONE SN

QUESTIONS PRESENTED

1. Does the “clear statement” rule for the abrogation of an

unratified executive agreement violate the separation

of powers doctrine?

2. Does the application of the “clear statement” rule

frustrate Congress’ clearly expressed intent to allow

this suit to proceed?

SURES mn ra, tine gn SEE — =

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED o....cccssccsssscccssssessssecessseeesen i

TABLE OF CONTENTS ....cccscccssscscssseccsssecccssscecsseceeesse ii

TABLE OF AUTHORITIES ....-.cccccssccsssssecssssesesseesssseeee iii

INTERESTS OF AMICI CURIAE..e-ssscccssscccsssesesssecsesse 1

STATEMENT OF FACTS.....ccscccccsssccccssecccsssscesssssessessee 1

SUMMARY OF ARGUMENT? oo.-ccccsccscccssssccssssescssecesssve 3

MIUTORMEIEY ics csiccplocscsvevscdesscadnsictuisseessavinenincis 4

I. Application of the Clear Statement Rule in

this Context Violates the Separation of Powers

I sicissvuhescsdusniacinssksetetpicanmuanictaiondtonadniesiiins

II. Congress Clearly Expressed the Intent to

Allow this Suit Notwithstanding Any Other

Authority Including the Algiers Accords ...........

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5 OE are .

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TABLE OF AUTHORITIES

Page

CASES

Bowsher v. Synar, 478 U.S. 714 (1986).........cccccssccscccceceeeees 8

Buckley v. Valeo, 424 U.S. 1 (1976) ............ccocccsssssosccossesscees 5

Church of the Holy Trinity v. United States, 143

SA SABG COME kcovscinseihtsnesaiacse tread sneer ie 11

Clinton v. City of New York, 524 U.S. 417 (1998) ............... 9

Cronin v. Islamic Republic of Iran, 238 F.Supp.2d

ee CaP A. BPE ksvxisinisseauadecotcsmacers eatin 2

Dames & Moore v. Regan, 453 U.S. 654 (1981) .......cccccccceee 7

Flatow v. Islamic Republic of Iran, 999 F.Supp. 1

CERES: TOP viishsciasvesuessuaandicae sae 2

Havana Club Holding, S.A. v. Galleon S.A., 203

FO TE6 TR Ce Fe hibiistsiiitincee 6

Holloway v. U.S., 526 U.S. 1 (1999)... ceecceseceesseeeseees 11

INS v. Chadha, 462 U.S. 919 (1983)... cece ceceessceeeees 1,7

Metropolitan Washington Airports Authority v.

Citizens for Abatement of Aircraft Noise, Inc., 501

CFR: SNe USD vvsstinsvinnnpiissnsiesda bie cacumenmaneeeaanae a 5

Morrison v. Olson, 487 U.S. 654 (1988) ........ccccccccceceeceeeceee 5

Myers v. United States, 272 U.S. 52 (1926)...0....cccceeeccseeeees 4

Roeder v. Islamic Republic of Iran, 195 F.Supp.2d

340 CDAD, Se cistitcicitted deans 2

Tennessee Valley Authority v. Hill, 437 U.S. 153

TABLE OF AUTHORITIES — Continued

Page

Touby v. O.5., GOD UB. TOO CEG B I) vccssssresiisecssscnsensnisrcesoneoanvs 5

Trans World Airlines, Inc. v. Franklin Mint Corp.,

_ 466 ans - PU CINE scincsctnsceen bhatipviicann eekenmnienpememedemacetnanins 4

CONSTITUTIONAL PROVISIONS

Reset I, FARE Fh eisnicsesescnsncuiolaraneaeavacnccesebedeiritaaecinlaasintn 6

Se NE NE BO}. vcesseshcacinits asomntadsdeiaaavankiarens 5

ys Coes. AE: 4, OEE @ Asstt een 5

U2. Comet. Art. b SOG Tisicsisistinariainnenccenes 5

77.0, Cenk: Bat. 5. oe cceunhessrreicichacomeereiceaiiowucnn 9

US. Commh. Ast. Th, 0 Oy eS mtcetiniconeeatacsonesnten 7

U.S. Comsat, Art. Vio..cecscescsorsssnvessssnsnessnvatsonnsseveresesavesussvenss 9

STATUTES AND LEGISLATIVE MATERIALS ~

Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 113 Stat. 1501 (codi-

fied wt SSB Ul. GEOGURGI GD) vicecsssevvnneccavanvesenesansensbas a Si

Department of Commerce, Justice, and State, the

Judiciary and Related Agencies Appropriations

Act, 2002 Pub. L. No. 107-77, 115 Stat. 748

CUED. BE) Le vtctnssitcsicstarrsncns hekuasaatesns 2

Department of Defense and Emergency Supple-

mental Appropriations for Recovery from and

Response to Terrorist Attacks on the United

States Act, Pub. L. No. 107-117, 115 Stat. 2230

CID vo vaieniniserriccsenrasssnenanssedteiaassialenmamanana aaa 2

H.R. Conf. Rep. No. 107-350 (2001) ...... eee eeeeeeeeees 11

H.R. Conf. Rep. No. 278 (2001) .......ccccssscsecssscssvnssecesszesnese 10

ane ELE ELIT COLLIE LOLS REE

TABLE OF AUTHORITIES — Continued

MISCELLANEOUS

Allison Taylor, Another Front in the War on Terror-

ism? Problems with Recent Changes to the For-

eign Soverign Immunities Act, 45 Ariz. L. Rev.

533, 534 (2003)

The Federalist Papers No. 47 (James Madison)

The Federalist Papers No. 48 (James Madison)

The Federalist Papers No. 49 (James Madison)

Joel R. Paul, The Geopolitical Constitution: Execu-

tive Expediency and Executive Agreements, 86

Cal. L. Rev. 671 (1998)

Treaties in Force: A List of Treaties and Other

International Agreements of the United States in

Force on Jan. 1, 2003

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SOROS EHTS EEE EEH HEHEHE EEE HEHE EEE EEEHES

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Page

INTERESTS OF AMICI CURIAE’

The United States Constitution vests legislative

responsibility in a bicameral Congress and requires that

laws passed by Congress and signed by the President are

the supreme law of the land. A judicially created test

requiring Congress to expressly address the hundreds of

unratified executive agreements before passing a compre-

hensive law upsets this careful allocation of authority by

granting the President an ability to limit the scope of

legislation beyond that delegated by the Constitution. As

members of the United States Senate, amici have a strong

interest in the preservation of the Constitution’s “single,

finely wrought and exhaustively considered, procedure” for

making laws. INS v. Chadha, 462 U.S. 919, 951 (1983).

¢

STATEMENT OF THE FACTS

The Islamic Republic of Iran is a terrorist state that in

1979 kidnapped and tortured American citizens for 444

days. The United States Congress has repeatedly ex-

pressed the desire to allow suits against the Islamic

Republic of Iran for its sponsorship of terrorism and for

committing these egregious acts.

1 A Motion to File an Amicus Brief is being filed simultaneously

with this brief. The Office of the Solicitor General has consented to the

filing of this brief by letter dated April 2, 2003. Consent for amicus

briefs has not been obtained from the Islamic Republic of Iran. Counsel

for Petitioners provided a copy of their Petition to Amici Curiae. No

other person or entity authored this brief in whole or in part and no

person or entity other than the Amici or their counsel made a monetary

contribution to the preparation or submission of this brief.

~~

2

Congress expressed this desire on at least four occa-

sions. First, Congress passed the Antiterrorism Act in

1996 waiving sovereign immunity for terrorist acts spon-

sored by countries on the U.S. State Department's list of

state sponsors of terrorism. Pub. L. No. 104-132 (codified at

28 U.S.C. § 1605(a)(7)) (Iran has appeared on the State

Department’s list since 1984). Roeder v. Islamic Republic

of Iran, 195 F.Supp.2d 140, 160 (D.D.C. 2002). Second, the

Flatow Amendment, named for a suit against the Islamic

Republic of Iran, was passed in 1998 to provide redress for

those victimized by Iran. See Antiterrorism Act at

§ 1605(e)(7); See Flatow v. Islamic Republic of Iran, 999

F.Supp. 1 (D.D.C. 1999); See also Cronin v. Islamic Repub-

lic of Iran, 238 F.Supp.2d 222, 231 (D.D.C. 2002). In

November 2001, Congress acted a third time and amended

the Foreign Sovereign Immunity Act (“FSIA”) to allow this

specific suit to go forward, following at the District Court

the United States’ attempt to vacate the judgment on

liability in favor of Plaintiffs. See H.R. 2500, 107th Cong.,

1st Sess., the 2002 Appropriations Act for the Departments

of Commerce, Justice, and State, the Judiciary. Pub. L. No.

107-77, 115 Stat. 748 (2001). In December 2001, not

satisfied with these expressions alone, Congress acted a

fourth time and amended a technical error in citing this

suit’s civil action number. See Department of Defense and

Emergency Supplemental Appropriations Act, Pub. L. No.

107-117, 115 Stat. 2230 (amending Pub. L. No. 107-77 by

striking ‘1:00CV03110 (ESG)’ and inserting ‘1:00CV03110

(EGS)’). Despite these repeated and specific expressions by

Congress, the United States Court of Appeals for the District

of Columbia Circuit held that the suit was barred because

Congress failed to expressly renounce the Algiers Accords,

an unratified executive agreement signed by President

"

Carter in 1979 preventing suits against Iran arising from

the hostage crises.

*

SUMMARY OF ARGUMENT

1. The Court of Appeals’ application of the “clear state-

ment” rule in this context frustrates the purpose behind

separating the powers of government in the Constitution.

Under the D.C. Circuit’s unprecedented test, an executive

agreement limits the field upon which Congress can

legislate unless Congress expressly recites an intention to

abdicate each individual executive agreement. This power

goes beyond the Executive’s Constitutional role and

violates the intricate balance of power intended by the

Founding Fathers.

2. Congress specifically acted in 2001 on two occasions

with the intent of allowing this suit to go forward in order

: to compensate the victims of the Islamic Republic of Iran’s

terrorism. The specificity of the Amendments passed by

| Congress and their accompanying legislative history

clearly reflect this intent. Despite this clear intent, the

Court of Appeals wrongly gave a restrictive interpretation

of this legislation leading to an unreasonable result not in

accord with Congressional intent.

¢

4

ARGUMENT

I. APPLICATION OF THE CLEAR STATEMENT

RULE IN THIS CONTEXT VIOLATES THE

SEPARATION OF POWERS DOCTRINE

The separation of powers in our government is a

“sacred” principle that was deliberately implemented into

the Constitution by the Founding Fathers. Myers v. U.S.,

272 U.S. 52, 116 (1926) quoting James Madison, 1 Annals

of Congress, 581. A judicially created test which permits

the Executive to unilaterally limit the authority of Con-

gress to legislate is a serious erosion of Congressional

authority and a distortion of the “sacred” balance en-

shrined in our Constitution.

The Court of Appeals below erroneously applied a

“clear statement” rule in determining whether acts of

Congress abrogated an unratified executive agreement.

Under the “clear statement” rule adopted by the D.C.

Court; a law passed by Congress and signed by the Presi-

dent can not abrogate an earlier executive action unless

Congress clearly expresses the intention to overrule the

executive action. Tennessee Valley Authority v. Hill, 437

U.S. 153, 190 (1978). The rationale for this rule flows from

the canon of disfavoring repeals by implication, and such a

canon is properly invoked when dealing with subsequent

enacted Treaties or acts of Congress. See Id., 437 U.S. at

190 (applying clear statement rule when analyzing two

acts of Congress); See also Trans World Airlines, Inc. v.

Franklin Mint Corp., 466 U.S. 243, 252 (1984) (comparing

a treaty with subsequent enacted legislation).

Application of the “clear statement” rule in examining

an unratified executive agreement, however, violates the

separation of powers doctrine by allowing the executive

5

branch to limit the scope and impact of Congress’ power to

legislate. See Buckley v. Valeo, 424 U.S. 1 (1976); Morrison

v. Olson, 487 U.S. 654, 693 (1988). In effect, unless Con-

gress specifically renounces a given executive agreement,

Federal Courts must presume the legislation was not

intended to be comprehensive. This limitation is worse

than a simple preemption of a field because under this

analysis Congress has to affirmatively act in order to avoid

the limitation. This check on Congress’ power to legislate

violates the separation of powers carefully allocated in our

Constitution. Congress is the only branch of our govern-

ment with the power to legislate. The first provision in the

Constitution provides:

All legislative Powers herein granted shall be

vested in a Congress of the United States, which

shall consist of a Senate and a House of Repre-

sentatives.

U.S. Const. Art. I, § 1. This power is broad and all inclu-

sive. See U.S. Const. Art. I, § 9, cl. 18 granting Congress

authority:

[tlo make all Laws which shall be necessary and

proper for carrying into Execution the foregoing

Powers, and all other Powers vested by this Con-

stitution in the Government of the United States,

or any Department or Officer thereof.

Significantly, Congress has the power “[t]o regulate Com-

merce with foreign Nations.... ” See U.S. Const. Art. I,

§ 8, cl. 3. Congress’ power in this field is exclusive and

cannot be delegated to another branch. Touby v. U.S., 500

U.S. 160, 165 (1991). Nor can this power be unilaterally

usurped by another branch. See Metropolitan Washington

Airports Authority v. Citizens for Abatement of Aircraft

Noise, Inc., 501 U.S. 252, 273 (1991).

6

Congress should not be “required to investigate the

array of international agreements that arguably provide

some protection that it wishes to annul and then assemble

a check-list reciting each one.” Havana Club Holding, S.A.

v. Galleon S.A., 203 F.3d 116, 124 (2nd Cir. 2000). The

United States literally has hundreds of unratified execu-

tive agreements in effect. See Treaties in Force: A List of

Treaties and Other International Agreements of the

United States in Force on Jan. 1, 2003 (compiled by Office

of Legal Advisor, U.S. Department of State). These agree-

ments touch on an incredibly wide variety of issues from

the biological control of the Aedus Aegyph-mosquito in

Brazil to regulation of satellite transmissions. Jd. Execu-

tive agreements exist both with foreign states as well as

trade organizations like The Group of Eight and the World

Trade Association. Jd. With increasing prevalence, these

agreements address matters of domestic importance, and

the majority impact commerce with foreign nations — an

area of legislative prerogative.” These are clearly areas

where the Founding Fathers said Congress had the final

say. U.S. Const. Art. I.”

? Under the D.C. Circuit’s interpretation an agreement negotiated

by a functionary at the World Trade Organization and another func-

tionary in the executive branch would trump an act of Congress. Surely

this was not the intent of the founding fathers.

* Significantly, Amici Curiae do not maintain that the executive

can not enter into an agreement with a trade association or another

country without Congressional approval. Instead, Amici Curiae simply

maintain that an executive agreement that has not been ratified by the

Legislature should not later be interpreted as a check on Congress’

powers.

The “clear statement” rule when properly restricted to

treaties and laws does not violate the separation of powers

doctrine because both of these items receive legislative

approval. Before becoming law, an act of Congress. re-

quires, at a minimum, approval by a majority of both the

House of Representatives and the Senate. Likewise, a

treaty requires the advice and consent of a super majority

vote in the Senate. U.S. Const. Art. II, § 2, cl. 2. An execu-

tive agreement on the other hand receives no review and

does not go through either door of Congress. Such an

agreement neither originates in either house of Congress,

nor is presented to Congress for its review. This Court has

held that the requisites of bicameralism and presentment

are unwaivable. Chadha, 462 U.S. at 458. This absence of

Congressional review necessarily requires that an unrati-

fied executive agreement be treated with less deference."

Legislative review and approval gives further credibil-

ity to Treaties and Laws and ensures a democratic impri-

matur of their terms. This process allows for vast

constituencies to participate in an open debate on the

merits of a particular item, as opposed to an executive

agreement which is normally passed in non-public meet-

ings. See Joel R. Paul, The Geopolitical Constitution:

Executive Expediency and Executive Agreements, 86 Cal. L.

Rev. 671, 723-724 (1998) (“Senate proceedings are open

and public, whereas the process of foreign policy-making

by the executive is generally secret.”). As James Madison

observed in The Federalist No. 49, Congress is uniquely

‘ The silent approval of executive action relied upon in Dames &

Moore v. Regan, 453 U.S. 654, 685 (1981) is not present in this case.

Congress has repeatedly voiced its opinion on this matter.

8

positioned to best serve and represent the American people

in this debate because:

The members of the legislature, on the other

hand, are numerous. They are distributed and

dwell among the people at large. Their connex-

ions of blood, of friendship, and of acquaintance,

embrace a great proportion of the most influen-

tial part of the society. The nature of their public

trust implies a personal influence among the

people, and that they are most immediately the

confidential guardians of their rights and liber-

ties.

The Federalist No. 49 (James Madison).

The Founding Fathers clearly recognized Congress’

unique position in facilitating a national debate and

structured the Constitution to allow for this review. See

Bowsher v. Synar, 478 U.S. 714, 722 (1986) (“[T]his system

of division and separation of powers” was “deliberately so

structured to assure full, vigorous, and open debate on the

great issues affecting the people and to provide avenues

for the operation of checks on the exercise of governmental

power.” (internal citations omitted)). By treating an

executive agreement as the equivalent of a treaty or a law

and applying the “clear statement” rule in this context, the

Court of Appeals allows the executive branch to circum-

vent this important debate and limit the scope of Congress’

powers.”

* The plain language of the Supremacy Clause demonstrates that

executive agreements should be treated as an inferior source of

authority in comparison to treaties and laws:

(Continued on following page)

9

Furthermore, this Executive check on the breadth of

Congress’ legislative powers robs the American people of a

fundamental protection of liberty. As stated by Justice

Kennedy’s concurrence in Clinton v. City of New York:

Liberty is always at stake when one or more of

the branches seek to transgress the separation of

powers. Separation of powers was designed to

implement a fundamental insight: Concentration

of power in the hands of a single branch is a

threat to liberty.

524 U.S. 417, 450 (1998). This principle is equally empha-

sized in the Federalist papers: :

The accumulation of all powers, legislative, ex-

ecutive, and judiciary, in the same hands,

whether of one, a few, or many, and whether he-

reditary, self-appointed, or elective, may justly be

pronounced as the very definition of tyranny....

[T]he preservation of liberty requires, that the

three great departments of power should be

separate and distinct.

The Federalist No. 47 (James Madison).

It is agreed on all sides, that the powers prop-

erly belonging to one of the departments, ought

not to be directly and completely administered

This Constitution, and the Laws of the United States which

shall be made in Pursuance thereof; and all Treaties made,

or which shall be made, under the Authority of the United

States, shall be the supreme Law of the Land....

U.S. Const. Art. VI. This reading is supported by the use of the terms

agreements and compacts elsewhere in the text. See e.g., U.S. Const.

Art. I, § 10.

10

by either of the other departments. It is equally

evident, that neither of them ought to possess,

directly or indirectly, an overruling influence

over the others in the administration of their re-

spective powers.

The Federalist No. 48 (James Madison). The Court of

Appeals’ application of the “clear statement” -rule in this

context makes Madison’s fear of one branch exerting an

overruling influence over another’s administration of

powers a reality.

Accordingly, the “clear statement” rule is an inappro-

priate test in evaluating whether an act of Congress

signed into law by the President trumps an unratified

executive agreement. Such a burden on Congress gives the

President the ability to limit Congress’ constitutionally

endowed legislative powers, and violates the separation of

powers doctrine.

II. CONGRESS CLEARLY EXPRESSED THE INTENT

TO ALLOW THIS SUIT NOTWITHSTANDING ANY

OTHER AUTHORITY INCLUDING THE ALGIERS

ACCORDS

Congress clearly intended for the 2001 amendments to

allow this particular suit to proceed notwithstanding the

Algiers Accords. The November 2001 Amendment clarified

that the Islamic Republic of Iran’s sovereign immunity

was abrogated by specifically referencing this suit’s civil

action number. See H.R. Conf. Rep. No. 278, 107th Cong.,

lst Sess. At 170. Within two months, Congress again

articulated its position by the Amendment in December

2001. The Joint Explanatory Statement provided with the

December Amendment states:

OEE ESTER SE os TY eae

11

[Nlotwithstanding any other authority, the

American citizens who were taken hostage by the

Islamic Republic of Iran in 1979 have a claim

against Iran under the Antiterrorism Act of 1996

and the provision specifically allows the judg-

ment to stand for purposes of award dam-

ages....

- H.R. Conf. Rep. No. 107-350 at 422-423 (emphasis added).

Clearly, these Amendments evidence an intent by Con-

gress to allow Plaintiffs, as victims of terror, to receive

compensation from the Islamic Republic of Iran “notwith-

standing any other authority.”

The Amendments were added to the text of the anti-

terrorism provisions of the FSIA and accordingly should be

interpreted to be consistent with their intended purpose.

See Holloway v. U.S., 526 U.S. 1 (1999) (statute should be

interpreted in consonance with the provisions of the whole

law). Congress’ intent of allowing this suit to proceed is

consistent with the dual purposes behind the 1996 Anti-

terrorism and Effective Death Penalty Act Amendments to

the FSIA of punishing countries that sponsor terrorism

and providing compensation to their victims. See Allison

Taylor, Another Front in the War on Terrorism? Problems

with Recent Changes to the FSIA, 45 Ariz. L. Rev. 533, 534

(2003). When the 2001 Amendments are viewed in light of

this intent, it becomes clear that the 2001 Amendments

should be interpreted as intending to allow this suit,

notwithstanding any other authority — including the

Algiers Accords. The interpretation proffered by the Court

of Appeals that Congress intended only to waive sovereign

immunity subject to the Algiers Accords has no basis in

fact and is, quite simply, wrong. See, e.g., Church of the

Holy Trinity v. United States, 143 U.S. 457, 459 (1892)

aaa aaa i i

12

(statutes should not be interpreted in a manner leading to

an unreasonable result inconsistent with the spirit and

intention of its makers).

4

CONCLUSION

Under the Constitution, there are only two permissi- :

ble checks on Congress’ legislative powers. First, the

Executive is given a veto power by which it may remand a

bill to Congress for further review. The second check is

inherent in the Supreme Court which may review a law

and determine its constitutionality. Application of the

“clear statement” rule in this context creates a new and

third check on Congress’ legislative powers by granting

the Executive the ability to limit the effect of a duly

enacted law through executive agreements. This third

check was not contemplated by the Framers and repre-

sents an unjustified restraint on Congressional power.

Action by the Court is needed now and not later,

because application of the “clear statement” rule in this

context would: (1) unreasonably restrain Congress in

creating laws, in derogation of the separation of powers

doctrine; and (2) frustrate Congress’ intent to allow this

suit against the Islamic Republic of Iran. Unless the Court

grants the petition and declares this test unconstitutional,

Congress will be unable to exercise its Constitutional role.

13

Therefore, the Court should address the constitutionality

of this test at this time.

Respectfully submitted,

A. CAMDEN LEWIS

LEWIS, BABCOCK & HAWKINS, L.L.P.

Attorney for Amici Curiae

1513 Hampton Street

Columbia, South Carolina 29211

(803) 771-8000