This Note will propose the constitutional framework courts should implement when suits are brought against individual foreign officials post-Samantar, specifically arguing that the constitutional allocation of foreign affairs powers requires U.S. courts to broadly insulate foreign officials from suit absent authorization from a political branch. Part I examines the law of nations and its incorporation into the specific foreign relations powers delegated by the Constitution to the political branches, highlighting that the power to affect relations with foreign sovereigns resides in the political branches. Part II explains the Supreme Court’s development of foreign sovereign immunity and the act of state doctrine—which were both informed by the law of nations—leading up to its decision in Samantar. Part III analyzes Samantar after remand, with particular emphasis on the Fourth Circuit’s judicially created abrogation of immunity for foreign officials when plaintiffs allege violations of jus cogens norms of international law. This Part also describes the considerable problems, particularly constitutionally but also pragmatically, with recognition of a judicially created jus cogens exception to immunity.
Part IV proposes the constitutional framework under which analysis of a foreign official’s amenability to suit should proceed. Specifically, this Note argues that the Constitution itself requires U.S. courts to abstain from entering a judgment against current and former officials of recognized foreign sovereigns, absent express authorization from a political branch. Therefore, the Fourth Circuit’s judicially created abrogation of immunity for allegations of jus cogens violations runs afoul of the separation of powers because it usurps the constitutionally delegated powers of the political branches to shape U.S. foreign relations. Courts should first employ two separate immunity doctrines in suits involving foreign officials: status-based immunity, which bars suits against sitting heads of state and foreign officials, and conduct-based immunity, which bars suits for acts committed by officials in their official capacities. Finally, when suit is brought against an individual who was or is an official of a recognized sovereign for acts committed in his official capacity and within his sovereign territory, U.S. courts should invoke the act of state doctrine to dismiss the suit because it is impermissible for American courts to “sit in judgment on the acts of the government of another, done within its own territory,” absent express authorization from a political branch. By refraining from entering judgment in suits against foreign officials, U.S. courts uphold the constitutional allocation of foreign affairs powers to the political branches.
Sarah P. Hogarth,
Suing Foreign Officials in U.S. Courts: Upholding Separation of Powers by Limiting Judicial Abrogation of Immunity,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol89/iss5/12