Recognized by English courts as early as 1674, the act of state DOCTRINE prohibits United States courts from examining
the validity of foreign acts of state. Chief Justice JOHN MARSHALL mentioned a doctrine of noninvolvement in 1808, but the Supreme Court did not accord it formal recognition until Underhill v. Hernandez (1897). Initially, the doctrine strongly resembled the doctrine of SOVEREIGN IMMUNITY which protects the person or acts of a sovereign. In fact, the act of state doctrine may have been invented to deal with technical deficiencies in sovereign immunity.
The act of state doctrine received renewed attention in Banco Nacional de Cuba v. Sabbatino (1964) where an 8?1 Supreme Court held that it applied even when the foreign state's sovereign act violated international law. Justice JOHN MARSHALL HARLAN'S majority opinion rejected earlier assertions that the "inherent nature of sovereign authority" underlay the doctrine; instead it arose out of the SEPARATION OF POWERS. Justice BYRON R. WHITE, dissenting, read Harlan's opinion to declare "exclusive absolute [executive] control" of foreign relations. Acknowledging executive control, White claimed that "this is far from saying ? that the validity of a foreign act of state is necessarily a POLITICAL QUESTION." The Court had, in fact, dismissed a specific executive branch request, contending that it need not be bound by executive determinations; the Court repeated this position in Zschernig v. Miller (1968) and unequivocally denied such executive control in First National City Bank v. Banco Nacional de Cuba (1972) (where two majority Justices joined four dissenters to so argue).
In an effort to harmonize the act of state doctrine with that of sovereign immunity, Justice White tried to create a commercial act exception to the act of state doctrine in Alfred Dunhill of London, Inc. v. Cuba (1976), but he failed to convince a majority on this issue. Because the case had involved no formal governmental decree, White would not have allowed the act of state defense. Even had an act of state been shown, White opposed the doctrine's extension to "purely commercial" acts of a sovereign or its commercial instrumentalities. He relied on the notion, accepted ever since Bank...