At the request of the Executive Branch, courts routinely dismiss private suits against sitting heads of foreign states. Congress has never delegated authority to the Executive Branch to identify principles governing head of state immunity. The courts' practice thus appears inconsistent with the conventional view that the Executive Branch lacks authority to affect private rights unless authorized by Congress to do so. This Article argues that the Executive Branch's practice of determining head of state immunity is an example of sole executive lawmaking, deriving from the President's constitutional responsibility as the only authorized representative of the United States in its relations with foreign states. The President accordingly has some inherent, though limited, lawmaking authority under Article II of the Constitution. The Article supports this doctrinal argument by examining the separation-of-powers concerns underlying the courts' historic deference to executive branch determinations of foreign state immunity, prior to the codification of that subject in 1976. It considers objections that the Executive Branch's authority to determine head of state immunity is more plausibly grounded in the Reception Clause than in the President's more general power to conduct the nation's diplomacy, and that head of state immunity determinations are not really lawmaking. The Article concludes by considering the respective roles of Congress and the courts in determining and applying principles of head of state immunity.
TABLE OF CONTENTS I. INTRODUCTION II. THE TENSION BETWEEN HEAD OF STATE IMMUNITY AND EXCLUSIVE CONGRESSIONAL LAWMAKING A. Judicial Deference to Executive Suggestions of Head of State Immunity: The Courts' Explanation B. The Uneasy Coexistence of Suggestions of Immunity and the "Steel Seizure" Presidency III. THE EXECUTIVE AS LAWMAKER: IMMUNITY AND DIPLOMACY A. The Emergence of Head of State Immunity and Deference to Executive Suggestions 1. The Law of Nations 2. Subject to Revision 3. By "the Sovereign" B. From the Law of Nations to the Separation of Powers 1. The First World War and the Rise of State Commercial Activity 2. Uncertainty and Deference C. Executive Suggestions and Executive Diplomacy 1. The Executive as Sole Diplomat 2. Diplomacy and Immunity D. Some Objections Considered 1. Diplomacy or Reception? 2. Lawmaking or Something Else? IV. THE BOUNDARIES OF SOLE EXECUTIVE LAWMAKING A. The Scope and Limits of Head of State Immunity: The Executive Branch and Congress B. The Scope and Limits of Head of State Immunity: The Executive Branch and the Courts V. CONCLUSION APPENDIX A: SUITS INVOLVING HEAD OF STATE IMMUNITY APPENDIX B: THE TAFT LETTER I. INTRODUCTION
Under a common view of the constitutional separation of powers, the Executive Branch is fully subservient to the Legislature when it comes to making law. The Constitution vests all legislative powers in Congress and none in the President. (1) The Supreme Court has long construed Article I's Vesting Clause as permitting "no delegation of those powers." (2) But whatever force a formalistic conception of legislative powers may have had in the early Republic, it quickly eroded. (3) For most of our constitutional history, the prohibition against delegation of legislative authority has been highly permissive. (4) The Supreme Court has upheld broad delegations of lawmaking power to administrative agencies, provided that Congress "clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.'' (5) Nevertheless, the Supreme Court's non-delegation jurisprudence reflects the idea that the Constitution assigns to Congress alone the authority to make the law. (6) Accordingly, it is generally accepted that "all executive officials," including the President, "must exhibit some statutory warrant at least when their conduct invades the private rights of American citizens.'' (7)
The Constitution's grant of authority to the President is thought to lead to the same result. Article II of the Constitution identifies very few specific powers of the Presidency. (8) Only two of them expressly relate to lawmaking: the President can suggest legislation to Congress, and he has the power to veto bills presented to him by Congress. (9) Neither of these powers authorizes the President to make law on his own. (10) And while some have argued that the general grants of authority--vesting the "executive Power" in the President (11) and directing the President to "take Care that the Laws be faithfully executed" (12)--are independent sources of sole executive lawmaking power, (13) that view has not been dominant. (14)
The notion that the President has no independent lawmaking authority sits uneasily with the courts' practice of dismissing private lawsuits at the direction of the Executive Branch. Over the past forty-five years, private litigants have sued sitting foreign heads of state about thirty times. In almost every case, the government has appeared to "suggest" the defendant's immunity from suit and to inform the court that it must dismiss the suit. (15) With few exceptions, the court deferred to the Executive Branch's assertion of immunity. (16) And in no case did a court require a foreign official to stand suit despite the Executive Branch's assertion of head of state immunity. (17) By directing the dismissal of suits regardless of the merits of the claims, the Executive Branch limits litigants' private rights. (18) That is, it engages in lawmaking. (19) No statute authorizes the Executive Branch to direct courts to dismiss suits against foreign heads of state. (20) And Congress has codified no standards governing the justiciability of suits against foreign officials. (21) Thus, if the Executive Branch has authority to direct the dismissal of a suit, that power must derive from the Constitution. (22)
In this Article, I propose that the Executive Branch's authority to determine head of state immunity derives from a specific constitutional power assigned exclusively to the President--the power to conduct the nation's diplomacy with foreign states. (23) In making this proposal, I take up Henry Monaghan's idea in The Protective Power of the Presidency that "the President's 'specific' constitutional powers, such as the Commander-in-Chief power and the powers 'implied' from presidential duties, now (whatever the original understanding) imply some independent presidential law-making power." (24) Monaghan recognized as examples of presidential lawmaking assertions of foreign sovereign immunity on behalf of states. (25) He did not, however, identify a constitutional basis for that authority or endorse the Executive Branch's claimed role in making immunity determinations. (26) Moreover, Monaghan suggested that Congress's 1976 enactment of the Foreign Sovereign Immunities Act "seems to have precluded any independent 'regulatory' role." (27) But Congress did not displace the Executive Branch's role in determining the immunity from suit of foreign heads of state. (28) Thus, it would be useful to know whether the Executive Branch's lawmaking is constitutionally sanctioned. (29)
Part II of this Article considers the courts' explanation for the practice of deferring to executive branch suggestions of immunity. It focuses on a human rights suit brought against Chinese President Jiang Zemin in 2002, during a diplomatic visit to the United States. The suit against President Jiang is one of the more recent and well publicized instances of the courts' dismissal, at the Executive Branch's request, of a suit against a foreign head of state. In dismissing the suit, the district court and court of appeals held that they were required to follow the Executive Branch's suggestion of immunity. They explained their holding by pointing to the President's significant foreign affairs powers and to the harm that would be caused to our foreign relations were the courts to assume jurisdiction over suit in which the Executive Branch has recognized the foreign official's immunity. Part II ends by highlighting the tension between this explanation for judicial deference to the Executive and the notion that the President lacks any inherent lawmaking power. That understanding of Presidential authority is exemplified by the majority opinion in the Steel Seizure case, (30) a suit in which the Supreme Court repudiated the Executive Branch's reliance on its general foreign affairs powers as a basis for sole executive lawmaking.
The third Part argues that the Executive Branch's authority to direct the dismissal of suits against foreign heads of state derives from the President's constitutional power to conduct the nation's diplomacy. The separation-of-powers concerns that explain the courts' deference to executive branch suggestions of head of state immunity can be traced back to judicial deference to executive determinations of foreign state immunity in the 150 years prior to the enactment of the Foreign Sovereign Immunities Act in 1976. Head of state immunity emerged from the more general doctrine of foreign state immunity after Congress codified the latter. Understanding the separation-of-powers concerns informing the courts' deference to executive suggestions of state immunity thus helps illuminate the constitutional foundation for the Executive Branch's authority to determine head of state immunity.
The Article accordingly focuses on the courts' understanding of the Executive's role at two key periods. Part III first explores the Supreme Court's initial recognition in 1812 of state sovereign immunity in The Schooner Exchange v. McFaddon. (31) While it is generally thought that the Supreme Court created foreign sovereign immunity purely as a "common law" doctrine, a close reading of the Executive Branch's suggestion of immunity, the government's arguments, and the Court's decision in The Schooner Exchange show that the early...