Samantar and executive power.

• Author: Rutledge, Peter B.
• Position: Symposium: Foreign State Immunity at Home and Abroad

ABSTRACT

This essay examines Samantar v. Yousuf in the context of broader debate about the relationship between federal common law and executive power. Samantar represents simply the latest effort by the Executive Branch to literally shape the meaning of law through a process referred to in the literature as "executive lawmaking." While traditional accounts of executive lawmaking typically have treated the idea as a singular concept, Samantar demonstrates the need to bifurcate the concept into at least two different categories: acts of executive lawmaking decoupled from pending litigation and acts of executive lawmaking taken expressly in response to litigation. As Samantar illustrates, these latter acts of executive lawmaking raise special concerns about separation of powers and politically motivated decision-making. They counsel in favor of judicial caution in accepting such acts and, more generally, in favor of a more cautious approach to the creation of federal common law, which invites such acts.

TABLE OF CONTENTS I. FEDERAL COMMON LAW AND EXECUTIVE POWER II. MODELS OF EXECUTIVE POWER IN INTERNATIONAL CIVIL LITIGATION III. CRITICISMS AND RESPONSES IV. CONCLUSION In Samantar v. Yousuf, the Supreme Court held that the Foreign Sovereign Immunities Act generally did not cover claims against individual government officers; instead, their immunity (if any) is governed by federal common law. (1) The decision already prompted academic commentary, and elsewhere I have criticized the Court's opinion for its failure to articulate a coherent theoretical basis for its exercise of federal common law as well as for its failure to offer any meaningful guidance about this important rule. (2)

This essay focuses on one particular thread in Samantar-namely, the role of the Executive Branch in the immunity determination after Samantar. Before the Supreme Court, the U.S. government took the view that the scope of the foreign official's common-law immunity turned exclusively on the Executive Branch's determination of whether the official was entitled to it. (3) The government now appears to read Samantar to endorse that view, and early indications suggest that courts will accept that view. (4) The government's position raises important issues about the relationship between federal common law and executive power. That relationship arises in other contexts both before the Supreme Court and in the lower courts. (5) Consequently, Samantar carries implications not simply for the discrete issue of foreign official immunity but also, more broadly, for the horizontal distribution of authority among the branches of the federal government over civil cases that touch upon the foreign relations of the United States. (6)

My thesis is summarized as follows: Samantar represents simply the most recent effort by the Executive Branch to assert that its traditional foreign affairs power encompasses an ability to shape the meaning of federal common law. This effort must be understood within a larger context of the various roles that the Executive Branch can play in cases that touch upon the foreign relations of the United States. Specifically, the Executive can play four roles: (a) offering their views on the proper resolution of a legal question (not unlike any other amicus curiae), (b) offering case-specific guidance to courts on the foreign relations implications of a case (such as urging dismissal of a case on grounds of comity), (c) undertaking official acts that have doctrinal implications binding on courts (such as recognizing foreign states or diplomats), and (d) affirmatively asserting that the meaning of a legal question turns exclusively on the answer given by the Executive Branch (such as the government's view in Samantar).

Much of the academic literature in this area traditionally collapses these last two roles into the single rubric of "executive lawmaking." (7) Contrary to that literature, Samantar demonstrates the need to disaggregate this single category into at least two distinct ones: cases where the Executive undertakes an act decoupled from pending litigation, and cases where the Executive undertakes an act in light of pending litigation. This latter sort of case raises troubling separation-of-powers implications, can create tension with congressional enactments, and undermines needed clarity in important areas of law. These distinct problems should prompt courts to be especially skeptical of executive lawmaking in this area and, more generally, to be more cautious about manufacturing federal common law doctrines that invite such claims by the Executive Branch to complete deference.

This essay develops this thesis in three parts. Part I briefly reviews Samantar and the government's position in that case. It then contextualizes the government's position by comparing it to other areas of law where the government sought to rely on the Executive Branch's foreign affairs power to influence the shape of federal common law. Part II articulates a model by which to conceptualize the various roles that the Executive Branch can play in civil litigation touching upon U.S. foreign relations. It then focuses on the role the Executive Branch sought to play in Samantar--what I call the "adjudicative role"--and identifies several problematic consequences when the Executive Branch is permitted to play that role. Part III anticipates and responds to several potential criticisms.

1. FEDERAL COMMON LAW AND EXECUTIVE POWER

   Other essays in this symposium issue discuss Samantar's history in greater detail, so I summarize only those bits of the history essential to my argument. (8) Samantar involved a suit by natives of Somalia who alleged that Samantar, the former Prime Minister, first Vice President, and Minister of Defense, had authorized extrajudicial killings and torture of the plaintiffs or their family members during the 1980s. (9) During that time, the United States formally recognized the military regime, of which Samantar was a part, as the lawful government of Somalia. (10) Following the fall of the military regime, Samantar fled the country in 1991 and eventually became a resident of Virginia. (11) The district court held that Samantar was immune under the Foreign Sovereign Immunities Act (FSIA), but the Fourth Circuit reversed and held that the FSIA does not apply to individual government officers (leaving open the possibility that federal common law doctrines might protect him). (12)

   After the Supreme Court granted certiorari, the Solicitor General filed a brief on the merits. In that brief, the government took the position that "principles adopted by the Executive Branch, informed by customary international law, govern the immunity of foreign officials acting in their official capacity." (13) According to the government, prior to the FSIA's enactment, the Executive Branch controlled the determination of whether both foreign states and their officials were entitled to a conduct-based immunity. (14) While the FSIA may have altered the mechanics by which a court determines the immunity of foreign states, nothing in the act or its legislative history indicated Congress's intent to alter the State Department's role with respect to foreign officials (present or former). (15)

   Thus according to the government's argument, as in the pre-FSIA context, the Executive Branch continues to control that determination, a determination that binds the federal courts. (16) In other words, if the Executive Branch determines that the official is immune, the court must dismiss the official from the case. If the Executive Branch reaches the contrary conclusion, then dismissal, at least on grounds of immunity, is inappropriate.

   The Court's opinion says remarkably little to this point. On the assumption that federal common law does supply an official immunity--a question technically left open by the Court's opinion (17)--the Court states simply that it was "given no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department's role in determinations regarding individual official immunities." (18) This language hardly represents an express endorsement of the rule that the government urged in its brief. Admittedly, though, it can reasonably be read to endorse that view (and it appears that the government has interpreted the decision to endorse its position). (19)

   Samantar is hardly the first case to raise important issues regarding the intersection of federal common law and executive power. In numerous other areas of law, both historical and recent, the Court wrestled with this horizontal allocation of power between the branches in matters of international civil litigation. Consider the following examples:

   * Act of State Doctrine: In Banco Nacional de Cuba v. Sabbatino, the Court announced the modern form of the act of state doctrine under which courts will not sit in judgment of the validity of the acts of foreign states taken within their territory. (20) Subsequently, the Executive Branch urged the Court to adopt the Bernstein exception under which courts would not dismiss a case on the basis of the act of state doctrine when, in the view of the Executive Branch, the case did not endanger the foreign relations of the United States. (21)

   * Alien Tort Statute (ATS): In Sosa v. Alvarez-Machain, the Court held that federal courts enjoyed a limited power to recognize, as a matter of federal common law, claims for violations of the law of nations at least where the relevant norm had achieved the necessary level of acceptance among civilized nations comparable to the three paradigmatic claims that existed at the time of the ATS's adoption. (22) The Court rejected the Executive Branch's view that judicial inference of a private right of action from customary international law is inconsistent with separation of powers principles. (23) However, in recognition of the Executive Branch's concern, the Court acknowledged that...