Justice Neil Gorsuch cited an amicus brief written by Ingrid Brunk, who holds the Helen Strong Curry Chair in International Law, and William Dodge, who is the Martin Luther King Jr. Professor of Law at the University of California, Davis, in his concurring opinion in Halkbank v. U.S., a decision handed down by the U.S. Supreme Court on April 19. The brief is based on an article by Professor Brunk in which she argues against executive control over foreign sovereign immunity.
The United States indicted Halkbank, a bank owned by the Republic of Turkey, for conspiring to evade economic sanctions the U.S. has imposed against Iran. Halkbank argued that the indictment should be dismissed because, under the Foreign Sovereign Immunities Act of 1976, it should be immune from criminal indictment as an instrumentality of a foreign state.
Halkbank’s appeal was denied by the U.S. District Court for the Southern District of New York, and the denial was upheld by the Second Circuit Court of Appeals. The Supreme Court held that the District Court had jurisdiction over Halkbank and that the FSIA does not apply to criminal cases in a majority opinion written by Justice Brett Kavanaugh and signed by six justices.
Justice Gorsuch filed a separate opinion concurring in part and dissenting in part signed by Justice Samuel Alito, citing the brief submitted by Brunk and Dodge.
In their brief, Brunk and Dodge urge the Court to reverse the portion of the Court of Appeals’ decision holding that the Executive Branch “possesses exclusive power over common-law foreign sovereign immunity decisions,” which are then binding on federal courts. They write:
Amici worry that if these rulings were left unaltered or, worse yet, adopted by the Court, they would arrogate to the Executive an astonishingly broad power: to supply binding rules of decision in domestic cases involving foreign sovereign immunity claims.
Justice Gorsuch addressed their position in his separate opinion:
Right out of the gate, lower courts will have to decide between two very different approaches. One option is to defer to the Executive Branch’s judgment on whether to grant immunity to a foreign sovereign—an approach sometimes employed by federal courts in the years immediately preceding the FSIA’s adoption. The other option is for a court to make the immunity decision looking to customary international law and other sources. Compare Brief for United States 2126 with Brief for Professor Ingrid (Wuerth) Brunk et al. as Amici Curiae 6–25.
Whichever path a court chooses, more questions will follow. The first option—deferring to the Executive—would seem to sound in separation-of-powers concerns. But does this mean that courts should not be involved in making immunity determinations at all? And what about the fact that the strong deference cases didn’t appear until the 20th century; were courts acting unconstitutionally before then? If not, should we be concerned that deference to the Executive’s immunity decisions risks relegating courts to the status of potted plants, inconsistent with their duty to say what the law is in the cases that come before them? See, e.g., Brief for Professor Ingrid (Wuerth) Brunk et al. as Amici Curiae 17–21.
In its majority opinion, the Court stated that “The Second Circuit did not fully consider various common-law immunity arguments that the parties raise in this Court,” vacated the judgment, and remanded the case to the Second Circuit to address the issue of common-law immunities.
Brunk discussed the “Open Questions after Halkbank” in an April 21 Lawfare column.
