Fordham University School of Law’s International Law Journal presents
The Judicial Power and US Foreign Affairs
Friday, February 21, 2020 10:45 a.m. – 4:45 p.m.
Fordham Law School Costantino Room | Second Floor
COURSE MATERIALS Table of Contents
1. Speaker Biographies (view in document)
2. CLE Materials
Panel 1: Scholarly Debate: Proper Role of the Supreme Court in Foreign Affairs
Benish, K. The Foreign Sovereign Immunities Act. (view in document)
Effron, R. Doctrinal Redundancy and the Two Paradoxes of Personal Jurisdiction. (view in document)
Panel 2: Evolving Judicial Intervention on U.S. Foreign Policy
United States v. Curtiss-Wright Export Corp. et. Al. (view in document)
Clapper, Director of National Intelligence, et al, v. Amnesty International USA et al. Certiorari to the United States Court of Appeals for the Second Circuit. (view in document)
Rosalie Simon, et al., Individually, for themselves and for all others similarly situated Plaintiffs v. Republic of Hungary, et al, Defendants. Civil Action No. 10-1770 (BAH). (view in document)
Rosalie Simon, et al., Appellants v. Republic of Hungary and Magyar Allamvasutak Zrt., Appellees No. 17-7146. (view in document)
Panel 3: How Modern International Relations Impact the Supreme Court: Trends and Prospects
Immigration and Naturalization Service v. Chadha et al Appeal from the United States Court of Appeals for the Ninth Circuit. (view in document)
Trump President of the United States, et al v. Hawaii et al. Certiorari to the United States Court of Appeals for the Ninth Circuit. (view in document) SPEAKERS faculty in 2015, Professor Arato served as an numerous US courts. Associate-in-Law at Columbia Law School. Professor Benish is also an associate at the Z. Payvand Ahdout He previously worked as an associate in the law firm of Holwell Shuster & Goldberg LLP Academic Fellow international arbitration group at Freshfields in New York City, where his practice involves Columbia Law School Bruckhaus Deringer, where his practice matters of international litigation, civil Payvand Ahdout is an Academic Fellow focused on international investment disputes procedure, foreign sovereign immunity, and at Columbia Law School. Her research is and international commercial arbitration. questions of US constitutional law. primarily focused on the ways governing institutions use and shape the federal courts and how that informs public law development. Kevin Arlyck Pamela Bookman Associate Professor of Law Prior to joining Columbia, Payvand served as Associate Professor of Law Georgetown University Law Center a law clerk to Justice Ruth Bader Ginsburg Fordham University School of Law Professor Arlyck teaches civil procedure, on the U.S. Supreme Court and to Judge Professor Pamela Bookman is an expert federal courts, and legal history. His Debra Ann Livingston on the U.S. Court of in the fields of Civil Procedure, Contracts, scholarship investigates the early history Appeals for the Second Circuit. She also International Litigation and Arbitration, of the federal courts, with a particular served as a Bristow Fellow in the Office of the and Conflict of Laws. Her scholarship has focus on the courts’ involvement in Solicitor General of the United States. She appeared in the Stanford Law Review, national governance between ratification has previously held a fellowship at NYU Law. the NYU Law Review, the Yale Journal of of the Constitution and the Civil War. His Most recently, she was an appellate litigator International Law, and other leading law scholarship has been published in Law and at Kirkland & Ellis, LLP. journals. History Review, Brigham Young University Payvand received her J.D. from Columbia Law Law Review, and NYU Law Review. He is Prior to entering academia, Professor School, where she was a James Kent Scholar currently working on a book exploring the Bookman was a Counsel in the New York and a recipient of the Ruth Bader Ginsburg important role the federal courts played in office of Wilmer Cutler Pickering Hale & Dorr Prize. She received a B.A. with highest early U.S. foreign relations. LLP, where she represented clients in complex distinction from the University of Virginia, commercial business disputes with a focus Before coming to Georgetown, Professor where she was a Jefferson Scholar on transnational litigation and maintained an Arlyck received a J.D. and Ph.D. in history active pro bono practice. from New York University, and he clerked for the Hon. Sonia Sotomayor on the Supreme Professor Bookman received her B.A. in Julian Arato Court of the United States and the Hon. Russian Literature from Yale University and Professor of Law Robert Katzmann on the U.S. Court of her J.D. from the University of Virginia School Brooklyn Law School Appeals for the Second Circuit. He also held of Law, where she served as an Articles Editor Professor Arato’s research and teaching academic fellowships at Columbia Law and on the Virginia Law Review and received interests include international economic NYU School of Law, and spent several years the Rosenbloom Award for enhancing the law, public international law, international in private practice at Orrick, Herrington & academic experience of her fellow students organizations, contracts, and private law Sutcliffe in New York. Following law school, Professor Bookman theory. He has written extensively on the law clerked for Judge Robert D. Sack of the U.S. of treaties and treaty interpretation, the law Court of Appeals for the Second Circuit, of international organizations, and the law Kevin D. Benish President Rosalyn Higgins and Judge Thomas of foreign direct investment. He is currently Research Fellow Buergenthal of the International Court of working on a long- term project on the private Center for Transnational Litigation, Justice, and Justice Ruth Bader Ginsburg of law dimensions of international investment Arbitration, and Commercial Law, the U.S. Supreme Court. law. NYU Law At Brooklyn Law School, Professor Arato Kevin Benish is an adjunct professor at the serves as Co-Director for the Dennis J. New York University School of Law, where Elena Chachko Block Center for the Study of International he co-teaches International Litigation and Lecturer on Law, Harvard Law School; Business Law. He also serves as a Co-Chair Arbitration and writes in the areas of Civil Postdoctoral Fellow, Perry World House of the Junior International Law Scholars Procedure, Transnational Litigation, Conflict University of Pennsylvania Association (JILSA); as Vice Chair for the of Laws, and Comparative Law. His research Elena Chachko is an SJD candidate at Harvard American Society of International Law (ASIL) interests include US, EU, and Canadian Law School and a Global Order Postdoctoral International Economic Law Interest Group; approaches to extraterritoriality and data Fellow at Perry World House, University of and as a member of the International Law privacy, and the constitutional limitations on Pennsylvania. Her research focuses on the Association Study Group on the Content and adjudicatory jurisdiction over multinational intersection of administrative law, foreign Evolution of the Rules of Interpretation. corporations in the United States. His relations law, national security law, public international law, and empirical approaches Before joining the Brooklyn Law School previous publications have been cited by to public law. Elena’s work has been published legal department of a large investment bank missions to Northern Ireland, Turkey, Hong in the Yale Journal of International Law and to research questions of German and U.S. Kong, Mexico, Malaysia, Kenya, Romania and the American Journal of International Law law. At Brooklyn Law School, she serves as China. He is also a member of the Council on Unbound, among other publications. She was Co-Director for the Dennis J. Block Center for Foreign Relations. He is currently the Chair previously an International Security Program the Study of International Business Law. She of the Council on International Affairs of Fellow at the Harvard Kennedy School Belfer is an avid writer, penning op-eds for various the New York City Bar Association, where Center for Science and International Affairs, publications. Professor Effron also edits the he was formerly Chair of the Committee a Graduate Student Associate at the Harvard Civil Procedure and Federal Courts Blog for on International Human Rights, and is a life Weatherhead Center for International Affairs, the Law Professors Blog Network. member of the Council on Foreign Relations. and a teaching fellow in Public International Prior to joining Brooklyn Law School’s faculty, Flaherty’s publications focus upon Law at Harvard Law School, where she was Professor Effron served as a Bigelow Fellow constitutional law and history, foreign affairs, also the coordinator of the Harvard Empirical and Lecturer in Law at the University of and international human rights and appear in Legal Studies Series. Chicago Law School. She also served as a law such journals as the Columbia Law Review, Prior to her doctoral studies, Elena clerked for clerk to Judge Alvin K. Hellerstein of the U.S. the Yale Law Journal, the Michigan Law Chief Justice Asher D. Grunis on the Supreme District Court for the Southern District of New Review, the University of Chicago Law Review, Court of Israel. She has also worked at the York. In law school, she was articles editor on Constitutional Commentary, the Harvard United Nations Office of Counterterrorism the NYU Law Review. journal of Law and Policy, the Harvard Human and the Israeli Ministry of Foreign Affairs, Rights Journal, and Ethics & International where she focused on arms control and Martin S. Flaherty Affairs. non-proliferation of weapons of mass Leitner Family Professor; Co-Director, Leitner destruction. In addition, Elena previously Center for International Law and Justice Julian G. Ku served as an intelligence analysis officer Fordham University School of Law Senior Associate Dean for Academic Affairs at the Israel Defense Intelligence Research Martin S. Flaherty is Leitner Family Professor and Maurice A. Deane Distinguished Unit. Elena earned an LL.B in Law and of Law and Founding Co-Director of the Professor of Constitutional Law International Relations (magna cum laude) Leitner Center for International Law and Maurice A. Deane School of Law, Hofstra from the Hebrew University of Jerusalem, and Justice at Fordham Law School. He is also a University completed the LLM program at Harvard Law Visiting Professor at the Woodrow Wilson Professor Ku’s primary research interest School as a Fulbright scholar. School of Public and International Affairs, is the relationship of international law to where he was Fellow in the Program in Law constitutional law. He has also conducted and Public Affairs and a Visiting Professor academic research on a wide range of topics Robin Effron at the New School in New York. Professor including international dispute resolution, Professor of Law; Co-Director Flaherty has taught at China University of international criminal law, and China’s Dennis J. Block Center for the Study of Political Science and Law and the National relationship with international law. He teaches International Business Law Judges College in Beijing, and co-founded the courses such as U.S. constitutional law, U.S. Brooklyn Law School Rule of Law in Asia Program at the Leitner foreign affairs law, transnational law, and Professor Effron teaches civil procedure, Center as well as the Committee to Support international trade and business law. Since litigation, and international business law Chinese Lawyers, an independent NGO on 2014, he has served as the faculty director of courses. Her articles on procedure and federal which he serves as Vice Chair. He has also international programs, overseeing Hofstra courts have appeared in the Georgetown taught at Sungkyunkwan University in Seoul, Law’s study abroad, exchange and LL.M. Law Journal, the Alabama Law Review, the Queen’s University Belfast, Columbia Law programs. He has also been selected as the William & Mary Law Review, the Wake Forest School, Cardozo School of Law, St. John’s John DeWitt Gregory Research Scholar and Law Review, and the Boston University Law University School of Law, and the New School. as a Hofstra Law Research Fellow. He is a Review, and has been cited by several state Previously Professor Flaherty served as a law member of the American Law Institute. and federal courts. She is a regular presenter clerk for Justice Byron R. White of the U.S. He co-founded the leading international and commentator at civil procedure and Supreme Court and Chief Judge John Gibbons law blog Opinio Juris, which is read daily litigation conferences and symposia, and her of the U.S. Court of Appeals for the Third by thousands worldwide. He is also a work has been selected for presentation at Circuit. contributing editor to Lawfare, a leading blog national events such as the AALS Annual Flaherty received a BA summa cum laude analyzing national security issues. His essays Meeting (Civil Procedure Section), the Annual from Princeton, an MA and MPhil from Yale and op-eds have been published in major Civil Procedure Workshop, and Vanderbilt (in history) and a JD from Columbia Law news publications such as The Wall Street Law School’s Branstetter Workshop. School, where he was Book Reviews and Journal, the Los Angeles Times and NYTimes. Conversant in German, she spent an Articles Editor of the Columbia Law Review. com. He has been frequently interviewed for academic year in Germany as a fellow in For the Leitner Center, Human Rights First, television news programs and quoted in print the D.A.A.D. Program for International and the New York City Bar Association, and electronic media. He has also signed Lawyers and worked with attorneys in the he has led or participated in human rights or submitted amicus briefs to national and international courts and served as an expert candidate (ABD) in Government. Before his the Executive Council, and the International witness in both domestic and international academic career, he clerked for Chief Judge Law Association, where she serves on the proceedings. Michael Boudin of the U.S. Court of Appeals Committee on Recognition/Non-Recognition, Before joining the Hofstra Law faculty, for the First Circuit and for Associate Justice and the International Section of the American Professor Ku served as a law clerk to the David Souter of the U.S. Supreme Court, Bar Association. She co-founded Opinio Juris, Honorable Jerry E. Smith of the U.S. Court of and worked at Munger, Tolles & Olson and the leading international law blog. Appeals for the Fifth Circuit and as an Olin Wachtell, Lipton, Rosen & Katz. From 1991 Professor McGuinness graduated with Fellow and Lecturer in Law at the University to 1995, he served as a U.S. naval cryptology distinction from Stanford Law School, where of Virginia Law School. Professor Ku also officer aboard warships and submarines she was an articles editor for the Stanford practiced as an associate at the New York in the Western Pacific and Indian Oceans, Law Review and a graduate fellow at the City law firm of Debevoise & Plimpton, and ashore in Korea and Japan and with the Stanford Center on Conflict and Negotiation. specializing in litigation and arbitration arising National Security Agency. He is Of Counsel at Afterwards, she clerked for Judge Colleen out of international disputes. He has been a Hughes, Hubbard & Reed, and a Member of McMahon in the Southern District of New visiting professor at the College of William the Panel of Conciliators of the International York and worked as a litigator for Paul, Weiss, & Mary Marshall-Wythe School of Law in Centre for Settlement of Investment Disputes Rifkind, Wharton & Garrison LLP. Her career Williamsburg; a Fulbright Distinguished (ICSID) and of the American Law Institute in the law follows an early career as a Foreign Lecturer in Law at East China University of (ALI). Service Officer with the State Department, Political Science and Law in Shanghai; and a Professor Lee also maintains an active which included service in Germany, Pakistan Taiwan Fellow at National Taiwan University Supreme Court practice in matters of public and Canada, and as a Special Assistant to in Taipei. He is a member of the New York Bar interest implicating constitutional rights, data Secretary of State Warren Christopher. and a graduate of Yale College and Yale Law privacy, federal courts and jurisdiction, and School. U.S. foreign relations and national security. Deborah Pearlstein Professor of Law; Co-Director Thomas H. Lee Margaret E. McGuinness Floersheimer Center for Constitutional Leitner Family Professor of International Law Professor of Law; Co-Director Democracy Fordham University School of Law; Special Center for International and Comparative Benjamin N. Cardozo School of Law Counsel to the General Counsel U.S. Law Deborah Pearlstein is a professor of Department of Defense St. John’s University School of Law constitutional and international law. Her work Thomas H. Lee is on leave to serve as Professor McGuinness joined the St. on national security and the separation of Special Counsel to the General Counsel of John’s faculty in 2010. Her researches powers has appeared widely in law journals the U.S. Department of Defense. He joined and teaches in the areas of international and the popular press, including the University the faculty in July 2002, was Director of law and international human rights law, of Pennsylvania Law Review, the University Graduate and International Studies from and she has published widely on the of Michigan Law Review, the University of 2006 to 2019, and has been the Leitner subjects of international human rights law, Texas Law Review, and the Georgetown Law Family Professor of International Law since international security and the resolution of Journal, as well as in Slate, Foreign Policy, 2009. He has also been a Visiting Professor armed conflict, and the role and influence of the Washington Post, and the New York at Columbia Law School, Harvard Law international law in the United States. Her Times. Before joining Cardozo, she was a School, and the University of Virginia School current course offerings include International research scholar in the Law and Public Affairs of Law; an Adjunct Professor at New York Law, International Human Rights, and the Program at the Woodrow Wilson School for University School of Law; and Adviser to Transnational Legal Practice for LL.Ms. Public and International Affairs at Princeton the Constitutional Court of Korea (2006- Professor McGuinness previously taught at University, and held visiting appointments at 11). He has published many articles and the University of Missouri School of Law. the University of Pennsylvania Law School and book chapters on international law, the She has also been a visiting professor at the Georgetown University Law Center. Professor laws of war, international arbitration, U.S. University of Georgia and Temple University, Pearlstein is a leading national voice on law constitutional law, and the U.S. federal courts. and a visiting scholar at the Johns Hopkins and counterterrorism. She has repeatedly His forthcoming book, Justifying War (Oxford School of Advanced International Studies. testified before Congress on topics from University Press, 2020), examines the Professor McGuinness serves on the Council military commissions to detainee treatment. modern history of legal grounds for war and on International Affairs of the New York City She has held appointments as Chair of the their connection to moral justifications and Bar and the Executive Committee of the AALS National Security Law Section, on policy decisions. International Section of the New York State the ABA’s Advisory Committee on Law and Professor Lee holds A.B. (summa cum laude), Bar Association, where she is also co-chair of National Security, and today serves on the A.M. (Regional Studies—East Asia), and J.D. the Public International Law Committee. She editorial board of the peer-reviewed Journal degrees from Harvard, where he was Articles is an active member of the American Society of National Security Law and Policy. Professor Chair of the Harvard Law Review and a Ph.D. of the International Law, where she served on Pearlstein is a magna cum laude graduate of Harvard Law School, she clerked for Judge Papers Case, which was nominated for a (Fourth) of the Foreign Relations Law of the Michael Boudin of the U.S. Court of Appeals Pulitzer Prize, and he is currently writing a United States and served as a legal consultant for the First Circuit, then for Justice John Paul book on the role of courts in national security to a network of human rights groups Stevens of the U.S. Supreme Court. Following cases. In recent years, he has organized formulating proposals for a new treaty on her clerkships, she practiced at the law firm and participated in legal panels on subjects business and human rights. of Munger, Tolles & Olson in San Francisco, such as the disclosures made by Edward As a cooperating attorney with the Center earning the Voting Rights Award from the Snowden and Wikileaks, the NSA Surveillance for Constitutional Rights, Professor Stephens ACLU of Southern California for her litigation Programs, and the ACLU in American Life. continues to litigate pro bono human rights work on voting systems reform following the In 2000-01, he was an inaugural fellow in cases, including cases filed against U.S.-based 2000 presidential election. Princeton University’s Program in Law and corporations alleging responsibility for human From 2003-2007, Professor Pearlstein Public Affairs. rights violations committed in the course of served as the founding director of the Law Prior to his teaching career, Professor their activities abroad. and Security Program at Human Rights First, Rudenstine served as Acting Executive Professor Stephens graduated magna cum where she led the organization’s efforts in Director of the New York Civil Liberties Union, laude from Harvard University, received her research, litigation and advocacy surrounding Counsel to the National News Council, a staff J.D. degree from Berkeley Law School, and U.S. detention and interrogation operations, attorney in the New York City legal services clerked for Chief Justice Rose Bird of the and served on the first team of independent program, and Director of the Citizen’s Inquiry California Supreme Court. From 1990-1995, military commission monitors to visit the on Parole and Criminal Justice, Inc. During she was in charge of the international human U.S. Naval Base at Guantanamo Bay in 2004. the 1970s, Professor Rudenstine litigated rights docket at the Center for Constitutional In addition to developing impact litigation extensively in federal and state courts in Rights in New York, where she litigated strategies and preparing multiple briefs the 1970s, and throughout the 1990s, he cases addressing human rights violations in amicus curiae to the U.S. Supreme Court, frequently served as a labor arbitrator and countries around the world and received the Pearlstein co-authored a series of reports a court-appointed mediator and referee. Trial Lawyer of the Year Award from Trial on the human rights impact of U.S. national For three years he served as Chair of the Lawyers for Public Justice in recognition of security policy, including Command’s Labor and Employment Law Committee that work. She spent six years studying the Responsibility, which provided the first of the Association of the Bar of the City of changing legal system in Nicaragua in the comprehensive accounting of detainee deaths New York. In the summer of 1962, Professor 1980s. in U.S. military custody and received extensive Rudenstine taught African American children media attention worldwide. Throughout her in Prince Edward County, Virginia, the only tenure, Professor Pearlstein worked closely county in the United States to close its public David P. Stewart with members of the defense and intelligence schools rather than comply with a judicial Professor from Practice; Co-Director, Global communities, including in helping to bring order requiring integration. From 1964-1966, Law Scholars Program; Director, Center on together retired military leaders to address he was a Peace Corps Volunteer teaching in Transnational Business and the Law key policy challenges in U.S. counterterrorism Uganda. He was a Field Fellow in the Arthur Georgetown University Law Center operations. Garfield Hays Civil Liberties, while attending Professor Stewart joined the GULC faculty Before embarking on a career in law, New York University School of Law. While following his retirement from the career Pearlstein served in the White House he was the Cardozo Dean, The Kathryn O. Senior Executive Service at the U. S. from 1993 to 1995 as a Senior Editor and and Alan C. Greenberg Center for Student Department of State, where he worked for Speechwriter for President Clinton. Life was given in his honor, and in 2012, over three decades in the Office of the Legal Susan Halpern funded the establishment of Adviser. His last position was Assistant the David Rudenstine Fellowship Program in Legal Adviser for Private International Law; Public Service. David Rudenstine previously he served as Assistant Legal Sheldon H. Solow Professor of Law, Benjamin Adviser for Diplomatic Law and Litigation, N. Cardozo School of Law for African Affairs, for Human Rights David Rudenstine served as Dean of the Beth Stephens and Refugees, for Law Enforcement and Cardozo School of Law from 2001-09, and Distinguished Professor of Law Intelligence, and for International Claims is currently the Sheldon H. Solow Professor Rutgers Law School and Investment Disputes, as well as Special of Law at Cardozo, where he has taught Professor Stephens has published a variety Assistant to the Legal Adviser. Before joining constitutional law since 1979. The first dean of articles on the relationship between the government, he was in private practice appointed from the ranks of the Cardozo international and domestic law, focusing with Donovan Leisure Newton & Irvine in faculty, Professor Rudenstine is an American on the enforcement of international human commercial and antitrust litigation. He was legal scholar respected for his work on free rights norms through domestic courts and Adjunct Professor at Georgetown for over 25 press, free speech, and national security the incorporation of international law into years and received the Law Center’s Charles issues. He is the author of The Day the U.S. law. Professor Stephens was an Advisor Fahy award for distinguished adjunct faculty Presses Stopped: A History of the Pentagon to the American Law Institute’s Restatement teaching in 2003-2004. In 2019 he received the Law Center’s Faculty of the Year award. class actions and other complex commercial litigation. After leaving practice, he was Professor Stewart is past President of the a Sharswood Fellow at the University of American Branch of the International Law Pennsylvania Law School (2011-2013) and an Association and a member of the Board Associate-in-Law at Columbia (2013-2016). of Editors of the American Journal of International Law as well as the Secretary of State’s Advisory Committee on Private International Law. The American Law Institute selected him to serve as one of the Reporters working on the Restatement (Fourth), Foreign Relations Law of the United States. He previously served on the Executive Council of the ABA’s Section of International Law and the Executive Council of the American Society of International Law. From 2008-2016 he was a member of the Inter-American Juridical Committee, which advises the Organization of American States on juridical matters of an international nature and promotes the progressive development and codification of international law. Professor Stewart co-directs the Global Law Scholars Program, directs the Center on Transnational Business and the Law, advises the Georgetown Journal of International Law, and teaches courses in public and private international law, foreign relations law, international immunities, international criminal law and international law in domestic courts. He served to Major, U.S. Army Reserves in military intelligence.
Ryan C. Williams Assistant Professor of Law, Boston College Law School Ryan Williams joined the Boston College Law faculty as an Assistant Professor of Law in 2016. He teaches and writes in the areas of constitutional law, civil procedure, and federal courts. His research has included works focusing on the original meanings of the Fifth, Ninth, and Fourteenth Amendments as well as works exploring the intersection of constitutional rules and the civil litigation process. His prior publications have appeared or are forthcoming in the Yale Law Journal, the Columbia Law Review, the Stanford Law Review, the Notre Dame Law Review, and the Virginia Law Review. After graduating from Columbia Law School, Williams worked as a litigation associate in the New York office of Sullivan & Cromwell, LLP where his practice focused primarily on Kevin D. Benish, NYU School of Law (2020 Fordham International Law Journal Symposium)
THE FOREIGN SOVEREIGN IMMUNITIES ACT 28 U.S.C. § 1602 § 1602. Findings and declaration of purpose
The Congress finds that the determination by United States courts of the claims of foreign states to immunity from the jurisdiction of such courts would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts. Under international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities. Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter. 28 U.S.C. § 1603 § 1603. Definitions For purposes of this chapter-- (a) A “foreign state”, except as used in section 1608 of this title, includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b). (b) An “agency or instrumentality of a foreign state” means any entity-- (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (e) of this title, nor created under the laws of any third country. (c) The “United States” includes all territory and waters, continental or insular, subject to the jurisdiction of the United States. (d) A “commercial activity” means either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.
(e) A “commercial activity carried on in the United States by a foreign state” means commercial activity carried on by such state and having substantial contact with the United States.
1 Kevin D. Benish, NYU School of Law (2020 Fordham International Law Journal Symposium)
28 U.S.C. § 1604 § 1604. Immunity of a foreign state from jurisdiction
Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter. 28 U.S.C. § 1605
§ 1605. General exceptions to the jurisdictional immunity of a foreign state
(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case-- (1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver; (2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States; (3) in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States; (4) in which rights in property in the United States acquired by succession or gift or rights in immovable property situated in the United States are in issue;
(5) not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; except this paragraph shall not apply to-- (A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused, or (B) any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights; or
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(6) in which the action is brought, either to enforce an agreement made by the foreign state with or for the benefit of a private party to submit to arbitration all or any differences which have arisen or which may arise between the parties with respect to a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration under the laws of the United States, or to confirm an award made pursuant to such an agreement to arbitrate, if (A) the arbitration takes place or is intended to take place in the United States, (B) the agreement or award is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards, (C) the underlying claim, save for the agreement to arbitrate, could have been brought in a United States court under this section or section 1607, or (D) paragraph (1) of this subsection is otherwise applicable. (b) A foreign state shall not be immune from the jurisdiction of the courts of the United States in any case in which a suit in admiralty is brought to enforce a maritime lien against a vessel or cargo of the foreign state, which maritime lien is based upon a commercial activity of the foreign state: Provided, That-- (1) notice of the suit is given by delivery of a copy of the summons and of the complaint to the person, or his agent, having possession of the vessel or cargo against which the maritime lien is asserted; and if the vessel or cargo is arrested pursuant to process obtained on behalf of the party bringing the suit, the service of process of arrest shall be deemed to constitute valid delivery of such notice, but the party bringing the suit shall be liable for any damages sustained by the foreign state as a result of the arrest if the party bringing the suit had actual or constructive knowledge that the vessel or cargo of a foreign state was involved; and (2) notice to the foreign state of the commencement of suit as provided in section 1608 of this title is initiated within ten days either of the delivery of notice as provided in paragraph (1) of this subsection or, in the case of a party who was unaware that the vessel or cargo of a foreign state was involved, of the date such party determined the existence of the foreign state’s interest. (c) Whenever notice is delivered under subsection (b)(1), the suit to enforce a maritime lien shall thereafter proceed and shall be heard and determined according to the principles of law and rules of practice of suits in rem whenever it appears that, had the vessel been privately owned and possessed, a suit in rem might have been maintained. A decree against the foreign state may include costs of the suit and, if the decree is for a money judgment, interest as ordered by the court, except that the court may not award judgment against the foreign state in an amount greater than the value of the vessel or cargo upon which the maritime lien arose. Such value shall be determined as of the time notice is served under subsection (b)(1). Decrees shall be subject to appeal and revision as provided in other cases of admiralty and maritime jurisdiction. Nothing shall preclude the plaintiff in any proper case from seeking relief in personam in the same action brought to enforce a maritime lien as provided in this section. (d) A foreign state shall not be immune from the jurisdiction of the courts of the United States in any action brought to foreclose a preferred mortgage, as defined in section 31301 of title 46. Such action shall be brought, heard, and determined in accordance with the provisions of chapter 313 of title 46 and in accordance with the principles of law and rules of practice of suits in rem, whenever it appears that had the vessel been privately owned and possessed a suit in rem might have been maintained.
3 Kevin D. Benish, NYU School of Law (2020 Fordham International Law Journal Symposium)
(g) Limitation on discovery.-- (1) In general.--(A) Subject to paragraph (2), if an action is filed that would otherwise be barred by section 1604, but for section 1605A or section 1605B, the court, upon request of the Attorney General, shall stay any request, demand, or order for discovery on the United States that the Attorney General certifies would significantly interfere with a criminal investigation or prosecution, or a national security operation, related to the incident that gave rise to the cause of action, until such time as the Attorney General advises the court that such request, demand, or order will no longer so interfere. (B) A stay under this paragraph shall be in effect during the 12-month period beginning on the date on which the court issues the order to stay discovery. The court shall renew the order to stay discovery for additional 12-month periods upon motion by the United States if the Attorney General certifies that discovery would significantly interfere with a criminal investigation or prosecution, or a national security operation, related to the incident that gave rise to the cause of action. (2) Sunset.--(A) Subject to subparagraph (B), no stay shall be granted or continued in effect under paragraph (1) after the date that is 10 years after the date on which the incident that gave rise to the cause of action occurred. (B) After the period referred to in subparagraph (A), the court, upon request of the Attorney General, may stay any request, demand, or order for discovery on the United States that the court finds a substantial likelihood would-- (i) create a serious threat of death or serious bodily injury to any person; (ii) adversely affect the ability of the United States to work in cooperation with foreign and international law enforcement agencies in investigating violations of United States law; or (iii) obstruct the criminal case related to the incident that gave rise to the cause of action or undermine the potential for a conviction in such case. (3) Evaluation of evidence.--The court’s evaluation of any request for a stay under this subsection filed by the Attorney General shall be conducted ex parte and in camera.
(4) Bar on motions to dismiss.--A stay of discovery under this subsection shall constitute a bar to the granting of a motion to dismiss under rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure. (5) Construction.--Nothing in this subsection shall prevent the United States from seeking protective orders or asserting privileges ordinarily available to the United States. (h) Jurisdictional immunity for certain art exhibition activities.-- (1) In general.--If-- (A) a work is imported into the United States from any foreign state pursuant to an agreement that provides for the temporary exhibition or display of such work entered into between a foreign state that is the owner or custodian of such work and the United States or one or more
4 Kevin D. Benish, NYU School of Law (2020 Fordham International Law Journal Symposium)
cultural or educational institutions within the United States; (B) the President, or the President’s designee, has determined, in accordance with subsection (a) of Public Law 89-259 (22 U.S.C. 2459(a)), that such work is of cultural significance and the temporary exhibition or display of such work is in the national interest; and (C) the notice thereof has been published in accordance with subsection (a) of Public Law 89- 259 (22 U.S.C. 2459(a)), any activity in the United States of such foreign state, or of any carrier, that is associated with the temporary exhibition or display of such work shall not be considered to be commercial activity by such foreign state for purposes of subsection (a)(3). (2) Exceptions.-- (A) Nazi-era claims.--Paragraph (1) shall not apply in any case asserting jurisdiction under subsection (a)(3) in which rights in property taken in violation of international law are in issue within the meaning of that subsection and-- (i) the property at issue is the work described in paragraph (1); (ii) the action is based upon a claim that such work was taken in connection with the acts of a covered government during the covered period; (iii) the court determines that the activity associated with the exhibition or display is commercial activity, as that term is defined in section 1603(d); and (iv) a determination under clause (iii) is necessary for the court to exercise jurisdiction over the foreign state under subsection (a)(3). (B) Other culturally significant works.--In addition to cases exempted under subparagraph (A), paragraph (1) shall not apply in any case asserting jurisdiction under subsection (a)(3) in which rights in property taken in violation of international law are in issue within the meaning of that subsection and-- (i) the property at issue is the work described in paragraph (1); (ii) the action is based upon a claim that such work was taken in connection with the acts of a foreign government as part of a systematic campaign of coercive confiscation or misappropriation of works from members of a targeted and vulnerable group; (iii) the taking occurred after 1900; (iv) the court determines that the activity associated with the exhibition or display is commercial activity, as that term is defined in section 1603(d); and (v) a determination under clause (iv) is necessary for the court to exercise jurisdiction over the foreign state under subsection (a)(3). (3) Definitions.--For purposes of this subsection-- (A) the term “work” means a work of art or other object of cultural significance;
5 Kevin D. Benish, NYU School of Law (2020 Fordham International Law Journal Symposium)
(B) the term “covered government” means-- (i) the Government of Germany during the covered period; (ii) any government in any area in Europe that was occupied by the military forces of the Government of Germany during the covered period; (iii) any government in Europe that was established with the assistance or cooperation of the Government of Germany during the covered period; and (iv) any government in Europe that was an ally of the Government of Germany during the covered period; and (C) the term “covered period” means the period beginning on January 30, 1933, and ending on May 8, 1945.
28 U.S.C. § 1605A § 1605A. Terrorism exception to the jurisdictional immunity of a foreign state
(a) In general.-- (1) No immunity.--A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency. (2) Claim heard.--The court shall hear a claim under this section if-- (A)(i)(I) the foreign state was designated as a state sponsor of terrorism at the time the act described in paragraph (1) occurred, or was so designated as a result of such act, and, subject to subclause (II), either remains so designated when the claim is filed under this section or was so designated within the 6-month period before the claim is filed under this section; or (II) in the case of an action that is refiled under this section by reason of section 1083(c)(2)(A) of the National Defense Authorization Act for Fiscal Year 2008 or is filed under this section by reason of section 1083(c)(3) of that Act, the foreign state was designated as a state sponsor of terrorism when the original action or the related action under section 1605(a)(7) (as in effect before the enactment of this section) or section 589 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997 (as contained in section 101(c) of division A of Public Law 104-208) was filed;
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(ii) the claimant or the victim was, at the time the act described in paragraph (1) occurred-- (I) a national of the United States; (II) a member of the armed forces; or (III) otherwise an employee of the Government of the United States, or of an individual performing a contract awarded by the United States Government, acting within the scope of the employee’s employment; and (iii) in a case in which the act occurred in the foreign state against which the claim has been brought, the claimant has afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with the accepted international rules of arbitration; or (B) the act described in paragraph (1) is related to Case Number 1:00CV03110 (EGS) in the United States District Court for the District of Columbia. . . . . (c) Private right of action.--A foreign state that is or was a state sponsor of terrorism as described in subsection (a)(2)(A)(i), and any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, shall be liable to-- (1) a national of the United States, (2) a member of the armed forces, (3) an employee of the Government of the United States, or of an individual performing a contract awarded by the United States Government, acting within the scope of the employee’s employment, or (4) the legal representative of a person described in paragraph (1), (2), or (3), for personal injury or death caused by acts described in subsection (a) (1) of that foreign state, or of an official, employee, or agent of that foreign state, for which the courts of the United States may maintain jurisdiction under this section for money damages. In any such action, damages may include economic damages, solatium, pain and suffering, and punitive damages. In any such action, a foreign state shall be vicariously liable for the acts of its officials, employees, or agents. (d) Additional damages.--After an action has been brought under subsection (c), actions may also be brought for reasonably foreseeable property loss, whether insured or uninsured, third party liability, and loss claims under life and property insurance policies, by reason of the same acts on which the action under subsection (c) is based. . . . .
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28 U.S.C. § 1605B § 1605B. Responsibility of foreign states for international terrorism against the United States
(a) Definition.--In this section, the term “international terrorism”-- (1) has the meaning given the term in section 2331 of title 18, United States Code; and (2) does not include any act of war (as defined in that section). (b) Responsibility of foreign states.--A foreign state shall not be immune from the jurisdiction of the courts of the United States in any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by-- (1) an act of international terrorism in the United States; and (2) a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless where the tortious act or acts of the foreign state occurred. (c) Claims by nationals of the United States.--Notwithstanding section 2337(2) of title 18, a national of the United States may bring a claim against a foreign state in accordance with section 2333 of that title if the foreign state would not be immune under subsection (b). (d) Rule of construction. --A foreign state shall not be subject to the jurisdiction of the courts of the United States under subsection (b) on the basis of an omission or a tortious act or acts that constitute mere negligence.
28 U.S.C. § 1606 § 1606. Extent of liability As to any claim for relief with respect to which a foreign state is not entitled to immunity under section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances; but a foreign state except for an agency or instrumentality thereof shall not be liable for punitive damages; if, however, in any case wherein death was caused, the law of the place where the action or omission occurred provides, or has been construed to provide, for damages only punitive in nature, the foreign state shall be liable for actual or compensatory damages measured by the pecuniary injuries resulting from such death which were incurred by the persons for whose benefit the action was brought.
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THE FEDERAL VENUE STATUTE 28 U.S.C. § 1391
(a) Applicability of Section.—Except as otherwise provided by law—
(1) this section shall govern the venue of all civil actions brought in district courts of the United States; and
(2) the proper venue for a civil action shall be determined without regard to whether the action is local or transitory in nature.
(b) Venue in General.—A civil action may be brought in—
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.
. . . .
(f) Civil Actions Against a Foreign State.—A civil action against a foreign state as defined in section 1603(a) of this title may be brought—
(1) in any judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated;
(2) in any judicial district in which the vessel or cargo of a foreign state is situated, if the claim is asserted under section 1605(b) of this title;
(3) in any judicial district in which the agency or instrumentality is licensed to do business or is doing business, if the action is brought against an agency or instrumentality of a foreign state as defined in section 1603(b) of this title; or
(4) in the United States District Court for the District of Columbia if the action is brought against a foreign state or political subdivision thereof.
9 Brooklyn Law School Legal Studies Research Papers Accepted Paper Series
Research Paper No. 620 November 2019
Doctrinal Redundancy and the Two Paradoxes of Personal Jurisdiction Robin Effron
This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract=3493899
DOCTRINAL REDUNDANCY AND THE TWO PARADOXES OF PERSONAL JURISDICTION
Robin J. Effron*
INTRODUCTION The quandaries in modern American personal jurisdiction jurisprudence are myriad. The overarching question, “why is personal jurisdiction doctrine such a mess?” has been a guarantor of full employment for civil procedure professors for decades,1 and the subsidiary questions are also well worn. What is the relationship between personal jurisdiction and constitutional due process?2 What is the relationship between personal jurisdiction and venue?3 Between personal jurisdiction and forum non conveniens?4 Between personal jurisdiction and notice?5 Why has the federal government chosen via Rule 4(k) to rely heavily on the states for the content of the scope of personal jurisdiction? A broader question lies at the heart of many of these inquiries: what is personal jurisdiction for, and are we asking personal jurisdiction to do the work that either is or should be done by other doctrines? Stated differently, one might ask: is personal jurisdiction redundant of other procedural doctrines? Or are other doctrines redundant of personal jurisdiction? Professor Ingrid Wuerth’s Article, The Due Process and Other Constitutional Rights of Foreign Nations (“Constitutional Rights of Foreign Nations”),6 offers the opportunity to focus on an important but often overlooked side of personal jurisdiction redundancy, that is, the extent to which constitutional personal jurisdiction does (or does not) occupy some common space with doctrines of foreign sovereign immunity.
* Professor of Law, Brooklyn Law School. Thanks to Michael Cooper for excellent research assistance and to Dean Michael Cahill for support from the Dean’s Summer Research Fund.
1. See Adam N. Steinman, Access to Justice, Rationality, and Personal Jurisdiction, 71 VAND. L. REV. 1401, 1403 n.2 (2018) (citing the major personal jurisdiction articles over the past few decades). 2. See generally Jay Conison, What Does Due Process Have to Do with Jurisdiction?, 46 RUTGERS L. REV. 1071 (1994). 3. See Scott Dodson, Plaintiff Personal Jurisdiction and Venue Transfer, 117 MICH. L. REV. 1463 (2019). 4. See Maggie Gardner, Retiring Forum Non Conveniens, 92 N.Y.U. L. REV. 390 (2017). 5. See Robin J. Effron, The Lost Story of Notice and Personal Jurisdiction, 74 N.Y.U. ANN. SURV. AM. L. 23 (2018). 6. Ingrid Wuerth, The Due Process and Other Constitutional Rights of Foreign Nations, 88 FORDHAM L. REV. 633 (2019).
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Constitutional Rights of Foreign Nations is an important and comprehensive contribution to the civil procedure and foreign relations law literatures. With regard to procedure, it advances the debate about personal jurisdiction and due process along two key axes. First, it documents the extent to which foreign states have been excluded from the protections of the due process rights to resist the exercise of personal jurisdiction. Professor Wuerth then constructs an elegant argument for including foreign states as the subjects of personal jurisdiction due process protection under the U.S. Constitution and then uses that reasoning to make larger points about the relationship between personal jurisdiction as a due process protection and personal jurisdiction’s role in Article III’s allocation of power to the federal courts. Professor Wuerth highlights personal jurisdiction7 as a core site of judicial attention to the due process status of foreign states under the U.S. Constitution, and she rightly argues that [a]s foreign states and foreign state-owned enterprises expand their commercial activities and engage with the United States in new ways, especially in the cyber, terrorism, and economic-espionage contexts, litigation against them is increasing in scope and importance. Questions about their constitutional status, which to date have been litigated mostly in the context of personal jurisdiction, are likely to assume greater significance in many additional contexts, including in criminal prosecutions of corporations owned by foreign states.8 This is an important observation. Much of the attention paid to the transnational complications in personal jurisdiction has centered around the problem of non-resident alien defendants whose due process protections have been strengthened to the point that American litigants have trouble suing such defendants in a convenient forum state or in any American forum at all,9 a problem that I have called the “non-resident alien paradox.”10 Far less attention has been given to the equally paradoxical result that when the non- resident alien defendant is a foreign state, the due process protections for personal jurisdiction fall to zero.11 In this brief Essay, I argue that both paradoxes share a conceptual origin: the problem of redundancy in constitutional personal jurisdiction doctrine. To do so, I highlight the parallel stories of personal jurisdiction and foreign sovereign immunity that Professor Wuerth weaves throughout her Article. Considering these two stories in the same space gives further evidence of the extent to which personal jurisdiction overlaps with other procedural doctrines. But it also shows how the peculiar
7. Professor Wuerth also addresses the associated notice doctrines. Id. at 668 (“Notice was often described as a fundamental aspect of ‘judicial’ power.”). 8. Wuerth, supra note 6, at 636. 9. See William S. Dodge & Scott Dodson, Personal Jurisdiction and Aliens, 116 MICH. L. REV. 1205 (2018). 10. Robin J. Effron, Solving the Nonresident Alien Due Process Paradox in Personal Jurisdiction, 116 MICH. L. REV. ONLINE 123 (2018). 11. See Wuerth, supra note 6, at 647 (criticizing recent doctrine as requiring “courts to draw a constitutional distinction between foreign corporations and foreign states”).
2019] DOCTRINAL REDUNDANCY AND THE TWO PARADOXES 119 historical path of each doctrine can mask the extent of the shared space and thus delay a reckoning with the extent and consequences of the overlap. One problem with personal jurisdiction redundancy is the extent to which courts have stubbornly refused to acknowledge much of the overlap or take seriously the implications of redundancy.12 This lack of engagement is partly responsible for the double paradox of extraterritorial personal jurisdiction where private alien defendants seem to enjoy greater constitutional protections than domestic defendants, while their sovereign counterparts are granted the least of them all.13 My thesis here is not mutually exclusive with the many other theories and explanations of the scope and provenance of constitutional personal jurisdiction doctrine. But there is a particular doctrinal history to tell here. By the time that personal jurisdiction had come to occupy some serious shared space with several other procedural doctrines, the lack of engagement both furthered the detachment of the doctrines and solidified much of the redundancy. At several junctures, scholars have wondered what constitutional personal jurisdiction doctrine can and should add to procedural doctrines that regulate access to courts and parties’ amenability to suit in U.S. jurisdictions, and procedural doctrines that sort lawsuits into geographically suitable or appropriate locations. Professor Wuerth’s Article invites us to refocus on the question of what doctrines can and should regulate the amenability of foreign sovereigns (as well as the agencies and instrumentalities of foreign sovereigns) to suit in American courts.
I. THE ORIGINS OF REDUNDANCY IN PERSONAL JURISDICTION In the first century of the republic, personal jurisdiction was largely an affair of state law, with its origins in natural law, the “general law,” and international law principles of comity.14 The federal constitutional dimensions of personal jurisdiction were limited to questions of full faith and credit and other structural federalism concerns.15 The affirmative requirements for personal jurisdiction came in the form of state statutory and common law rules for service of process—this was how personal jurisdiction
12. There are in fact ways in which personal jurisdiction redundancy may be problematic on its own terms, but I decline to take up that larger issue in this short Essay. 13. Cf. Aaron D. Simowitz, Legislating Transnational Jurisdiction, 57 VA. J. INT’L L. 325, 372 (2018) (“[I]t makes little sense to draw dramatic distinctions between sovereigns and private parties when the entire structure of the FSIA is premised upon the principle that, when sovereigns act like private parties, they will be treated like private parties.”). 14. See Wuerth, supra note 6, at 668; see also Stephen E. Sachs, Pennoyer Was Right, 95 TEX L. REV. 1249, 1252 (2017) (arguing against “the main holding of Pennoyer: that the Fourteenth Amendment’s Due Process Clause . . . imposes rules for personal jurisdiction”); Effron, supra note 5, at 30 (2018) (observing that, prior to Pennoyer, courts approached personal jurisdiction primarily as a limit on a court’s authority—one grounded “first and foremost in notions of territoriality”). 15. See Effron, supra note 5, at 30; Roger H. Trangsrud, The Federal Common Law of Personal Jurisdiction, 57 GEO. WASH. L. REV. 849, 850–84 (1989).
120 FORDHAM LAW REVIEW ONLINE [Vol. 88 was “perfected” and it also served the purpose for fulfilling the natural and general law requirements of notice of the pendency of an action.16 The law of service of process served multiple purposes, but it would be a stretch to say that personal jurisdiction itself was redundant of other procedural doctrines, at least not in any significant way. It was not until Pennoyer v. Neff17 that personal jurisdiction became a doctrine, national in scope, that was meant to “do” something, although the identity of that “thing” was unclear at the time of Pennoyer and remains the subject of intense debate through the modern era. In Pennoyer, the Supreme Court held that impermissible exercises of personal jurisdiction by state courts were in fact due process violations of the Fourteenth Amendment.18 Here was born the personal jurisdiction redundancy problem: if personal jurisdiction was, in fact, a feature of constitutional due process, what is the “process” in personal jurisdiction that is due to the defendant? By the end of nearly 150 years of personal jurisdiction jurisprudence, the Supreme Court was struggling to articulate what personal jurisdiction itself had to offer beyond the constitutional enforcement of the territorial limitations of the power of a forum state.19 Although the due process question is ostensibly connected to a standard of “reasonableness,”20 the attempt to define what sort of exercise of personal jurisdiction is constitutionally unreasonable has not produced anything approaching a clear or workable standard. One reason for this is that courts and commentators have had some difficulty in answering the due process nexus question in a manner that is not duplicative of other procedural doctrines, both constitutional and rule-based. Once personal jurisdiction became “A Thing” under the Fourteenth Amendment, courts needed to know what it was “for” in order to locate or justify the due process violation. Although one can identify Pennoyer as the conceptual origin of personal jurisdiction redundancy, this puzzle remained relatively submerged until the Supreme Court announced the minimum contacts test as the due process standard for personal jurisdiction in International Shoe Co. v. Washington.21 The Pennoyer rule required personal, in-hand service of process, mostly within the territory of the forum state.22 Efforts to push the boundaries of the
16. See Effron, supra note 5, at 30–31. 17. 95 U.S. 714 (1877). 18. Id. at 733. 19. See Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1780 (2017). 20. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477–78 (1985); see also Wendy Collins Perdue, Sin, Scandal, and Substantive Due Process: Personal Jurisdiction and Pennoyer Reconsidered, 62 WASH. L. REV. 479, 510–18 (examining and questioning the link between due process and several putative interests addressed by personal jurisdiction doctrine). 21. 326 U.S. 310 (1945). 22. See RHONDA WASSERMAN, PROCEDURAL DUE PROCESS: A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION 207–61 (2004) (history and status of due process doctrine for personal jurisdiction).
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Pennoyer rule with substituted service or service outside the territory of the forum state centered around cases that seemed to fit within Pennoyer’s exceptions, such as in rem proceedings,23 or efforts to expand the jurisdictional reach of states with aggressive uses of explicit and implied consent to suit in the forum state.24 But, for the most part, the pre- International Shoe cases maintained the Pennoyer framework, which was largely consistent with the older general law and comity framework with the additional veneer of due process as the doctrinal hook for the idea of a constitutionally based outer limit on the exercise of jurisdiction. The International Shoe minimum contacts standard opened up a world of long-arm jurisdiction possibilities. The minimum contacts test itself was borne of frustration with trying to discern the territorial “presence” of an ever-increasing number of non-natural defendants (mainly corporations), transacting business and engaging in other actions within and across any number of jurisdictions beyond their state of organization or primary business operations. The minimum contacts test freed courts from the rigid and often artificial territoriality of Pennoyer. But it generated a new set of questions about the constitutional grounding of personal jurisdiction. In the seven decades since the Court announced the minimum contacts test, various theories of personal jurisdiction and its relationship to minimum contacts and due process have gone in and out of vogue.25 Among the many criticisms of the Court’s personal jurisdiction jurisprudence are the claims that personal jurisdiction in general and the minimum contacts test in particular are duplicative of other procedural doctrines or procedural tools— procedural devices that are, perhaps, better suited to addressing the various concerns that courts and commentators have voiced. The rules of venue and doctrine of forum non conveniens are tools to sort cases into geographically sensical forums.26 The rules of service of process and constitutional dimensions of notice address the concerns of how and when to reach the defendant and inform it of the pendency of a lawsuit.27 Underlying substantive law can or should be constructed and interpreted so as not to
23. See Effron, supra note 5, at 36–47 (analyzing the following exceptions to the rigid Pennoyer regime: in rem cases, cases involving marital status, cases involving service of process on state officials in their capacity as agents for corporations, cases involving consent to a forum state’s jurisdiction, and in personam out-of-state service, i.e. when a resident of a state is served with process to appear in their home state while they are currently out of state). 24. Hess v. Pawloski, 274 U.S. 352, 356–57 (1927). 25. See Effron, supra note 5, at 35 n.36 (collecting scholarly articles on the history and theories of personal jurisdiction). 26. See Christopher D. Cameron & Kevin R. Johnson, Death of a Salesman?: Forum Shopping and Outcome Determination under International Shoe, 28 U.C. DAVIS L. REV. 769, 841 (1995) (“Rather than having venue become increasingly reliant on jurisdiction doctrine, a more sensible approach might be for the jurisdictional rules to mirror the federal venue statute, or the state law equivalents.”); John T. Parry, Introduction: Due Process, Borders, and the Qualities of Sovereignty—Some Thoughts on J. McIntyre Machinery v. Nicastro, 16 LEWIS & CLARK L. REV. 827, 855 (2012). 27. See Effron, supra note 5, at 31, 38.
122 FORDHAM LAW REVIEW ONLINE [Vol. 88 surprise a defendant that it is subject to suit in a forum state.28 Or, substantive contract law is an able vehicle for determining the effect of a forum selection clause.29 This redundancy has further complicated the project of discerning the purposes and scope of constitutional personal jurisdiction, but it has also muddied the waters of some of the other doctrines mentioned above. Perhaps, for example, it is forum non conveniens that is in need of rethinking, and not (only) personal jurisdiction.30 The overall effect, though, is worth noting. The redundancy of constitutional personal jurisdiction doctrine creates somewhat of a ping pong effect in which critics of one doctrine can point to the existence of the other in order to promote the demise of the disfavored doctrine. For example, it is reasonable to critique either forum non conveniens doctrine or personal jurisdiction doctrine for failing to properly or consistently allocate cases fairly or efficiently to different geographical forums. But shoring up those arguments by pointing to the other doctrine as “backup” has had the odd effect of bolstering the existence of both.
II. THE RELATIONSHIP BETWEEN THE DEVELOPMENT OF PERSONAL JURISDICTION AND FOREIGN SOVEREIGN IMMUNITY DOCTRINES This brings us to an important thread woven throughout Professor Wuerth’s Article, a story that deserves special attention. Running alongside Professor Wuerth’s elegant description of and argument about the constitutional status of foreign sovereigns as viewed through the lens of personal jurisdiction and due process, is the story of foreign sovereign immunity. As other scholars have already noted, the current law governing foreign sovereign immunity, the Foreign Sovereign Immunities Act of 1976 (FSIA), “muddles the traditional ways one thinks about subject matter jurisdiction, personal jurisdiction, and immunity.”31
28. Cf. Todd David Peterson, The Timing of Minimum Contacts, 79 GEO. WASH. L. REV. 101, 153 (2010) (criticizing the personal jurisdiction “notice of suit” theory as circular because of its dependence on the existence of jurisdiction in the first place and its relationship to the underlying substantive law). 29. The Supreme Court has increasingly favored a federal, procedural approach to the enforceability of forum selection clauses rather than a searching look at whether underlying state contract law would permit such enforcement. See generally Adam N. Steinman, Atlantic Marine Through the Lens of Erie, 66 HASTINGS L.J. 795 (2015) (arguing that, despite Supreme Court support for the enforcement of forum selection clauses, federal courts should defer to state law on this issue). 30. See Gardner, supra note 4, at 429 (suggesting that forum non conveniens is redundant with several existing doctrines including personal jurisdiction). 31. Linda J. Silberman & Aaron D. Simowitz, Recognition and Enforcement of Foreign Judgments and Awards: What Hath Daimler Wrought?, 91 N.Y.U. L. REV. 344, 369 (2016); see also Graham C. Lilly, Jurisdiction over Domestic and Alien Defendants, 69 VA. L. REV. 85, 120–22 (1983) (discussing the relationship between subject matter jurisdiction, personal jurisdiction, and foreign sovereign immunity).
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The question of whether and when foreign states (and their associated subdivisions or instrumentalities) are immune from suit in American courts has a history as long as that of personal jurisdiction. But because of the early structure and scope of each doctrine, the potential for overlap simply did not manifest itself until the modern era. I will return to the implications of this redundancy in Part III. What follows here is a brief outline of how foreign sovereign immunity has interacted and then overlapped with issues of jurisdiction.32 Sovereign immunity is actually a collection of doctrines that govern when a litigant can bring an action against a government, or a governmental agency or instrumentality.33 In the United States, the sovereign immunity of domestic sovereigns is governed by the U.S. Constitution and assorted statutes that waive immunity.34 The immunity of foreign sovereigns from suit is not governed by the Constitution.35 This absence, however, does not imply that foreign sovereign immunity is a new or exceptional doctrine. At the time of the founding, the litigation immunity of foreign sovereigns was well-recognized. Courts operated under the presumption that sovereign immunity applied unless the lawsuit fell into one of the established exceptions, such as consent.36 During the time period that roughly corresponds to the pre-Pennoyer era through International Shoe, the sovereign immunity of foreign states meant “absolute immunity.” Under absolute immunity, foreign governments that the U.S. deemed “friendly sovereigns” were granted the same absolute immunity as domestic sovereigns, and the executive branch, through the State Department, requested immunity in all actions against friendly sovereigns.37 Like the early personal jurisdiction doctrines, absolute immunity was grounded, in part, in international law principles of comity. Absolute immunity, which was fairly categorical and largely controlled by the executive branch, kept excessive litigation over the scope of foreign sovereign immunity at a relatively low level. Recall that the pre-Pennoyer
32. Much of this history is covered throughout Professor Wuerth’s Article. My goal here is to draw out this story for special consideration on its own terms. 33. Foreign sovereign immunity actually concerns both when foreign states are subject to suit and when actions to enforce judgments can be brought against them. For purposes of this Essay, I refer generally to immunity from suit. 34. U.S. CONST. amend. XI. See, e.g., N.Y. CT. CL. ACT §§ 8–12 (McKinney 2019) (waiving immunity and consenting to be sued pursuant to the requirements of the N.Y. Court of Claims Act); FLA. STAT. ANN. § 768.28(1) (West 2017) (waiving immunity for government entities in certain situations). 35. Sovereign immunity is currently governed by the Foreign Sovereign Immunities Act (FSIA), Pub. L. No. 94-583, 90 Stat. 2891 (codified as amended at 28 U.S.C. §§ 1330, 1332, 1391, 1441, 1602–1611 (2012)). 36. See The Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 125 (1812) (noting that in areas where “sovereignty is concerned,” there is no implied assent to a foreign court’s jurisdiction). 37. 15A Martin A. Redish, Moore’s Federal Practice § 104.02 (2019); Republic of Austria v. Altmann, 541 U.S. 677, 689 (2004) (noting that, until 1952, the Executive Branch followed a policy of requesting immunity in all actions against foreign sovereigns).
124 FORDHAM LAW REVIEW ONLINE [Vol. 88 and Pennoyer regimes of personal jurisdiction had a similar effect—litigation about the scope of constitutional personal jurisdiction coalesced around the Pennoyer exceptions. Thus, these two forces converged to minimize litigation of the larger questions concerning the scope of foreign sovereign immunity. Territorially centered bases of personal jurisdiction (both pre- and post-Pennoyer), would have seriously limited the number of cases that plaintiffs on American soil attempted to bring against foreign sovereigns and governments. Combined with the doctrine of absolute immunity, this legal landscape meant that courts did not confront these questions with the regularity that we have come to experience in the modern era. Just as personal jurisdiction changed significantly in the mid-twentieth century, so did foreign sovereign immunity. The legal, economic, and social conditions that led to these changes have been well-documented. In short, by the end of World War II, the United States was a modern, interconnected economy in which parties conducted more and more business and other activities at a distance and across state and international borders. A strict territorial jurisdictional regime proved frustrating, resulting in the twin due process revolutions of International Shoe, which established minimum contacts as the constitutional test for in personam jurisdiction, and Mullane v. Central Hanover Bank & Trust Co.,38 which governed the due process standard for notice. These cases significantly broadened a forum state’s ability to assert personal jurisdiction over absent defendants, particularly with regard to non-natural persons whose physical “presence” within a forum was difficult to articulate. Foreign sovereign immunity doctrine was also in need of reform because the theory of absolute immunity was becoming difficult to reconcile with the myriad ways in which foreign states and state-owned enterprises engaged in widespread commercial activity. In 1952, the State Department issued the “Tate Letter,” in which it informed the Attorney General that the State Department, in deciding whether to advise in favor of or against a grant of sovereign immunity, would abandon the absolute theory of sovereign immunity in favor of the “restrictive theory of sovereign immunity,” under which “the immunity of the sovereign is recognized with regard to sovereign or public acts (jure imperii) of a state, but not with respect to private acts (jure gestionis).”39 This shift aligned the United States with several other nations that had already adopted the restrictive theory. As the Second Circuit succinctly asserted: [t]he purpose of the restrictive theory of sovereign immunity is to try to accommodate the interest of individuals doing business with foreign governments in having their legal rights determined by the courts, with the
38. 339 U.S. 306. 39. Letter from Jack B. Tate, Acting Legal Adviser, Dep’t of State, to Philip B. Perlman, Acting Attorney Gen. (May 19, 1952), in 26 DEPT. OF STATE BULL. 984–85 (1952).
2019] DOCTRINAL REDUNDANCY AND THE TWO PARADOXES 125
interest of foreign governments in being free to perform certain political acts without undergoing the embarrassment or hindrance of defending the propriety of such acts before foreign courts.40 These mid-century changes, then, are of a piece, characterized by a recognition that the older, more rigid rules did not accord with modern economic reality. This new era of procedural due process and of restrictive sovereign immunity brought neither closure nor clarity to these doctrines. Within just a few years of International Shoe, the Supreme Court began its decades-long odyssey to define the scope and theoretical basis for the minimum contacts test and its relationship to due process.41 Restrictive sovereign immunity, for its part, was similarly volatile. The State Department purported to make its decisions of immunity recommendations based on the substantive criteria of restrictive immunity. In reality, however, many decisions continued to be politically motivated.42 Although the purpose of the new approach was to accommodate the changing economic
40. Victory Transp. Inc. v. Comisaria Gen., 336 F.2d 354, 360 (2d Cir. 1964). 41. See generally Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (holding that a defendant must have sufficient contact with the forum state in connection with the claim at bar for jurisdiction); Daimler AG v. Bauman, 571 U.S. 117 (2014) (holding that a subsidiary’s minimum contacts with a forum cannot be imputed to the parent company to obtain jurisdiction); J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011) (holding that the defendant must intend, through its actions, to submit to the power of the sovereign for jurisdiction to be proper); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (holding that a parent company’s minimum contacts with a forum state cannot by imputed to a subsidiary for purposes of obtaining jurisdiction and that, for a court to have general jurisdiction over a company, it must be “essentially at home in the forum State.”); Asahi Metal Indus. Co., Ltd. v. Superior Court, 480 U.S. 102 (1987) (holding that placing an item into the “stream of commerce” alone is insufficient to confer jurisdiction); Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) (holding that a contract alone was insufficient to confer jurisdiction, one must look at the circumstances holistically and determine the defendant purposefully targeted the forum); Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984) (holding that, because the plaintiff was injured every time a magazine was sold, jurisdiction was proper in all forums where the magazine was available); Calder v. Jones, 465 U.S. 783 (1984) (holding that intent to cause harm in the forum state is sufficient to grant jurisdiction); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) (holding that foreseeability of litigation in a forum state is insufficient without other contacts and introducing “fairness factors” for help in determining whether jurisdiction would be proper); Shaffer v. Heitner, 433 U.S. 186 (1977) (holding that the minimum contacts test also applies to in rem actions); Hanson v. Denckla, 357 U.S. 235 (1958) (holding that a plaintiff’s unilateral action is insufficient to confer jurisdiction over a defendant); McGee v. Int’l Life Ins. Co., 355 U.S. 220 (1957) (holding that one contact can be sufficient for personal jurisdiction depending on the circumstances). 42. Verlinden B.V. v. Cent. Bank of Nigeria 461 U.S. 480, 487 (1983) (the application of the restrictive theory “proved troublesome”); see also Clinton L. Narver, Putting the “Sovereign” Back in the Foreign Sovereign Immunities Act: The Case for a Time of Filing Test for Agency or Instrumentality Status, 19 B.U. INT’L L.J. 163, 169 (2001) (over time, “the State Department’s policy of making formal suggestions of immunity transformed the foreign sovereign immunity determination from a predominantly ‘legal’ determination into a predominantly ‘political’ determination wherein the Executive determined the rights of plaintiffs and foreign states alike on a case-by-case basis”).
126 FORDHAM LAW REVIEW ONLINE [Vol. 88 and legal realities of the twentieth century, restrictive immunity proved unwieldy.43 The difficulties in administering and adjudicating restrictive immunity culminated in the FSIA. Like the history of personal jurisdiction, the FSIA has been the subject of exhaustive scholarly consideration.44 In brief, the aim of the FSIA was to shift the process of determining foreign sovereign immunity to the federal courts,45 thus depoliticizing such decision-making,46 but codifying “for the most part . . . the restrictive theory of sovereign immunity.”47 The FSIA codified the main exceptions to foreign sovereign immunity: express and implied waiver,48 substantial commercial activity that is either conducted in or causes a direct effect in the United States,49 and an assortment of other exceptions including noncommercial torts, unlawful expropriation, and arbitration agreements.50 Since its passage in 1976, the FSIA has been amended and interpreted in a way that, in effect, narrows immunity and broadens the scope of claims for which foreign states (and their agencies and instrumentalities) are subject to suit.51 This narrowing of foreign sovereign immunity coincides with the late- twentieth-century era of personal jurisdiction in which the Supreme Court has, for the most part, developed an increasingly narrow approach to the scope of minimum contacts. This leads to the potentially troubling result that Professor Wuerth identifies in her Article: at the time when foreign states are the least protected by foreign sovereign immunity, they are left in a personal jurisdiction lurch because of the series of cases in which the Supreme Court and lower courts have held that foreign states are not persons within the meaning of the due process clauses for purposes of personal jurisdiction.52 This is not to suggest that the default norm should be that of protecting foreign sovereigns from suit. It does, however, raise troubling
43. See Andreas F. Lowenfeld, Claims Against Foreign States—a Proposal for Reform of United States Law, 44 N.Y.U. L. Rev. 901, 909–12 (1969). 44. See generally Lee M. Caplan, The Constitution and Jurisdiction over Foreign States: The 1996 Amendment to the Foreign Sovereign Immunities Act in Perspective, 41 VA. J. INT’L L. 369 (2001); William R. Dorsey, III, Reflections on the Foreign Sovereign Immunities Act After Twenty Years, 28 J. MAR. L. & COM. 257 (1997); Karen Halverson, Is a Foreign State a “Person”? Does it Matter?: Personal Jurisdiction, Due Process, and the Foreign Sovereign Immunities Act, 34 N.Y.U. J. INT’L L. & POL. 115, 119–29 (2001); Robert B. von Mehren, The Foreign Sovereign Immunities Act of 1976, 17 COLUM. J. TRANSNAT’L L. 33 (1978). 45. The FSIA also has a subject matter jurisdiction component, codified at 28 U.S.C. § 1330. 46. See Dames & Moore v. Regan, 453 U.S. 654, 685 (1981) (“The principal purpose of the FSIA was to codify contemporary concepts concerning the scope of sovereign immunity and withdraw from the President the authority to make binding determinations of the sovereign immunity to be accorded foreign states.”). 47. Verlinden, 461 U.S. at 488. 48. 28 U.S.C. § 1605(a)(1) (2019). 49. Id. § 1605(a)(2). 50. Id. § 1605(a)(5), (6). 51. Wuerth, supra note 6, at 640. 52. Wuerth, supra note 6, at 648–49.
2019] DOCTRINAL REDUNDANCY AND THE TWO PARADOXES 127 questions when foreign states, as a category, seem excluded from the baseline protections enjoyed by domestic and non-state foreign defendants alike.
III. FOREIGN SOVEREIGN IMMUNITY IN THE LARGER CONTEXT OF PERSONAL JURISDICTION REDUNDANCY Professor Wuerth identifies the primary contemporary reason for the exclusion of foreign states from the due process protections of personal jurisdiction, namely, that courts have refused to define foreign states as persons within the meaning of the Fifth and Fourteenth Amendments to the U.S. Constitution. The FSIA itself has a complicated relationship to both personal jurisdiction and subject matter jurisdiction.53 Although it governs when a foreign state is amenable to suit, personal jurisdiction must be established separately. The FSIA cannot create personal jurisdiction where it does not exist constitutionally. Her historical and doctrinal arguments that this conclusion is erroneous are thorough and provocative, particularly her argument that the structure and early understanding of the scope of judicial power under Article III of the Constitution extends to in personam jurisdictional power over foreign sovereigns. In this Essay, however, I want to highlight the role that personal jurisdiction redundancy plays in this story. The ways in which personal jurisdiction and foreign sovereign immunity are redundant of one another should, by now, be obvious. Each doctrine implicates, at some level, due process (or the lack thereof) and separation of powers.54 Each doctrine addresses, at least in part, restrictions on the amenability of a party to the jurisdiction of a territorial sovereign. Each doctrine has a historical tradition of allowing the party to consent. And, in each doctrine, courts and legislators have struggled to accommodate the competing considerations of modern commercial realities with limits of state territorial power. In fact, as one commentator has noted, the FSIA “nexus requirement usually ensures that assertions of personal jurisdiction under the FSIA satisfy due process requirements.”55 But, over the past four decades, consideration of each doctrine has been relatively siloed. The legislative and judicial expansion of the FSIA exceptions unfolded, for the most part, without explicit regard to the “foreign state” gap in personal jurisdiction into which many of these defendants would fall. Similarly, one would expect the judicial personal jurisdiction discourse, which has become so solicitous of the supposed horrors of territorial
53. See 15A Martin H. Redish, Moore’s Federal Practice § 104.06 (2019) (“The FSIA conflates the usually distinct questions of sovereign immunity, subject matter jurisdiction, and personal jurisdiction . . . .”). 54. Wuerth, supra note 6, at 680 (discussing “[t]he redundancy between separation of powers and due process” in the constitutional protection of foreign states). 55. Victoria A. Carter, God Save the King: Unconstitutional Assertions of Personal Jurisdiction Over Foreign States in U.S. Courts, 82 VA. L. REV. 357, 363 (1996).
128 FORDHAM LAW REVIEW ONLINE [Vol. 88 overreach, to be especially sensitive to the interests of foreign nations.56 But, as we have seen, the opposite has been true. I believe that this is due to implicit assumptions that arise from personal jurisdiction redundancy. There might be an unexamined or unstated belief that the question of the amenability of foreign states (as well as their agencies and instrumentalities) is not “really” a personal jurisdiction question at all, but solely a question of foreign sovereign immunity. This intuition is what gets clumsily translated into the argument that foreign states are not persons within the meaning of due process. And, of course, my argument here flies in the face of the several cases which hold that personal jurisdiction over foreign state defendants is a separate question to be answered after the determination that the defendant is not immune from suit under the FSIA. In other words, how could courts and commentators have an intuition that foreign sovereign immunity is the “real” limit on the amenability of foreign states to be sued in federal court when they simultaneously make explicit demands that the requirements of constitutional personal jurisdiction must also be fulfilled? There is not a satisfactory doctrinal or theoretical answer to this question (at least as of now) because the conundrum is born of a lack of clarity in the relationship between personal jurisdiction and any number of other doctrines including foreign sovereign immunity. The current gap that Professor Wuerth addresses in her Article is yet another example of the “ping pong” effect that I described earlier in which efforts to dilute, circumscribe, or eradicate one procedural doctrine are justified, at least in part, by reference to a different doctrine that should “really” be doing the work of the first. It is easy to cut foreign states out of personal jurisdiction with the vague notion that foreign sovereign immunity places appropriate limits on the amenability of foreign states to suit. And it is similarly easy to broaden the exceptions to the FSIA when there is solid precedent reminding courts and commentators that constitutional personal jurisdiction is a separate requirement. Aside from serving as an example of some of the problems that arise from redundancy in personal jurisdiction doctrine, there are a few other lessons about personal jurisdiction and foreign sovereign immunity that can be drawn from highlighting the parallel histories. First, both stories originate as old and accepted doctrines that predate the Constitution and have a common ancestor in international law principles of comity. But despite their ancient provenance, both doctrines have developed as reactions to actual and perceived changes in economic and political realities. In both doctrines, courts have struggled to articulate generally applicable principles that allow for the necessary exercise of jurisdictional authority over commercial and
56. Cf. Simowitz, supra note 13, at 362 (arguing that Congress should have the “power to interpret Due Process jurisdiction as it pertains to foreign persons” and that it “should be even greater . . . where foreign sovereigns and their instrumentalities are concerned”).
2019] DOCTRINAL REDUNDANCY AND THE TWO PARADOXES 129 other activities that have some connection to the forum state57 without rendering the idea of territorial jurisdiction itself obsolete. The parallel histories show the importance of relative baselines. By the 1980s, many jurists viewed the limits on constitutional personal jurisdiction as too lax and laid the doctrinal foundations for the restrictive doctrines that have emerged in the post-2011 cases. But during the same time period, lawmakers and judges viewed the FSIA as too restrictive, and sought to relax the restrictions on suing foreign states and, especially, their agencies and instrumentalities. The background condition of personal jurisdiction redundancy allowed both of these doctrinal paths to continue without a real dialogue about their mutual effects. Second, this juxtaposition is further evidence of the poor fit between personal jurisdiction and due process. If, as Professor Wuerth suggests, Congress should take a greater role in defining the due process content of the constitutional rights of foreign states,58 then it seems like foreign sovereign immunity, as codified in the FSIA, would be a natural place to start. It is, in fact, a comprehensive statute in which Congress has specified when foreign states should or should not be amenable to suit in the United States. A call to merge foreign sovereign immunity with constitutional personal jurisdiction is consistent with recent scholarship suggesting that the United States (rather than the individual states) is the relevant sovereign for cases brought in federal courts and that the Fifth Amendment is the relevant due process clause.59 As Professor Simowitz has observed, there is a relationship between the stubborn commitment to trans-substantivity in civil procedure and weak congressional involvement in regulating the scope of personal jurisdiction at the federal level, but he also suggests that “Congress has both the accountability and the expertise to craft substance specific rules,”60 and this would include rules for suing foreign sovereigns. Foreign sovereign immunity and the FSIA are emphatically not constitutional doctrines.61 If anything, courts typically mention due process in the FSIA context only to point out that it is a requirement that must be
57. Even if that connection is mostly the result of the plaintiff’s residence, see J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011) (finding that New Jersey state court lacked personal jurisdiction over claim brought by New Jersey resident for a workplace injury that took place in New Jersey), or unilateral conduct, see Hanson v. Denckla, 357 U.S. 235, 253 (1958) (“[t]he unilateral activity of those who claim some relationship with a nonresident defendant”); Walden v. Fiore, 571 U.S. 277 (2014) (affirming and broadening Hanson’s unilateral activity standard). 58. Wuerth, supra note 6, at 685; see also Simowitz, supra note 13, at 370. 59. See Jonathan Remy Nash, National Personal Jurisdiction, 68 EMORY L.J. 509, 522– 23 (2019) (developing a theory of Fifth Amendment due process protections for personal jurisdiction). 60. Simowitz, supra note 13, at 380. 61. Cf. Lori Damrosch, Foreign States and the Constitution, 73 VA. L. REV. 483, 522–23 (1987) (arguing that “foreign states are outsiders to the constitutional compact” and that “their relationship to the United States polity is quite different from that of aliens” who “can be compelled to comply with United States law”).
130 FORDHAM LAW REVIEW ONLINE [Vol. 88 separately satisfied62 and that the current weight of Supreme Court authority demands the conclusion that foreign states are not protected by due process.63 One possible answer is to stress, as do Professor Wuerth and others, that Congress has the power to regulate personal jurisdiction both as a statutory matter and as a matter of defining the due process scope of the doctrine. Another possible answer to this conundrum is to suggest that courts have been misguided in their assertions or assumptions that foreign sovereign immunity, if properly codified or applied, is itself not a satisfaction of due process. While it is already true that “the FSIA . . . does not relieve courts of the obligation of protecting the due process rights of foreign state defendants,”64 the decisions that Congress makes about the amenability of foreign states to suit could be viewed as a single answer to multiple questions, namely, (1) how has Congress chosen to codify foreign sovereign immunity?; (2) how has Congress chosen to affirmatively extend the personal jurisdiction authority of the United States as sovereign to foreign states?; and (3) how has Congress chosen to interpret the due process limits of personal jurisdiction over foreign states? To the extent that a unitary law addressing the amenability of foreign states to suit addresses all three questions, then due process is coextensive with foreign sovereign immunity, and it may even be possibly to imply this unification in a statute like the FSIA without Congress making the explicit connection.65 Professor Wuerth does not explicitly argue that congressionally codified foreign sovereign immunity is or could be coextensive with due process. However, her analysis does point in this direction. While I find this an intriguing possibility, I would retreat to the safer territory of asserting that this problem simply adds to the numerous arguments for why personal jurisdiction should probably be decoupled from due process.
CONCLUSION Personal jurisdiction redundancy is the result of the significant doctrinal overlap that I have documented in this brief Essay. Underlying this overlap are serious disagreements about the theories behind personal jurisdiction: sovereignty, liberty, territorial control, convenience, and fairness and reasonableness to the defendant, plaintiff, or both—not to say anything of the role that due process plays and the question of what due process even means. The Supreme Court does not appear poised to resolve these debates any time
62. See, e.g., Tex. Trading & Mill. Corp. v. Fed. Republic of Nigeria, 647 F.2d 300, 308 (2d Cir. 1981) (overruled by Frontera Res. Azerbaijan Corp. v. State Oil Co. of Azerbaijan Rep., 582 F.3d 393 (2d Cir. 2009)). 63. See Frontera Res., 582 F.3d at 395 (“the Due Process Clause’s protections should not apply to foreign states or their instrumentalities.”). 64. Carter, supra note 55, at 360. 65. However, the FSIA as currently drafted probably defies such implications. Although it does muddle jurisdiction and sovereign immunity, those doctrines are still distinct within the statute.
2019] DOCTRINAL REDUNDANCY AND THE TWO PARADOXES 131 soon. It might be possible, in the meantime, to patch a few holes where we can, and the gap between non-resident alien defendants, domestic defendants, and foreign state defendants might be one such place. Taking advantage of personal jurisdiction redundancy with foreign sovereign immunity might be a partial (or temporary) solution, in which a more robust understanding of what doctrines count as due process (perhaps a statute like the FSIA) and who is entitled to make such a constitutional interpretation (Congress) would fill the void of constitutional protection.
304 OCTOBER TERM, 1936.
Syllabus. 299 U. S. penses out of the assets in the hands of the liquidator, upon the ground that the court was without jurisdiction to make such an allowance, any right of the appellants inder the Federal Constitution has been infringed. The question is one of state practice and remedy. The mo- tions to dismiss the appeals are granted and the appeals are dismissed for the want of a substantial federal ques- tion. Iowa Central Ry. Co. v. Iowa, 160 U. S. 389, 393; Standard Oil Co. v. Missouri, 224 U. S. 270, 280, 281; McDonald v. Oregon Navigation Co., 233 U. S. 665, 669, 670; Gasquet v. Lapeyre, 242 U. S. 367, 369, 370; Enter- prise IrrigationDistrict v. Canal Co., 243 U. S. 157, 166. Dismissed.
MR. JUSTICE STONE took no part in the consideration or decision of this case.
UNITED STATES v. CURTISS-WRIGHT EXPORT CORP. ET AL.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
No. 98. Argued November 19, 20, 1936.-Decided December 21, 1936.
A Joint Resolution of May 28, 1934, provided: "That ii the President finds that the prohibition of the sale of arms and muni- tions of war in the United States to those countries now engaged in armed conflict in the Chaco may coL pibute to the regstablish- ment of peace between those countries, and if after consultation with the governments of other American Republics and with their cobperation, as well as that of such other governments as he may deem necessary, he makes proclamation to that effect, it shall be unlawful to sell, except under such limitations and exceptions as the President prescribes, any arms or munitions of war in any place in the United States to the countries now engaged in that armed conflict, or to any person, company, or association acting in the interest of either country, until otherwise ordered by the President or by Congress." Violation was made punishable as a U. S. v. CURTISS-WRIGHT CORP. 305
304 Syllabus.
crime. The President issued two proclamations, one on the date of the Resolution, putting it into operation; the other on No- vember 14, 1935, revoking the first proclamation. Held: (1) The Joint Resolution is not an unconstitutional delegation of legislative power to the Executive. Pp. 314, 329. (2) The powers of the Federal Government over foreign or external affairs differ in nature and origin from those over domestic or internal affairs. P. 315. (3) The broad statement that the Federal Government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field, the primary purpose of the Constitution was to carve from the general mass of legislative powers then possessed by the States such portions as it was thought desirable to vest in the Federal Government, leav- ing those not included in the enumeration still in the States. Id. (4) The States severally never possessed international powers. P. 316. (5) As a result of the separation from Great Britain by the Colonies, acting as a unit, the powers of external sovereignty passed from the Crown, not to the Colonies severally, but to the Colonies in their collective and corporate capacity as the United States of America. Id. (6) The Conslitution was ordained and established, among other things, to form "a more perfect Union." Prior to that event, the Union, declared by the Articles of Confederation to be "per- petual," was the sole possessor of external sovereignity, and in the Union it remained without change save in so far as the Con- stitution in express terms qualified its exercise. Though the States were several their people in respect of foreign affairs were one. P. 317. (7) The investment of the Federal Government with the powers of external sovereignty did not depend upon .the affirmative grants of the Constitution. P. 318. (8) In the international field, the sovereignty of the United States is complete. Id. (9) In international relations the President is the sole organ of the Federal Government. P. 319. (10) In view of the delicacy of foreign relations and of the power peculiar to the President in this regard, Congressional legis- lation which is to be made effective in the international field must OCTOBER TERM, 1936.
Argument for the United States. 299 U. S.
often accord to him a degree of discretion and freedom which would not be admissible were domestic affairs alone involved. P. 319. (11) The marked difference between foreign and domestic affairs, in this respect, is recognized in the dealings of the houses of Congress with executive departments. P. 321. (12) Unbroken legislative practice from, the inception almost of the national government supports the conclusion that the Joint Resolution, supra, is not an unconstitutional delegation of power. P. 322. (13) Findings of jurisdictional facts in the first proclamation, following the language of the Joint Resolution, were sufficient. P. 330. (14) The revocation of the first proclamation by the second did not have the effect of abrogating the Resolution or of pre- cluding its enforcement by prosecution and punishment of offenses committed during the life of the first proclamation. P. 331. 2. Upon an appeal by the United States under the Criminal Appeals Act from a decision holding an indictment bad on demurrer, this Court has jurisdiction of questions involving the validity of the statute on which the indictment was founded which were decided by the District Court in favor of the United States. P. 329. 14 F. Supp. 230, reversed. APPEAL, under the Criminal Appeals Act, from a judg- ment quashing an indictment for conspiracy.
Mr. Mdrtin Conboy, with whom Solicitor General Reed, Assistant Attorney General McMahon, and Messrs. Wil- liam W. Barron and CharlesA. Horsky were on the brief, for the United States. There is no unconstitutional delegation of legislative power. From the beginning of the Government like delegations have been customary in the field of foreign relations. The policy of Congress is clearly stated; the standards axe simple and definite; and a finding by the President is required. The case is controlled by Hampton & Co. v. United States, 276 U. S. 394, and Field v. Clark, 143 U. S. 649. U. S. v. CURTISS-WRIGHT CORP.
304 Argument for Appellees.
The objection that the President is allowed to make simply an estimate of the future efficacy of the law rather than a finding of present facts rests upon a misconstruc- tion of the Resolution, which requires the finding of a present fact, viz., whether the prohibition on arms will contribute to reestablishment of peace in the Chaco now. Delegations of power to make present determinations of future effect are commonly upheld, e. g., in rate-cases. The other grounds urged below in support of the de- murrer, and overruled by the District Court, are not prop- erly before this Court under the Criminal Appeals Act. In any event, they are without merit. By his proclama- tion the President complied with every requirement of the Resolution, making all findings of fact that were necessary. Nor did the second proclamation, revoking the first, terminate liability for offenses committed in the interim. The authority for the prosecution is the Resolution, not repealed. Moreover, even if the proclamation can be con- sidered as a repeal of the Resolution, the prosecution is authorized by R. S., § 13.
Mr. George Z. Medalie, with whom Messrs. J. Edward Lumbard, Jr., and Theodore S. Hope, Jr., were on the brief, for John S. Allard et al., appellees. The Joint Resolution attempts an invalid delegation in at least four respects. First, its going into operation is made dependent upon the President's determination whether it may have the capacity to bring about the result desired by the Congress, to-wit, the restablishment of peace in the Chaco. Second, its going into operation is further conditioned upon the President's uncontrolled discretion. Third, it delegates to the President a power to repeal the Resolution which is co6rdinate with that of the Congress itself. Fourth, it grants to the President the power to except from and limit the statutory prohibi- OCTOBER TERM, 1936.
Argument for Appelles. 299 1T. S. tion, as he may see fit, guided by no rule or standard whatsoever. The proclamation which was designed to put the Reso- lution into operation was ineffectual, because of the Pres- ident's falure to find essenlial jurisdictional facts. The acts charged in the indictment are no longer an offense against the laws of the United States. The prose- cution is not saved by R. S., § 13 and there is no other saving clause. This Court may conisider all grounds urged in support of the judgment which go to the validity or construction of' the Joint Resolution.
Mr. William Wallace, with whom Mr. Robert D. Shea was on the brief, for the Curtiss-Wright Export Corp. et al., appellees. The Criminal Appeals Act permits consideration on this appeal of any ground of invalidity in addition to the one upon which the court below sustained the demurrers. United States v. Bitty, 208 U. S. 398, 400; United States v. Biggs, 211 U. S. 507, 522; United States v. Keitel, 211 U. S. 370, 398; United States v. Kissel, 218 U. S. 606; United States v. Americani Railway Express Co., 265 U. S. 425, 435; Langnes v. Green, 282 U. S. 531, 538; United States v. Hastings, 296 U. S. 188; United States v. Nixon, 235 U. S. 231; United States v. Shreveport Grain Co., 287 U. S. 77; United States v. Mescall, 215 U. S. 26, 31. The Joint Resolution was invalid because it was not to go into operation until after an optiomal proclama- tion which the President might never make. Making or refusing to make a law is essentially a legislative function which may not be delegated or surrendered by the Con- gress. Mutual Film Corp. v. Ohio Industrial Comn'n, 236 U. S. 245; Panama Refining Co. v. Ryan, 293 U. S. 388; Schechter Poultry Corp. v. United States, 295 U. S. 495, 538. U. S. v. CURTISS-WRIGHT CORP.
304 Argument for Appellees.
Some of the cases relied on by the Government, like Hampton & *Co.v. United States, 276 U. S. 394; Field v. Clark, 143 U. S. 649, are 'under tariff acts Others deal with powers confided to the Interstate Commerce Com- mission on rate regulations, etc. (Louisville & N. R. Co. v. Garrett, 231 U. S. 298; Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362; New York Central Securities Co. v. United States, 287 U. S. 12; see also, Knoxville v. Knox- ville Water Co., 212 U. S. 1). Still others have to do with control of the radio, film and similar industries. (Federal Radio Comm'n v. Nelson Bros. Co., 289 U. S. 266; Mutual Film Corp. v. Ohio Industrial Comm'n, 236 U. S. 245; see also, Pacific States Box & Basket Co. v. White, 296 U. 5. 176.) One deals with the functions of the Secretary of War, confided to him under the constitu- tional power to control navigable waters. (Union Bridge Co. v. United States, 204 U. S. 364.) In all those cases the question arose under legislation already in operation 'and with respect to delegation of power over administrative details incident to its enforce- ment. No one of them involved a determination of a condition upon the happening of which a law not yet in effect was or was nof to be put into operation. Distinguishing alsi: The Aurora, 7 Cranch 382; United States v. Chavez, 228 U. S. 525; United States v. Mesa, 228 U. S. 533; Talbott v. United States, 208 Fed. 144, cert. den., 232 U. S. 722; and United States v. Lucas, 6 F. (2d) 327. Cf. Langworth v. Kadel, 141 Kan. 256. In the present case, the President was under no com- pulsion to issue his Proclamation unless he should choose to do so. It seems clear that under the principle of the Field and Panama cases, such lack of explicit directions and mandatory force is fatal to the validity of the Reso- lution. The Resolution is invalid because its duration, if ever it went into operation, was left likewise to the uncon- trolled discretion of the President. OCTOBER TERM, 1936.
Argument for Appellees. 299 U. S.
The power to prescribe limitations and exceptions in- validates the Resolution. The prohibition of the sale of arms and munitions never went into effect because the President failed to comply with the conditions prescribed by the Joint Reso- lution. While the courts will not investigate the manner in which the President or any other high official has car- ried out an executive or administrative function (Phila- delphia & Trenton Ry. v. Stimpson, 14 Pet. 448), the rule has no application where a delegation of legislative power is involved. Panaima Refining Co. v. Ryan, 293 U. S. 388, 433. The rule is well established (Wichita Railroad & Light Co. v. Public Utilities Cornm'n, 260 U. S. 48, 59; Mahler v. Eby, 264 U. S. 32, 44) that, where legislative power has been delegated, not only a substantial compliance with the conditions laid down by the legislative body is required, but also an affirmative showing that this has been done. From the proclamation it appears that the President consulted with the Governments of other American Re- publics and that he secured assurances of the coS1peratioti of such Governments as he deemed necessary. There is no express declaration-no affirmative stateinieiit-that "such Governments as I have deemed necessary" included any American Republic. The phrase "as contemplated by the said Joint Resolu- tion" is not sufficient to indicate unequivocally that the President was asserting a full compliance. But even if the proclamation be construed as asserting such compliance in general terms, or as a conclusion of the President, this would not resolve the difficulty. The broader underlying question would still remain, whether such a general phrase amounts to an affirmative showing of compliance. This Court has held otherwise in Mahler v. Eby, supra. U. S. v. CURTISS-WRIGHT CORP.
304 Opinion of the Court.
The Joint Resolution is not presently valid, or alive for the purpose of sustaining prosecution for offenses here- tofore committed thereunder. The Joint Resolution was intended as a temporary pro- vision, to be in force during the period between the first proclamation putting the prohibition into effect, and the later proclamation removing it. It was to be effective "until otherwise ordered by the President or by Con- gress." That time lmit was reached when the revoking proclamation was issued: Having then expired, no fur- ther judicial proceedings could be had thereunder, unless competent authority had kept it alive for that purpose. Yeaton v. United States, 5 Cranh 281, 283-4; United States v. Chambers, 291 U. S. 207; The Rachel, 6 Cranch 329.. Revised Statutes, § 13, by its terms, is applicable only where a statute has been "repealed." The word "repeal" means the abrogation of one statute by another statute. Mr. Neil P. Cullom was on the brief for Barr Shipping Corp. et al., appellees. MR. JUSTICE SUTHERLAND delivered the opinion of the Court. On January 27, 1936, an indictment vas returned in the court below, the first 'count of which charges that appel- lees, beginning with the 29th day of May, 1934, conspired to sell in the United States certain arms of war, namely fifteen machine guns, to Bolivia, a country then engaged in armed conflict in the Chaco, in violation of the Joint Resolution of Congress approved May 28, 1934, and the provisions of a proclamation issued on the same day by the President of the United States pursuant to authority conferred by § 1 of the resolution. In pursuance of the conspiracy, the commission of certain overt acts was alleged, details of which need not be stated. The Joint Resolution (c. 365, 48 Stat. 811) follows: ,312 OCTOBER TERM, 1936.
Opinion of the Court. 299 U. S.
"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That if the President finds that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace be- tween those countries, and if after consultation with the governments of other American Republics and with their co6peration, as well as that of such other governments as he may deem necessary, he makes proclamation to that effect, it shall be unlawful to sell, except under such limi- tations and exceptions as the President prescribes, any arms or munitions of war in any place in the United States to the countries now engaged in that armed con- flict, or to any person, company, or association acting in the interest of either country, until otherwise ordered by the President or by Congress. "See. 2. Whoever sells any arms or munitions of war in violation of section 1 shall, on conviction, be punished by a fine not exceeding $10,000 or by imprisonment not exceeding two years, or both." The President's proclamation (48 Stat. 1744). after re- citing the terms of the Joht Resolution, declares: "Now, therefore, I, Franklin D. Roosevelt, Presi- dent of the United States of America, acting under all(I by virtue of the authority conferred in me by the said joint resolution of Congress, do hereby declare and pro- claim that I have found that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace be- tween those countries, and that I have consulted with the governments of other American Republics and have been assured of the cobperation of such governments as I have deemed necessary as contemplated by the said joint reso- lution; and I do hereby admonish all citizens of the U. S. v. CURTISS-WRIGHT CORP.
304 Opinion of the Court.
United States and every person to abstain from every vio- lation of the provisions of the joint resolution above set forth, hereby made applicable to Bolivia and Paraguay, and I do hereby warn them that all violations of such pro- visions will be rigorously prosecuted. "And I do hereby enjoin upon all officers of the United States'charged with the execution of the laws thereof, the utmost diligence in preventing violations of the said joint resolution and this my proclamation issued thereunder, and in bringing to trial and punishment any offenders against the same. "And I do hereby delegate to the Secretary of State the power of prescribing exceptions and limitations to the application of the said joint resolution of May 28, 1934, as made effective by this my proclamation issued there- under." On November 14, 1935, this proclamation was revoked (49 Stat. 3480), in the following terms: "Now, therefore, I, Franklin D. Roosevelt, Presi- dent of the United States of America, do hereby declare and proclaim that I have found that the prohibition ,of the sale of arms and munitions of war in the United States to Bolivia or Paraguay will no longer be necessary as a contribution to the reestablishment of peace between those countries, and the above-mentioned Proclamation of May 28, 1934, is hereby revoked as to the sale of arms and munitions of war to Bolivia or Paraguay from and after November 29, 1935, provided, however, that this action shall not have the effect of releasing or extinguish- ing any penalty, forfeiture or liability incurred under the aforesaid Proclamation of May 28, 1934, or the Joint Resolution of Congress approved by the President on the same date; and that the said Proclamation and Joint Res- olution shall be treated as remaining in force for the pur- pose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability." OCTOBER TERM, 1936.
Opinion of the Court. 299 U. S.
Appellees severally demurred to the first count of the indictment on the grounds (1) that it did not charge facts sufficient to show the commission by appellees of any offense against any law of the United States; (2) that this count of the indictment charges a conspiracy to violate the joint resolution and the Presidential procla- mation, both of which had expired according to the terms of the joint resolution by reason of the revocation con- tained in the Presidential proclamation of November 14, 1935, and were not in force at the time when the indict- ment was found. The points urged in support of the demurrers were, first, that the joint resolution effects an invalid delegation of legislative power to the executive; second, that the joint resolution never became effective because of the failure of the President to find essential jurisdictional facts; and third, that the second proclama- tion operated to put an end to the alleged liability under the joint resolution'. The court below sustained the demurrers upon the first point, but overruled them on the second and third points. 14 F. Supp. 230. The government appealed to this court under the provisions of the Criminal Appeals Act of March 2, 1907, 34 Stat. 1246, as amended, U. S. C. Title 18, § 682. That act authorizes the United States to appeal from a district court direct to this court in criminal cases where, among other things, the decision sustaining a demurrer to the indictment or any count thereof is based upon the invalidity or construction of the statute upon which the indictment is' founded. First. It is contended that by the Joint Resolution, the going into effect and continued operation of the reso- lution was conditioned (a) upon the President's judg- ment as to its beneficial effect upon the reestablishment of peace between the countries engaged in armed con- flict in the Chaco; (b) upon the making of a proclama, U. S. v. CURTISS-WRIGHT CORP.
304 Opinion of the Court. tion, which was left to his unfettered discretion, thus constituting an attempted substitution of the President's will for that of Congress; (c) upon the making of a proclamation putting an end to the operation of the reso- lution, which again was left to the President's unfettered discretion; and (d) further, that the extent of its opera- tion in particular cases was subject to limitation and ex- ception by the President, controlled by no standard. In each of these particulars, appellees urge that Congress abdicated its essential functions and delegated them to the Executive. Whether, if the Joint Resolution had related solely to internal affairs it would be open to the challenge that it constituted an unlawful delegation of legislative power to the Executive, we find it unnecessary to determine. The whole aim of the resolution is to affect a situation entirely external to the United States, and falling within the cate- gory of foreign affairs. The determination which we are called to make, therefore, is whether the Joint Resolu- tion, as applied to that situation, is vulnerable to attack under the rule that forbids a delegation of the law-mak- ing power. In other words, assuming (but not deciding) that the challenged delegation, if it were confined to in- ternal affairs, would be invalid, may it nevertheless be sustained on the ground that its exclusive aim is to afford a remedy for a hurtful condition within foreign territory? It will contribute to the elucidation of the question if we first consider the differences between the powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs. That there are differences between them, and that these differ- ences are fundamental, may not be doubted. The two classes of powers are different, both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except 316 OCTOBER TERM, 1936.
Opinion of the Court. 299 U. S. those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field, the primary purl -se of the Constitution was to carve from the general mass of legislative powers then possessed by the states such portions as it was thought desirable to vest in the federal government, leaving those not inciudcd in the enumeration still in the states. Carter v. Carter Coal Co., 298 U. S. 238, 294. That this doctrine applies only to powers which the states had, is self evident. And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source. During the colonial period, those powers were possessed exclusively by and were entirely under the control of the Crown. By the Declaration of Independence, "the Representatives of the United States of America" declared the United [not the several] Colonies to be free and independent states, and as such to have "full Power to levy War, conclude Peace, contract Alliances, establish Commerce and to do all other Acts and Things which Independent States may of right do." As a result of the separation from Great Britain by the colonies acting as a unit, the powers of external sover- eignty passed from the Crown not to the colonies sever- ally, but to the colonies in their collective and corporate capacity as the United States of America. Even before the Declaration, the colonies were a unit in foreign affairs, acting through a common agency-namely the Conti- nental Congress, composed of delegates from the thirteen colonies. That agency exercised the powers of war and peace, raised an army, created a navy, and finally adopted the Declaration of Independence. Rulers come and go; governments end and forms of government change; but sovereignty survives. A political soc'ety cannot endure U. S. v. CURTISS-WRIGHT CORP.
304 Opinion of the Court. without a supreme will somewhere. Sovereignty is never held in suspense. When, therefore, the external sov- ereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union. See Peinhallow v. Doane, 3 Dall. 54, 80-81. That fact was given practical application almost at once. The treaty of peace, made on September 23, 1783, was concluded between his Brit- tanic Majesty and the "United States of America." 8 Stat.-European Treaties-80. The Union existed before the Constitution, which was ordained and established among other things to form "a more perfect Union." Prior to that event, it is clear that the Union, declared by the Articles of. Confederation to be "perpetual," was the sole possessor of external sov- ereignty and in the Union it remained without change save in so far as the Constitution in express terms quali- fied its exercise. The Framers' Convention was called and exerted its powers upon the irrefutable postulate that though the states were several their people in respect of foreign affairs were one. Compare The Chinese Exclu- sion Case, 130 U. S. 581, 604, 606. In that convention, the entire absence of state power to deal with those affairs was thus forcefully stated by Rufus King: "The states were not 'sovereigns' in the sense contended for by some. They did not possess the peculiar features of sovereignty,-they could not make war, nor peace, nor alliances, nor treaties. Conside' ing them as political be- ings, they were dumb, for they could not speak to any foreign sovereign whatever. They were deaf, for they could not hear any propositions from such sovereign. They had not even the organs or fatculties of defence or offence, for they could not of themselves raise troops, or equip vessels, for war." 5 Elliott's Debates 212.1 'In general confirmation of the foregoing views, see 1 Story on the Constitution, 4th ed., §§ 198-217, and especially §§ 210, 211, 213, 214, 215 (p. 153), 216. OCTOBER TERM, 1936. Opinion of the Court. 299 U. S. It results that the investment of the. federal govern- ment with the powers of external sovereignty did not de- pend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality. Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens (see American Banana Co. v. United Fruit Co., 213 U. S. 347, 356); and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the prin- ciples of international law. As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign. The power to acquire territory by discovery and occupation (Jones v. United States, 137 U. S. 202, 212), the power to expel undesirable aliens (Fong Yue Ting v. United States, 149 U. S. 698, 705 et seq.), the power to make such interna- tional agreements as do not constitute treaties in the constitutional sense (Altman & Co. v. United States, 224 U. S. 583, 600-601; Crandall, Treaties, Their Making and Enforcement, 2d ed., p. 102 and note 1), none of which is expressly affirmed by the Constitution, nevertheless exist as inherently inseparable from the conception of nation- ality. This the court recognized, and in each of the cases cited found the warrant for its conclusions not in the pro- visions of the Constitution, but in the law of nations. In Burnet v. Brooks, 288 U. S. 378, 396, we said, "As a nation with all the attributes of sovereignty, the United States is vested with all the powers of government neces- sary to maintain an effective control of international re- lations." Cf. Carter v. Carter Coal Co., supra, p. 295. U. S. v. CURTISS-WRIGHT CORP. •319
304 Opinion of, the Court.
Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, deli- cate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; *buthe alone negotiates. Into the field of negotia- tion the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representa- tives, "The President is the sole organ of the nation in its extirnal relations, and its sole representative with foreign nations." Annals, 6th Cong., col. 613. The Senate Com- mittee on Foreign Relations at a very early day in our history (February 15, 1816), reported to the Senate, among other things, as follows: "The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. For his conduct he is responsible to the Constitution. The committee con- sider this responsibility the surest pledge for the faithful discharge of his duty. They think the interference of the Senate in the direction of foreign negotiations calculated to diminish that responsibility and thereby to impair the best security for the national safety. The nature of transactions with foreign nations, moreover, requires cau- tion and unity of design, and their success frequently de- pends on secrecy and dispatch." U. S. Senate, Reports, Committee on Foreign Relations, vol. 8, p. 24. It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an 320 OCTOBER TERM, 1936.
Opinion of the Court. 299 U. S.
exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations-a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other govern- mental power, must be exercised in subordination to the applicable provisions of the Constitution. It is quite ap- parent that if, in the maintenance of our international relations, embarrassment-perhaps serious embarrass- ment-is to be avoided and success for our aims achieved, congressional leg; ' ion which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of dis- cretion and freedom from statutory restriction which would not be admissible were domestic affairs alone in- volved. Moreover, he, not Congress, has the better op- portunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature dis- closure of it productive of harmful results. Indeed, so clearly is this true that the first President refused to accede to a request to lay before the House of Represen- tatives the instructions, correspondence and documents relating to the negotiation of the Jay Treaty-a refusal the wisdom of which was recognized by the House itself and has never since been doubted. In his reply to the request, President Washington said: "The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and even when brought to a conclusion a full disctosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely U. S. v. CURTISS-WRTGHT CORP.
304 Opinion of the Court. impolitic; for this might have a pernicious muence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which that body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent." 1 Messages and Papers of the Presidents, p. 194. The marked difference between foreign affairs and do- mestic affairs in this respect is recognized by both houses of Congress in the very form of their requisitions for in- formation from the executive departments. In the ease of every department except the Department of State, the resolution directs the official to furnish the informa- tion. In the case of the State Department, dealirg with foreign affairs, the President is requested to furnish the information "if not incompatible with the public inter- est." A statement that to furnish the information is not' compatible with the public interest rarely, if ever, is questioned. When the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator properly bears in mind the important consideration that the form of the Presi- dent's action-or, indeed, whether he shall act at all- may well depend, among other things, upon the nature of the confidential information which he has or may there- after receive, or upon the effect which his action may have upon our foreign relations. This consideration, in con- nection with what we have already said on the subject, discloses the unwisdom of requiring Congress in this field OCTOBER TERM, 1936. Opinion of the Court. '299 U. S. of governmental power to lay down narrowly definite standards by which the President is to be governed. As this court said in Mackenzie v. Hare, 239 U. S. 299, 311, "As a government, the United States 'is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrassingsuch powers." (Italics supplied.) In the light of the foregoing observations, it is evident that this court should not be in haste to apply a general rule which will have the effect of condemning legislation like that under review as constituting an unlawful dele- gation of legislative power. The principles which justify such legislation find overwhelming support in the un- broken legislative practice which has prevailed almost from the inception of the national government to the present day. Let us examine, in chronological order, the acts of legis- lation which warrant this conclusion: The Act of June 4, 1794, authorized the President to lay, regulate and revoke embargoes. He was "author- ized" "whenever, in his opinion, the public safety shall so require" to lay the embargo upon all ships and vessels in the ports of the United State6, including those of foreign nations "under such regulations as the circumstances of the case may require, and to continue or revoke the same, whenever he shall think proper." C. 41, 1 Stat. 372. A 'prior joint resolution of May 7, 1794 (1 Stat. 401), had conferred unqualified power on the President to grant clearances, notwithstanding an existing embargo, to ships or vessels belonging to citizens of the United States bound to any port beyond the Cape of Good Hope. The Act of March 3, 1795 (c. 53, 1 Stat. 444), gave the President authority to permit the exportation of arms, cannon and military stores, the law prohibiting such ex- U. S. v. CURTISS-WRIGHT CORP.
304 Opinion of the Court. ports to the contrary notwithstanding, the only pre- scribed guide for his, action being- that such exports should be in "cases connected with the security of the commercial interest of the United States, and for public purposes only." By the Act of June 13, 1798 (c. 53, § 5, 1 Stat. 566), it was provided that if the government of France "shall clearly disavow, and shall be found to refrain from the aggressions, depredations and hostilities" theretofore maintained against vessels and property of the citizens of the United States, "in violation of the faith of treaties, and the laws of nations, and shall thereby acknowledge the just claims of the United States to be considered as in all respects neutral, . . . it shall be lawful for the President of the United States, being well ascertained of the premises, to remit and discontinue the prohibitions and restraints hereby enacted and declared; and he shall be, and is hereby authorized to make proclamation thereof accordingly." By § 4 of the Act of February 9, 1799 (c. 2, 1 Stat. 615), it was made "lawful" for the President, "if he shall deem it expedient and consistent with the interest of the United States," by order to remit certain restraints and prohibitions imposed by the act with respect to the French Republic, and also to revoke any such order "whenever, in his opinion, the interest of the United States shall require." Similar authority, qualified in the same way, was con- ferred by § 6 of the Act of February 7, 1800, c. 10, 2 Stat. 9. Section 5 of the Act of March 3, 1805 (c. 41, 2 Stat. 341), made it lawful for the President, whenever an armed vessel entering the harbors or waters within the jurisdiction of the United States and required to depart therefrom should fail to do so, not only to employ the land and naval forces to compel obedience. but "if he 324 OCTOBER TERM, 1936.
Opinion of the Court. 299 U. S. shall think it proper, it shall be lawful for him to forbid, by proclamation, all intercourse with such vessel, and with every armed vessel of the same nation, and the officers and crew thereof; to prohibit all supplies and aid from being furnished them" and to do various other things connected therewith. Violation of the President's proclamation was penalized. On February 28, 1806, an act was passed (c. 9, 2 Stat. 351) to suspend commercial intercourse between the United States and certain parts of the Island of St. Do- mingo. A penalty was prescribed for its violation. Not- withstanding the positive provisions of the act, it was by § 5 made "lawful" for the President to remit and discon- tinue the restraints and prohibitions imposed by the act at any time "if he shall deem it expedient and consistent with the interests of the United States" to do so. Like- wise in respect of the Non-intercourse Act of March 1, 1809, (c. 24, 2 Stat. 528); the President was "authorized" (§ 11, p. 530), in case either of the countries affected should so revoke or modify her edicts "as that they shall cease to violate the neutral commerce of the United States," to proclaim the fact, after which the suspended trade might be renewed with the nation so doing. Practically every volume of the United States Statutes contains one or more acts or joint resolutions of Congress authorizing action by the President in respect of subjects affecting foreign relations, which either leave the exer- cise of the power to his unrestricted judgment, or provide a standard far more general than that which has always been considered requisite with regard to domestic affairs. Many, though not all, of these acts are designated in the footnote.' 'Thus,.the President has been broadly "authorized" to suspend em- bargo acts passed by Congress, "if in his judgment the public interest should require it" (Act of December 19, 1806, c. 1, § 3, 2 Stat. 411), or if, "in the judgment of the President," there has been such suspen- U. S. v.-CURTISS-WRIGHT CORP. 325
304 Opinion of the Court.
It well may be assumed that these legislative prece- dents were in mind when Congress passed the joint reso- lutions of April 22, 1898, 30 Stat. 739; March 14, 1912, 37 Stat. 630; and January 31, 1922, 42 Stat. 361, to prohibit the export of coal or other var material. The resolution of 1898 authorized the President "in his discretion, and with such limitations and exceptions as shall seem to him expedient" to prohibit such exportations. The striking identity of language found in the second resolution men- tioned above and in the one now under review will be sion of hostilities abroad as may render commerce of the United States sufficiently safe. Act of April 22, 1808, c. 52, 2 Stat. 490. See, also, Act of March 3, 1817, c. 39, § 2, 3 Stat. 361. Compare, but as to reviving an embargo act, the Act of May 1, 1810, c. 39, § 4, 2 Stat. 605. Likewise, Congress has passed numerous acts laying tonnage and other duties on foreign ships, in retaliation for duties enforced on United States vessels, but providing that if the President should be satisfied that the countervailing duties were repealed or abolished, then he might by proclamation suspend the duties as to vessels of the nation so acting. Thus, the President has been "authorized" to proclaim the suspension. Act of January 7, 1824, c. 4, § 4, 4 Stat. 3; Act of May 24, 1828, c. 111, 4 Stat. 308; Act of July 24, 1897, c. 13, 30 Stat. 214. Or it has been provided that the suspension should take, effect whenever the President "shall be satisfied" that the discriminat-' ing duties have been abolished. Act of March 3, 1815, c. 77, 3 Stat. 224; Act of May 31, 1830, c. 219, § 2, 4 Stat. 425. Or that the President "may direct" that the tonnage duty shall cease to be levied in such circumstances. Act of July 13, 1832, c. 207, § 3, 4 Stat. 578. And compare Act of June 26, 1884, c. 121, § 14, 23 Stat. 53, 57. Other acts, for retaliation against discriminations as to United States commerce, have placed broad powers in the hands of the Presi- dent, "authorizing" even the total exclusion of vessels of any foreign country so offending (Act of June 19, 1886, c. 421, § 17, 24 Stat. 79, 83), or the increase of duties on its goods or their total exclusion from the United States (Act of June 17, 1930, c. 497, § 388, 46 Stat. 590, 704), or the exclusion of its goods or the detention, in certain circumstances, of its vessels, or the exclusion of its vessels or nationals from privileges similar to those which it has denied to citizens of the .Urited States (Act of September 8, 1916, c. 463, §§ 804-806, 39 Stat. 326 OCTOBER TERM, 1936.
Opinion of the Court. 299"U. S. seen upon comparison. The resolution of March 14, 1912, provides: "That whenever the President shall find that in any American country conditions of dowestic violence exist which are promoted b the use of arms or munitions of war procured from the United States, and shall make proclamation thereof, it shall be unlawful to export ex- cept under such limitations and exceptions as the Presi-
756, 799-800). As to discriminations by particular countries, it has been made lawful for the President, by proclamation, which he "may in his discretion, apply . . . to any part or all" of the subjects named, to exclude certain goods of the offending country, or its vessels. Act of March 3, 1887, c. 339, 24 Stat. 475. And compare- Act of July 26, 1892, c. 248, 27 Stat. 267. Compare, also, authority given the Postmaster General to reduce or enlarge rates of foreign postage, among other things, for the purpose of counteracting any adverse measures affecting our postal intercourse with foreign coun- tries. Act of March 3, 1851, c. 20, § 2, 9 Stat. 587, 589. The President has been "authorized" to suspend an act providing for the exercise of judicial functions by ministers, consuls and other officers of the United States in the Ottoman dominions and Egypt whenever he "shall receive satisfactory information" that the govern- ments concerned have organized tribunals likely to secure to United States citizens the same impartial justice enjoyed under the judicial functions exercised by the United States officials. Act of March 23, 1874, c. 62, 18 Stat. 23. Congress has also passed acts for the enforcement of treaties or conventions, to be effective only upon proclamation of the President. Some of them may. be noted which "authorize" the President to make proclamation when he shall be "satisfied" or shall receive "satisfactory evidence" that the other nation has complied: Act of August 5, 1854, c. 269, §§ 1, 2, 10 Stat. 587; Act of March 1, 1873, c. 213, §§ 1, 2, 17 Stat. 482; Act of 'August 15, 1876, c. 290, 19 Stat. 200; Act of December 17, 1903, c. 1, §'1, 33 Stat. 3. Cf. Act of June 11, 1864, c. 116, § 1, 13 Stat. 121; Act of February 21, 1893, c. 150, 27 Stat. 472. / Where appropriate, Congress has provided that violation of the President's proclamations authorized by the foregoing acts shall be penalized. See, e. g., Act of June 19, 1886; Act of March 3, 1887; Act'of September 8, 1916; Act. of June 17, 1930-all supra. U. S. v. CURTISS-WRIGEtT CORP.
304 Opinion of the Court. dent shall prescribe any arms or munitions of war fr9m any place in the United States to such country until otherwise ordered by the President or by Congress. "SEc. 2. That any shipment of material hereby de- clared unlawful after such a proclamation shall be pun- ishable by fine not exceeding ten thousand dollars, or imprisonment not exceeding two years, or both." The third resolution is in substantially the same terms, but extends to any country in which the United States exercises extraterritorial jurisdiction, and provides for the President's action not only when conditions of domes- tic violence exist which are promoted, but also when such conditions may be promoted, by the use of such arms or munitions of war. We had occasion to review these embargo and kindred acts in connection with an exhaustive discussion of the general jsubject of delegation of legislative power in a recent case, Panama Refining Co. v. Ryan, 293 U. S.388, 421-422, and in justifying such acts, pointed out that they confided to the President "an authority which was cognate to the conduct by him of the foreign relations of the government." The result of holding that the joint resolution here under attack is void and unenforceable as constituting an unlawful delegation of legislative power would -be to stamp this multitude of comparable acts and resolutions as likewise invalid. And while this court may not,. and should not, hesitate to deblare acts of Congress, however many times repeated, to be unconstitutional if beyond all rational doubt it finds °them to be so, an impressive array of legislation such as we have just set forth, en- acted by nearly every Congress from the beginning of our national existence to the present day, must be given un- usual weight in the process of reaching a correct deter- mination of the problem. A legislative practice such as we have here, evidenced not by only occaional instances; OCTOBER TERM, 1936.'
Opinion of the Court. 299 U. S. but marked by the movement of a steady stream for a century and a half of time, goes a long way in the direc- tion of proving the presence of unassailable ground for the' constitutionality of the practice, to be found in the origin and history of the power involved, or in its nature, or in both combined. In The Laura, 114 U. S. 411, 416, this court answered a challenge to the constitutionality of a statute authoriz- ing the Secretary of the Treasury to remit or mitigate fines and penalties in certain cases, by repeating the lan- guage of a very early case (Stuart v. Laird, 1 Cranch 299, 309) that the long practice and acquiescence under the statute was a "practical exposition . . . too strong and obstinate to be shaken or controlled. Of course, the ques- tion is at rest, and ought not now to be disturbed." In Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57, the constitutionality of R. S. § 4952, conferring upon the author, inventor, designer or proprietor, of a photo- graph certain rights, was involved. Mr. Justice Miller, speaking for the court, disposed of the point by saying: "The construction placed upon the Constitution by the first act of 1790, and the act of 1802, by the men who were contemporary with .its formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost con- clusive." In Field v. Clark, 143 U. S. 649, 691, this court declared that" . . . the practical construction of the Constitution, as given by so -many acts of Congress, and embracing almost the entire period of our national existence, should not be overruled, unless upon a conviction that such legis- lation was clearly incompatible with the supreme law of the land." The rule is one which has been stated and applied many times by this court. As examples, see U. S. v. CURTISS-WRIGHT CORP.
304 Opinion of the Court.
Ames v. Kansas, 111 U. S. 449, 469; McCulloch v. Mary- land, 4 Wheat. 316, 401; Downes v. Bidwell, 182 U. S. 244, 286. The uniform, long-continued and undisputed legisla- tive practice just disclosed rests upon an admissible view of the Constitution which, even if the practice found far less support in principle than we think it does, we should not feel at liberty at this late day to disturb. We deem it unnecessary to consider, seriatim, the sev- eral clauses which are said to evidence the unconstitu- tionality of the Joint Resolution as' involving an unlaw- ful delegation of legislative power. It is enough to sum- marize by saying that, both upon principle and. in ac- cordance with precedent, we conclude there is sufficient warrant for the broad discretion vested in the President to determine whether the enforcement of the statute will have a beneficial effect upon the reestablishnent of peace in the affected countries; whether he shall make procla- mation to bring the resolution into operation; whether and when the resolution shall cease to operate and to make proclamation accordingly; and to prescribe limita- tions and exceptions to which the enforcement o. the resolution shall be subject. Second. The second point raised by the. demurrer was that the Joint Resolution never became effective because the President failed to find essential jurisdictional facts;, and the third point was that the second proclamation of the President operated to put an end to the alleged lia- bility of appellees under the Joint Resolution. In respect of both points, the court below overruled the demurrer, and thus far sustained the government. The government contends that upon an appeal by the United States under the Criminal Appeals Act from a de- cision holding an indictment bad, the jurisdiction of the court does not extend to questions decided in favor of the United States, but that such questions may only be re- 330 OCTOBER TERM, 1936.
Opinion of the Court. 299 U. S. viewed in the usual way after conviction. We find noth- ing in the words of the statute or in its purposes which justifies this conclusion. The demurrer in the present case challenges the validity of the statute upon three separate and distinct grounds. If the court below had sustained the demurrer without more, an appeal by the government necessarily would have brought here for our determina- tion all of these grounds, since in that case the record would not have disclosed whether the court considered the statute invalid upon one particular ground or upon all of the grounds alleged. The judgment of the lower court is that the statute is invalid. Having held that this judgment cannot be sustained upon the particular ground which that court assigned, it is now open to this court to ,inquire whether or not the judgment can be sustained upon the rejected grounds which also challenge the valid- ity of the statute and, therefore, constitute a proper sub- ject of review by this court under the Criminal Appeals Act. United States v. Hastings, 296 U. S. 188, 192. In Langnes v. Green, 282 U. S. 531, where the decree of a district court had been assailed upon two grounds and the circuit court of appeals had sustained the attack upon one of such grounds only, we held that a respondent in certiorari might nevertheless urge in this court in sup- port of the -decree the ground which the intermediate appellate court had rip.pcfted That principle is appli- cable here. We proceed, then, to a consideration of the second and third grounds of the demurrers which, as we have said, I the court below rejected. 1. The Executive proclamation recites, "I have found that the prohibition of the sale of arms and munitions of war in the United States to those countries now en- gaged in armed conflict in.the Chaco may contribute to the reestablishmient of peace between those countries, U. S. v. CURTISS-WRIGHT CORP. 331 304 Opinion of the Court. and that I have consulted with the governments of other American Republics and have been assured of the co6p- eration of such governments as I have deemed necessary as contemplated by the said joint resolution." This find- ing satisfies every requirement of the Joint Resolution. There is no suggestion that the resolution is fatally uncer- tain or indefinite; and a finding which follows its lan- guage, as this finding does, cannot well be challenged hs insufficient. But appellees, referring to the words which we have italicized above, contend. that the finding is insufficient because the President does not declare that the cobp- eration of such governments as he deemed necessary in- cluded any American republic and, therefore, the recital contains no affirmative showing of compliance in this re- spect with the Joint Resolution. The criticism seems to us wholly wanting in substance. The President recites that he has consulted with the governments of other American republics, and that he has been assured of the co6peration of such governments as he deemed necessary as contemplated by the joint resolution. These recitals, construed together, fairly include within their meaning American republics. 2. The second proclamation of the President, revoking the first proclamation, it is urged, had the effect of putting an end to the Joint Resolution, and in accordance with a well-settled rule, no penalty could be enforced or punish- ment inflicted thereafter for an offense committed during the life of the Joint Resolution in the absence of a provi- sion in the resolution to that effect. There is no doubt as to the general rule or as to the absence of a saving clause in the Joint Resolution. But is the case presented one whiph makes the rule applicable? It was not within the power of the President to repeal the Joint Resolution; and his second proclamation did not OCTOBER TERM, 1936.
Opinion of the Court. 299 U. S.
purport to do so. It "revoked" the first proclamation; and the question is, did the revocation of'the proclama- .tion have the effect of abrogating the resolution or of pre- cluding its enforcement in so far as that involved the pros- ecution and pqnishment of offenses committed during the life of the trst proclamation? We are of opinion that it did not. Prior to the first proclamation, the Joint Resolution was an existing law, but dormant, awaiting the creation of a particular situation to render it active. No action or lack of action on the part of the President could destroy its potentiality. Congress alone could do that. The hap- pening of the designated events--namely, the finding of certain conditions and the proclamation by the Presi- dent-did not call the law into being. It created the occa- sion for it to function. The second proclamation did not put an end to the law or affect what had been done in violation of the law. The effect of the proclamation was simply to remove for the future, a condition of affairs which admitted of its exercise. We should have had a different case if the Joint Reso- lution had expired by its own terms upon the issue of the second proclamation. Its operative force, it is true, was limited to the period of time covered by the fist procla- mation. And when the second proclamation was issued, the resolution ceased to be a rule for the future. It did not cease to be the law for the antecedent period of time. The distinction is clearly pointed out by the Superior Court of Judicature of New Hampshire in Stevens v. Di- mond, 6 N. H. 330, 332, 333. There, a town by-law pro- vided that if certain animals should be found going at large between the first day of April and the last day of October, etc., the owner would incur a prescribed penalty. The tralI court directed the jury that the by-law, being in force for a y~ar only, had expired so that the defendant could not be called upon to answer for a violation which U. S. v. CURTISS-WRIGHT CORP.
304 Opinion of the Court. occurred during the designated period. The state appel- late court reversed, saying that when laws "expire by their own limitation, or are repealed, they cease to be the law in relation to the past, as well as the future, and can no longer be enforced in any case. No case is, however, to be found in which it was ever held before that they thus ceased to be law, unless they expired by express limita- tion in themselves, or were repealed. It has never been decided that they cease to be law, merely because the time they were intended to regulate had expired. ... A very little consideration of the subject will convince any one that a limitation of the time to which a statute is to apply, is a very different thing from the limitation of the time a statute is to continue in force." The first proclamation of the President was in force from the 28th day of May, 1934, to the 14th day of No- vember, 1935. If the Joint Resolution had in no way de- pended upon Presidential action, but had provided ex- plicitly that, at any time between May 28, 1934, and November 14, 1935, it should be unlawful to sell arms or munitions of war to the countries engaged in armed con- flict in the Chaco, it certainly could not be successfully contended that the law would expire with the passing of the time fixed in respect of offenses committed during the period. The judgment of the court below must be reversed and the cause remanded for further proceedings in accordance with the foregoing opinion. Reversed.
MR. JUSTICE McREYNOLDS does not agree. He is of opinion that the court below reached the right conclu- sion and its judgment ought to be affirmed.
M\R. JUSTICE STONE took no part in the consideration or decision of this case. (Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES
Syllabus
CLAPPER, DIRECTOR OF NATIONAL INTELLIGENCE, ET AL. v. AMNESTY INTERNATIONAL USA ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 11–1025. Argued October 29, 2012—Decided February 26, 2013 Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U. S. C. §1881a, added by the FISA Amendments Act of 2008, permits the Attorney General and the Director of National Intelli- gence to acquire foreign intelligence information by jointly authoriz- ing the surveillance of individuals who are not “United States per- sons” and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of Na- tional Intelligence normally must obtain the Foreign Intelligence Surveillance Court’s (FISC) approval. Surveillance under §1881a is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment. Respond- ents—attorneys and human rights, labor, legal, and media organiza- tions—are United States persons who claim that they engage in sen- sitive international communications with individuals who they believe are likely targets of §1881a surveillance. On the day that the FISA Amendments Act was enacted, they filed suit, seeking a decla- ration that §1881a is facially unconstitutional and a permanent in- junction against §1881a-authorized surveillance. The District Court found that respondents lacked standing, but the Second Circuit re- versed, holding that respondents showed (1) an “objectively reasona- ble likelihood” that their communications will be intercepted at some time in the future, and (2) that they are suffering present injuries re- sulting from costly and burdensome measures they take to protect the confidentiality of their international communications from possi- ble §1881a surveillance. Held: Respondents do not have Article III standing. Pp. 8–24. (a) To establish Article III standing, an injury must be “concrete,
2 CLAPPER v. AMNESTY INTERNATIONAL USA
Syllabus
particularized, and actual or imminent; fairly traceable to the chal- lenged action; and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U. S. ___, ___. “[T]hreatened injury must be ‘ “certainly impending” ’ to constitute injury in fact,” and “[a]llegations of possible future injury” are not sufficient. Whitmore v. Arkansas, 495 U. S. 149, 158. Pp. 8–10. (b) Respondents assert that they have suffered injury in fact that is fairly traceable to §1881a because there is an objectively reasonable likelihood that their communications with their foreign contacts will be intercepted under §1881a at some point. This argument fails. Ini- tially, the Second Circuit’s “objectively reasonable likelihood” stand- ard is inconsistent with this Court’s “threatened injury” requirement. Respondents’ standing theory also rests on a speculative chain of pos- sibilities that does not establish that their potential injury is certain- ly impending or is fairly traceable to §1881a. First, it is highly specu- lative whether the Government will imminently target communications to which respondents are parties. Since respond- ents, as U. S. persons, cannot be targeted under §1881a, their theory necessarily rests on their assertion that their foreign contacts will be targeted. Yet they have no actual knowledge of the Government’s §1881a targeting practices. Second, even if respondents could demonstrate that the targeting of their foreign contacts is imminent, they can only speculate as to whether the Government will seek to use §1881a-authorized surveillance instead of one of the Govern- ment’s numerous other surveillance methods, which are not chal- lenged here. Third, even if respondents could show that the Govern- ment will seek FISC authorization to target respondents’ foreign contacts under §1881a, they can only speculate as to whether the FISC will authorize the surveillance. This Court is reluctant to en- dorse standing theories that require guesswork as to how independ- ent decisionmakers will exercise their judgment. See, e.g., Whitmore, supra, at 159–160. Fourth, even if the Government were to obtain the FISC’s approval to target respondents’ foreign contacts under §1881a, it is unclear whether the Government would succeed in ac- quiring those contacts’ communications. And fifth, even if the Gov- ernment were to target respondents’ foreign contacts, respondents can only speculate as to whether their own communications with those contacts would be incidentally acquired. Pp. 10–15. (c) Respondents’ alternative argument is also unpersuasive. They claim that they suffer ongoing injuries that are fairly traceable to §1881a because the risk of §1881a surveillance requires them to take costly and burdensome measures to protect the confidentiality of their communications. But respondents cannot manufacture stand- ing by choosing to make expenditures based on hypothetical future
Cite as: 568 U. S. ____ (2013) 3
Syllabus
harm that is not certainly impending. Because they do not face a threat of certainly impending interception under §1881a, their costs are simply the product of their fear of surveillance, which is insuffi- cient to create standing. See Laird v. Tatum, 408 U. S. 1, 10–15. Ac- cordingly, any ongoing injuries that respondents are suffering are not fairly traceable to §1881a. Pp. 16–20. (d) Respondents’ remaining arguments are likewise unavailing. Contrary to their claim, their alleged injuries are not the same kinds of injuries that supported standing in cases such as Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, Meese v. Keene, 481 U. S. 465, and Monsanto, supra. And their suggestion that they should be held to have standing because other- wise the constitutionality of §1881a will never be adjudicated is both legally and factually incorrect. First, “ ‘[t]he assumption that if re- spondents have no standing to sue, no one would have standing, is not a reason to find standing.’ ” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 489. Second, the holding in this case by no means insulates §1881a from judicial review. Pp. 20–23. 638 F. 3d 118, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. BREYER, J., filed a dis- senting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.
Cite as: 568 U. S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES ______No. 11–1025 ______
JAMES R. CLAPPER, JR., DIRECTOR OF NATIONAL INTELLIGENCE, ET AL., PETITIONERS v. AMNESTY INTERNATIONAL USA ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [February 26, 2013]
JUSTICE ALITO delivered the opinion of the Court. Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U. S. C. §1881a (2006 ed., Supp. V), allows the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly au- thorizing the surveillance of individuals who are not “United States persons”1 and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveil- lance Court’s approval. Respondents are United States persons whose work, they allege, requires them to engage in sensitive international communications with individ- uals who they believe are likely targets of surveillance under §1881a. Respondents seek a declaration that §1881a is unconstitutional, as well as an injunction against §1881a-authorized surveillance. The question —————— 1 The term “United States person” includes citizens of the United States, aliens admitted for permanent residence, and certain associa- tions and corporations. 50 U. S. C. §1801(i); see §1881(a). 2 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court before us is whether respondents have Article III standing to seek this prospective relief. Respondents assert that they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under §1881a at some point in the future. But respondents’ theory of fu- ture injury is too speculative to satisfy the well-established requirement that threatened injury must be “certainly impending.” E.g., Whitmore v. Arkansas, 495 U. S. 149, 158 (1990). And even if respondents could demonstrate that the threatened injury is certainly impending, they still would not be able to establish that this injury is fairly traceable to §1881a. As an alternative argument, re- spondents contend that they are suffering present injury because the risk of §1881a-authorized surveillance al- ready has forced them to take costly and burdensome meas- ures to protect the confidentiality of their international communications. But respondents cannot manufacture stand- ing by choosing to make expenditures based on hypothet- ical future harm that is not certainly impending. We therefore hold that respondents lack Article III standing. I A In 1978, after years of debate, Congress enacted the Foreign Intelligence Surveillance Act (FISA) to authorize and regulate certain governmental electronic surveillance of communications for foreign intelligence purposes. See 92 Stat. 1783, 50 U. S. C. §1801 et seq.; 1 D. Kris & J. Wilson, National Security Investigations & Prosecutions §§3.1, 3.7 (2d ed. 2012) (hereinafter Kris & Wilson). In enacting FISA, Congress legislated against the backdrop of our decision in United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U. S. 297 (1972) (Keith), in which we explained that the standards and procedures that law enforcement officials must follow Cite as: 568 U. S. ____ (2013) 3
Opinion of the Court when conducting “surveillance of ‘ordinary crime’ ” might not be required in the context of surveillance conducted for domestic national-security purposes. Id., at 322–323. Although the Keith opinion expressly disclaimed any ruling “on the scope of the President’s surveillance power with respect to the activities of foreign powers,” id., at 308, it implicitly suggested that a special framework for foreign intelligence surveillance might be constitutionally permis- sible, see id., at 322–323. In constructing such a framework for foreign intel- ligence surveillance, Congress created two specialized courts. In FISA, Congress authorized judges of the For- eign Intelligence Surveillance Court (FISC) to approve electronic surveillance for foreign intelligence purposes if there is probable cause to believe that “the target of the electronic surveillance is a foreign power or an agent of a foreign power,” and that each of the specific “facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.” §105(a)(3), 92 Stat. 1790; see §§105(b)(1)(A), (b)(1)(B), ibid.; 1 Kris & Wilson §7:2, at 194–195; id., §16:2, at 528–529. Additionally, Congress vested the Foreign Intelligence Surveillance Court of Review with jurisdiction to review any denials by the FISC of applications for electronic surveillance. §103(b), 92 Stat. 1788; 1 Kris & Wilson §5:7, at 151–153. In the wake of the September 11th attacks, President George W. Bush authorized the National Security Agency (NSA) to conduct warrantless wiretapping of telephone and e-mail communications where one party to the com- munication was located outside the United States and a participant in “the call was reasonably believed to be a member or agent of al Qaeda or an affiliated terrorist organization,” App. to Pet. for Cert. 403a. See id., at 263a–265a, 268a, 273a–279a, 292a–293a; American Civil Liberties Union v. NSA, 493 F. 3d 644, 648 (CA6 2007) 4 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court (ACLU) (opinion of Batchelder, J.). In January 2007, the FISC issued orders authorizing the Government to target international communications into or out of the United States where there was probable cause to believe that one participant to the communication was a member or agent of al Qaeda or an associated terrorist organization. App. to Pet. for Cert. 312a, 398a, 405a. These FISC orders sub- jected any electronic surveillance that was then occur- ring under the NSA’s program to the approval of the FISC. Id., at 405a; see id., at 312a, 404a. After a FISC Judge subsequently narrowed the FISC’s authorization of such surveillance, however, the Executive asked Congress to amend FISA so that it would provide the intelligence community with additional authority to meet the chal- lenges of modern technology and international terrorism. Id., at 315a–318a, 331a–333a, 398a; see id., at 262a, 277a–279a, 287a. When Congress enacted the FISA Amendments Act of 2008 (FISA Amendments Act), 122 Stat. 2436, it left much of FISA intact, but it “established a new and independent source of intelligence collection authority, beyond that granted in traditional FISA.” 1 Kris & Wilson §9:11, at 349–350. As relevant here, §702 of FISA, 50 U. S. C. §1881a (2006 ed., Supp. V), which was enacted as part of the FISA Amendments Act, supplements pre-existing FISA authority by creating a new framework under which the Government may seek the FISC’s authorization of certain foreign intelligence surveillance targeting the communications of non-U. S. persons located abroad. Unlike traditional FISA surveillance, §1881a does not require the Government to demonstrate probable cause that the target of the electronic surveillance is a for- eign power or agent of a foreign power. Compare §§1805(a)(2)(A), (a)(2)(B), with §§1881a(d)(1), (i)(3)(A); 638 F. 3d 118, 126 (CA2 2011); 1 Kris & Wilson §16:16, at 584. And, unlike traditional FISA, §1881a does not require the Cite as: 568 U. S. ____ (2013) 5
Opinion of the Court Government to specify the nature and location of each of the particular facilities or places at which the electronic surveillance will occur. Compare §§1805(a)(2)(B), (c)(1) (2006 ed. and Supp. V), with §§1881a(d)(1), (g)(4), (i)(3)(A); 638 F. 3d, at 125–126; 1 Kris & Wilson §16:16, at 585.2 The present case involves a constitutional challenge to §1881a. Surveillance under §1881a is subject to statutory conditions, judicial authorization, congressional supervi- sion, and compliance with the Fourth Amendment. Sec- tion 1881a provides that, upon the issuance of an order from the Foreign Intelligence Surveillance Court, “the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year . . . , the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” §1881a(a). Surveillance under §1881a may not be intentionally targeted at any person known to be in the United States or any U. S. person reasonably believed to be located abroad. §§1881a(b)(1)–(3); see also §1801(i). Additionally, acquisitions under §1881a must comport with the Fourth Amendment. §1881a(b)(5). Moreover, surveillance under §1881a is subject to congressional oversight and several types of Executive Branch review. See §§1881a(f)(2), (l); Amnesty Int’l USA v. McConnell, 646 F. Supp. 2d 633, 640–641 (SDNY 2009). Section 1881a mandates that the Government obtain the Foreign Intelligence Surveillance Court’s approval of “targeting” procedures, “minimization” procedures, and a governmental certification regarding proposed surveil- lance. §§1881a(a), (c)(1), (i)(2), (i)(3). Among other things, the Government’s certification must attest that (1) pro- cedures are in place “that have been approved, have been submitted for approval, or will be submitted with the
—————— 2 Congress recently reauthorized the FISA Amendments Act for an- other five years. See 126 Stat. 1631. 6 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court certification for approval by the [FISC] that are reason- ably designed” to ensure that an acquisition is “limited to targeting persons reasonably believed to be located outside” the United States; (2) minimization procedures adequately restrict the acquisition, retention, and dissem- ination of nonpublic information about unconsenting U. S. persons, as appropriate; (3) guidelines have been adopted to ensure compliance with targeting limits and the Fourth Amendment; and (4) the procedures and guidelines re- ferred to above comport with the Fourth Amendment. §1881a(g)(2); see §1801(h). The Foreign Intelligence Surveillance Court’s role includes determining whether the Government’s certifi- cation contains the required elements. Additionally, the Court assesses whether the targeting procedures are “reasonably designed” (1) to “ensure that an acquisition . . . is limited to targeting persons reasonably believed to be located outside the United States” and (2) to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known . . . to be located in the United States.” §1881a(i)(2)(B). The Court analyzes whether the minimization procedures “meet the definition of minimization procedures under section 1801(h) . . . , as appropriate.” §1881a(i)(2)(C). The Court also assesses whether the targeting and minimiza- tion procedures are consistent with the statute and the Fourth Amendment. See §1881a(i)(3)(A).3
—————— 3 The dissent attempts to downplay the safeguards established by §1881a. See post, at 4 (opinion of BREYER, J.). Notably, the dissent does not directly acknowledge that §1881a surveillance must comport with the Fourth Amendment, see §1881a(b)(5), and that the Foreign Intelligence Surveillance Court must assess whether targeting and minimization procedures are consistent with the Fourth Amendment, see §1881a(i)(3)(A). Cite as: 568 U. S. ____ (2013) 7
Opinion of the Court B Respondents are attorneys and human rights, labor, legal, and media organizations whose work allegedly requires them to engage in sensitive and sometimes privi- leged telephone and e-mail communications with col- leagues, clients, sources, and other individuals located abroad. Respondents believe that some of the people with whom they exchange foreign intelligence information are likely targets of surveillance under §1881a. Specifically, respondents claim that they communicate by telephone and e-mail with people the Government “believes or be- lieved to be associated with terrorist organizations,” “peo- ple located in geographic areas that are a special focus” of the Government’s counterterrorism or diplomatic efforts, and activists who oppose governments that are supported by the United States Government. App. to Pet. for Cert. 399a. Respondents claim that §1881a compromises their ability to locate witnesses, cultivate sources, obtain infor- mation, and communicate confidential information to their clients. Respondents also assert that they “have ceased engaging” in certain telephone and e-mail conversations. Id., at 400a. According to respondents, the threat of sur- veillance will compel them to travel abroad in order to have in-person conversations. In addition, respondents declare that they have undertaken “costly and burden- some measures” to protect the confidentiality of sensitive communications. Ibid. C On the day when the FISA Amendments Act was en- acted, respondents filed this action seeking (1) a declaration that §1881a, on its face, violates the Fourth Amendment, the First Amendment, Article III, and separation-of- powers principles and (2) a permanent injunction against the use of §1881a. Respondents assert what they charac- 8 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court terize as two separate theories of Article III standing. First, they claim that there is an objectively reasonable likelihood that their communications will be acquired under §1881a at some point in the future, thus causing them injury. Second, respondents maintain that the risk of surveillance under §1881a is so substantial that they have been forced to take costly and burdensome measures to protect the confidentiality of their international com- munications; in their view, the costs they have incurred constitute present injury that is fairly traceable to §1881a. After both parties moved for summary judgment, the District Court held that respondents do not have standing. McConnell, 646 F. Supp. 2d, at 635. On appeal, however, a panel of the Second Circuit reversed. The panel agreed with respondents’ argument that they have standing due to the objectively reasonable likelihood that their commu- nications will be intercepted at some time in the future. 638 F. 3d, at 133, 134, 139. In addition, the panel held that respondents have established that they are suffering “present injuries in fact—economic and professional harms—stemming from a reasonable fear of future harm- ful government conduct.” Id., at 138. The Second Circuit denied rehearing en banc by an equally divided vote. 667 F. 3d 163 (2011). Because of the importance of the issue and the novel view of standing adopted by the Court of Appeals, we granted certiorari, 566 U. S. ___ (2012), and we now reverse. II Article III of the Constitution limits federal courts’ jurisdiction to certain “Cases” and “Controversies.” As we have explained, “[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” DaimlerChrysler Corp. v. Cite as: 568 U. S. ____ (2013) 9
Opinion of the Court Cuno, 547 U. S. 332, 341 (2006) (internal quotation marks omitted); Raines v. Byrd, 521 U. S. 811, 818 (1997) (inter- nal quotation marks omitted); see, e.g., Summers v. Earth Island Institute, 555 U. S. 488, 492–493 (2009). “One element of the case-or-controversy requirement” is that plaintiffs “must establish that they have standing to sue.” Raines, supra, at 818; see also Summers, supra, at 492– 493; DaimlerChrysler Corp., supra, at 342; Lujan v. De- fenders of Wildlife, 504 U. S. 555, 560 (1992). The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches. Summers, supra, at 492–493; Daimler- Chrysler Corp., supra, at 341–342, 353; Raines, supra, at 818–820; Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 471–474 (1982); Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 221–222 (1974). In keeping with the purpose of this doctrine, “[o]ur standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Raines, supra, at 819–820; see Valley Forge Christian College, supra, at 473–474; Schlesinger, supra, at 221–222. “Relaxation of standing requirements is directly related to the expansion of judicial power,” United States v. Richardson, 418 U. S. 166, 188 (1974) (Powell, J., concurring); see also Summers, supra, at 492–493; Schlesinger, supra, at 222, and we have often found a lack of standing in cases in which the Judi- ciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs, see, e.g., Richardson, supra, at 167–170 (plaintiff lacked standing to challenge the constitutionality of a statute permitting the Central Intelligence Agency to account for its expenditures solely on the certificate of the 10 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court CIA Director); Schlesinger, supra, at 209–211 (plaintiffs lacked standing to challenge the Armed Forces Reserve membership of Members of Congress); Laird v. Tatum, 408 U. S. 1, 11–16 (1972) (plaintiffs lacked standing to challenge an Army intelligence-gathering program). To establish Article III standing, an injury must be “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U. S. ___, ___ (2010) (slip op., at 7); see also Summers, supra, at 493; Defenders of Wildlife, 504 U. S., at 560–561. “Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending.” Id., at 565, n. 2 (internal quotation marks omitted). Thus, we have repeatedly reiterated that “threatened injury must be certainly impending to consti- tute injury in fact,” and that “[a]llegations of possible future injury” are not sufficient. Whitmore, 495 U. S., at 158 (emphasis added; internal quotation marks omitted); see also Defenders of Wildlife, supra, at 565, n. 2, 567, n. 3; see DaimlerChrysler Corp., supra, at 345; Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 190 (2000); Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979). III A Respondents assert that they can establish injury in fact that is fairly traceable to §1881a because there is an objec- tively reasonable likelihood that their communications with their foreign contacts will be intercepted under §1881a at some point in the future. This argument fails. As an initial matter, the Second Circuit’s “objectively reasonable likelihood” standard is inconsistent with our Cite as: 568 U. S. ____ (2013) 11
Opinion of the Court requirement that “threatened injury must be certainly impending to constitute injury in fact.” Whitmore, supra, at 158 (internal quotation marks omitted); see also Daim- lerChrysler Corp., supra, at 345; Laidlaw, supra, at 190; Defenders of Wildlife, supra, at 565, n. 2; Babbitt, supra, at 298. Furthermore, respondents’ argument rests on their highly speculative fear that: (1) the Government will decide to target the communications of non-U. S. persons with whom they communicate; (2) in doing so, the Gov- ernment will choose to invoke its authority under §1881a rather than utilizing another method of surveillance; (3) the Article III judges who serve on the Foreign Intelli- gence Surveillance Court will conclude that the Govern- ment’s proposed surveillance procedures satisfy §1881a’s many safeguards and are consistent with the Fourth Amendment; (4) the Government will succeed in inter- cepting the communications of respondents’ contacts; and (5) respondents will be parties to the particular communi- cations that the Government intercepts. As discussed below, respondents’ theory of standing, which relies on a highly attenuated chain of possibilities, does not satisfy the requirement that threatened injury must be certainly impending. See Summers, supra, at 496 (rejecting a standing theory premised on a speculative chain of possi- bilities); Whitmore, supra, at 157–160 (same). Moreover, even if respondents could demonstrate injury in fact, the second link in the above-described chain of contingen- cies—which amounts to mere speculation about whether surveillance would be under §1881a or some other author- ity—shows that respondents cannot satisfy the require- ment that any injury in fact must be fairly traceable to §1881a. First, it is speculative whether the Government will imminently target communications to which respondents are parties. Section 1881a expressly provides that re- spondents, who are U. S. persons, cannot be targeted for 12 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court surveillance under §1881a. See §§1881a(b)(1)–(3); 667 F. 3d, at 173 (Raggi, J., dissenting from denial of rehear- ing en banc). Accordingly, it is no surprise that respond- ents fail to offer any evidence that their communications have been monitored under §1881a, a failure that sub- stantially undermines their standing theory. See ACLU, 493 F. 3d, at 655–656, 673–674 (opinion of Batchelder, J.) (concluding that plaintiffs who lacked evidence that their communications had been intercepted did not have stand- ing to challenge alleged NSA surveillance). Indeed, re- spondents do not even allege that the Government has sought the FISC’s approval for surveillance of their com- munications. Accordingly, respondents’ theory necessarily rests on their assertion that the Government will target other individuals—namely, their foreign contacts. Yet respondents have no actual knowledge of the Government’s §1881a targeting practices. Instead, re- spondents merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired under §1881a. See 667 F. 3d, at 185–187 (opinion of Raggi, J.). For example, journalist Christopher Hedges states: “I have no choice but to assume that any of my international communications may be subject to gov- ernment surveillance, and I have to make decisions . . . in light of that assumption.” App. to Pet. for Cert. 366a (emphasis added and deleted). Similarly, attorney Scott McKay asserts that, “[b]ecause of the [FISA Amendments Act], we now have to assume that every one of our interna- tional communications may be monitored by the govern- ment.” Id., at 375a (emphasis added); see also id., at 337a, 343a–344a, 350a, 356a. “The party invoking federal juris- diction bears the burden of establishing” standing—and, at the summary judgment stage, such a party “can no longer rest on . . . ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts.’ ” Defenders of Wildlife, 504 U. S., at 561. Respondents, however, have Cite as: 568 U. S. ____ (2013) 13
Opinion of the Court set forth no specific facts demonstrating that the commu- nications of their foreign contacts will be targeted. More- over, because §1881a at most authorizes—but does not mandate or direct—the surveillance that respondents fear, respondents’ allegations are necessarily conjectural. See United Presbyterian Church in U. S. A. v. Reagan, 738 F. 2d 1375, 1380 (CADC 1984) (Scalia, J.); 667 F. 3d, at 187 (opinion of Raggi, J.). Simply put, respondents can only speculate as to how the Attorney General and the Director of National Intelligence will exercise their discre- tion in determining which communications to target.4 Second, even if respondents could demonstrate that the targeting of their foreign contacts is imminent, respond- ents can only speculate as to whether the Government will seek to use §1881a-authorized surveillance (rather than other methods) to do so. The Government has numerous other methods of conducting surveillance, none of which is challenged here. Even after the enactment of the FISA Amendments Act, for example, the Government may still conduct electronic surveillance of persons abroad under the older provisions of FISA so long as it satisfies the —————— 4 It was suggested at oral argument that the Government could help resolve the standing inquiry by disclosing to a court, perhaps through an in camera proceeding, (1) whether it is intercepting respondents’ communications and (2) what targeting or minimization procedures it is using. See Tr. of Oral Arg. 13–14, 44, 56. This suggestion is puz- zling. As an initial matter, it is respondents’ burden to prove their standing by pointing to specific facts, Lujan v. Defenders of Wildlife, 504 U. S. 555, 561 (1992), not the Government’s burden to disprove standing by revealing details of its surveillance priorities. Moreover, this type of hypothetical disclosure proceeding would allow a terrorist (or his attorney) to determine whether he is currently under U. S. surveillance simply by filing a lawsuit challenging the Government’s surveillance program. Even if the terrorist’s attorney were to comply with a protective order prohibiting him from sharing the Government’s disclosures with his client, the court’s postdisclosure decision about whether to dismiss the suit for lack of standing would surely signal to the terrorist whether his name was on the list of surveillance targets. 14 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court applicable requirements, including a demonstration of probable cause to believe that the person is a foreign power or agent of a foreign power. See §1805. The Gov- ernment may also obtain information from the intelligence services of foreign nations. Brief for Petitioners 33. And, although we do not reach the question, the Government contends that it can conduct FISA-exempt human and technical surveillance programs that are governed by Executive Order 12333. See Exec. Order No. 12333, §§1.4, 2.1–2.5, 3 CFR 202, 210–212 (1981), reprinted as amended, note following 50 U. S. C. §401, pp. 543, 547–548. Even if respondents could demonstrate that their foreign contacts will imminently be targeted—indeed, even if they could show that interception of their own communications will imminently occur—they would still need to show that their injury is fairly traceable to §1881a. But, be- cause respondents can only speculate as to whether any (asserted) interception would be under §1881a or some other authority, they cannot satisfy the “fairly traceable” requirement. Third, even if respondents could show that the Govern- ment will seek the Foreign Intelligence Surveillance Court’s authorization to acquire the communications of respondents’ foreign contacts under §1881a, respondents can only speculate as to whether that court will authorize such surveillance. In the past, we have been reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judg- ment. In Whitmore, for example, the plaintiff ’s theory of standing hinged largely on the probability that he would obtain federal habeas relief and be convicted upon retrial. In holding that the plaintiff lacked standing, we explained that “[i]t is just not possible for a litigant to prove in ad- vance that the judicial system will lead to any particular result in his case.” 495 U. S., at 159–160; see Defenders of Wildlife, 504 U. S., at 562. Cite as: 568 U. S. ____ (2013) 15
Opinion of the Court We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the deci- sions of independent actors. Section 1881a mandates that the Government must obtain the Foreign Intelligence Surveillance Court’s approval of targeting procedures, minimization procedures, and a governmental certification regarding proposed surveillance. §§1881a(a), (c)(1), (i)(2), (i)(3). The Court must, for example, determine whether the Government’s procedures are “reasonably designed . . . to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information con- cerning unconsenting United States persons.” §1801(h); see §§1881a(i)(2), (i)(3)(A). And, critically, the Court must also assess whether the Government’s targeting and minimization procedures comport with the Fourth Amend- ment. §1881a(i)(3)(A). Fourth, even if the Government were to obtain the Foreign Intelligence Surveillance Court’s approval to tar- get respondents’ foreign contacts under §1881a, it is unclear whether the Government would succeed in acquir- ing the communications of respondents’ foreign contacts. And fifth, even if the Government were to conduct surveil- lance of respondents’ foreign contacts, respondents can only speculate as to whether their own communications with their foreign contacts would be incidentally acquired. In sum, respondents’ speculative chain of possibilities does not establish that injury based on potential future surveillance is certainly impending or is fairly traceable to §1881a.5 —————— 5 Our cases do not uniformly require plaintiffs to demonstrate that it is literally certain that the harms they identify will come about. In some instances, we have found standing based on a “substantial risk” that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm. Monsanto Co. v. Geertson Seed Farms, 561 U. S. ___, ___ (2010) (slip op., at 11–12). See also Pennell v. City of San Jose, 485 U. S. 1, 8 (1988); Blum v. Yaretsky, 457 16 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court B Respondents’ alternative argument—namely, that they can establish standing based on the measures that they have undertaken to avoid §1881a-authorized surveil- lance—fares no better. Respondents assert that they are suffering ongoing injuries that are fairly traceable to §1881a because the risk of surveillance under §1881a requires them to take costly and burdensome measures to protect the confidentiality of their communications. Re- spondents claim, for instance, that the threat of surveil- lance sometimes compels them to avoid certain e-mail and phone conversations, to “tal[k] in generalities rather than specifics,” or to travel so that they can have in-person conversations. Tr. of Oral Arg. 38; App. to Pet. for Cert. 338a, 345a, 367a, 400a.6 The Second Circuit panel con- cluded that, because respondents are already suffering such ongoing injuries, the likelihood of interception under §1881a is relevant only to the question whether respond- ents’ ongoing injuries are “fairly traceable” to §1881a. See —————— U. S. 991, 1000–1001 (1982); Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979). But to the extent that the “substantial risk” standard is relevant and is distinct from the “clearly impending” requirement, respondents fall short of even that standard, in light of the attenuated chain of inferences necessary to find harm here. See supra, at 11–15. In addition, plaintiffs bear the burden of pleading and proving concrete facts showing that the defendant’s actual action has caused the sub- stantial risk of harm. Plaintiffs cannot rely on speculation about “ ‘the unfettered choices made by independent actors not before the court.’ ” Defenders of Wildlife, 504 U. S., at 562. 6 For all the focus on respondents’ supposed need to travel abroad in light of potential §1881a surveillance, respondents cite only one specific instance of travel: an attorney’s trip to New York City to meet with other lawyers. See App. to Pet. for Cert. 352a. This domestic travel had but a tenuous connection to §1881a, because §1881a-authorized acquisitions “may not intentionally target any person known at the time of acquisition to be located in the United States.” §1881a(b)(1); see also 667 F. 3d 163, 202 (CA2 2011) (Jacobs, C. J., dissenting from denial of rehearing en banc); id., at 185 (opinion of Raggi, J. (same)). Cite as: 568 U. S. ____ (2013) 17
Opinion of the Court 638 F. 3d, at 133–134; 667 F. 3d, at 180 (opinion of Raggi, J.). Analyzing the “fairly traceable” element of standing under a relaxed reasonableness standard, see 638 F. 3d, at 133–134, the Second Circuit then held that “plaintiffs have established that they suffered present injuries in fact—economic and professional harms—stemming from a reasonable fear of future harmful government conduct,” id., at 138. The Second Circuit’s analysis improperly allowed re- spondents to establish standing by asserting that they suffer present costs and burdens that are based on a fear of surveillance, so long as that fear is not “fanciful, para- noid, or otherwise unreasonable.” See id., at 134. This improperly waters down the fundamental requirements of Article III. Respondents’ contention that they have stand- ing because they incurred certain costs as a reasonable reaction to a risk of harm is unavailing—because the harm respondents seek to avoid is not certainly impending. In other words, respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending. See Pennsylvania v. New Jersey, 426 U. S. 660, 664 (1976) (per curiam); National Family Planning & Reproductive Health Assn., Inc., 468 F. 3d 826, 831 (CADC 2006). Any ongoing injuries that respondents are suffer- ing are not fairly traceable to §1881a. If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear. As Judge Raggi accurately noted, under the Second Circuit panel’s reasoning, respondents could, “for the price of a plane ticket, . . . transform their stand- ing burden from one requiring a showing of actual or imminent . . . interception to one requiring a showing that their subjective fear of such interception is not fanciful, irrational, or clearly unreasonable.” 667 F. 3d, at 180 18 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court (internal quotation marks omitted). Thus, allowing re- spondents to bring this action based on costs they incurred in response to a speculative threat would be tantamount to accepting a repackaged version of respondents’ first failed theory of standing. See ACLU, 493 F. 3d, at 656– 657 (opinion of Batchelder, J.). Another reason that respondents’ present injuries are not fairly traceable to §1881a is that even before §1881a was enacted, they had a similar incentive to engage in many of the countermeasures that they are now taking. See id., at 668–670. For instance, respondent Scott McKay’s declaration describes—and the dissent heavily relies on—Mr. McKay’s “knowledge” that thousands of communications involving one of his clients were moni- tored in the past. App. to Pet. for Cert. 370a; post, at 4, 7–8. But this surveillance was conducted pursuant to FISA authority that predated §1881a. See Brief for Petitioners 32, n. 11; Al-Kidd v. Gonzales, No. 05–cv–93, 2008 WL 5123009 (D Idaho, Dec. 4, 2008). Thus, because the Gov- ernment was allegedly conducting surveillance of Mr. McKay’s client before Congress enacted §1881a, it is diffi- cult to see how the safeguards that Mr. McKay now claims to have implemented can be traced to §1881a. Because respondents do not face a threat of certainly impending interception under §1881a, the costs that they have incurred to avoid surveillance are simply the product of their fear of surveillance,7 and our decision in Laird
—————— 7 Although respondents’ alternative theory of standing rests primarily on choices that they have made based on their subjective fear of surveil- lance, respondents also assert that third parties might be disinclined to speak with them due to a fear of surveillance. See App. to Pet. for Cert. 372a–373a, 352a–353a. To the extent that such assertions are based on anything other than conjecture, see Defenders of Wildlife, 504 U. S., at 560, they do not establish injury that is fairly traceable to §1881a, because they are based on third parties’ subjective fear of surveillance, see Laird, 408 U. S., at 10–14. Cite as: 568 U. S. ____ (2013) 19
Opinion of the Court makes it clear that such a fear is insufficient to create standing. See 408 U. S., at 10–15. The plaintiffs in Laird argued that their exercise of First Amendment rights was being “chilled by the mere existence, without more, of [the Army’s] investigative and data-gathering activity.” Id., at 10. While acknowledging that prior cases had held that constitutional violations may arise from the chilling effect of “regulations that fall short of a direct prohibi- tion against the exercise of First Amendment rights,” the Court declared that none of those cases involved a “chilling effect aris[ing] merely from the individual’s knowledge that a governmental agency was engaged in certain activities or from the individual’s concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual.” Id., at 11. Because “[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm,” id., at 13–14, the plain- tiffs in Laird—and respondents here—lack standing. See ibid.; ACLU, supra, at 661–662 (opinion of Batchelder, J.) (holding that plaintiffs lacked standing because they “allege[d] only a subjective apprehension” of alleged NSA surveillance and “a personal (self-imposed) unwillingness to communicate”); United Presbyterian Church, 738 F. 2d, at 1378 (holding that plaintiffs lacked standing to chal- lenge the legality of an Executive Order relating to sur- veillance because “the ‘chilling effect’ which is produced by their fear of being subjected to illegal surveillance and which deters them from conducting constitutionally pro- tected activities, is foreclosed as a basis for standing” by Laird). For the reasons discussed above, respondents’ self- inflicted injuries are not fairly traceable to the Govern- ment’s purported activities under §1881a, and their subjective fear of surveillance does not give rise to standing. 20 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court IV A Respondents incorrectly maintain that “[t]he kinds of injuries incurred here—injuries incurred because of [re- spondents’] reasonable efforts to avoid greater injuries that are otherwise likely to flow from the conduct they challenge—are the same kinds of injuries that this Court held to support standing in cases such as” Laidlaw, Meese v. Keene, 481 U. S. 465 (1987), and Monsanto. Brief for Respondents 24. As an initial matter, none of these cases holds or even suggests that plaintiffs can establish stand- ing simply by claiming that they experienced a “chilling effect” that resulted from a governmental policy that does not regulate, constrain, or compel any action on their part. Moreover, each of these cases was very different from the present case. In Laidlaw, plaintiffs’ standing was based on “the prop- osition that a company’s continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms.” 528 U. S., at 184. Because the unlawful dis- charges of pollutants were “concededly ongoing,” the only issue was whether “nearby residents”—who were mem- bers of the organizational plaintiffs—acted reasonably in refraining from using the polluted area. Id., at 183–184. Laidlaw is therefore quite unlike the present case, in which it is not “concede[d]” that respondents would be subject to unlawful surveillance but for their decision to take preventive measures. See ACLU, 493 F. 3d, at 686 (opinion of Batchelder, J.) (distinguishing Laidlaw on this ground); id., at 689–690 (Gibbons, J., concurring) (same); 667 F. 3d, at 182–183 (opinion of Raggi, J.) (same). Laidlaw would resemble this case only if (1) it were undisputed that the Government was using §1881a- authorized surveillance to acquire respondents’ communi- Cite as: 568 U. S. ____ (2013) 21
Opinion of the Court cations and (2) the sole dispute concerned the reasonable- ness of respondents’ preventive measures. In Keene, the plaintiff challenged the constitutionality of the Government’s decision to label three films as “political propaganda.” 481 U. S., at 467. The Court held that the plaintiff, who was an attorney and a state legislator, had standing because he demonstrated, through “detailed affidavits,” that he “could not exhibit the films without incurring a risk of injury to his reputation and of an im- pairment of his political career.” Id., at 467, 473–475. Unlike the present case, Keene involved “more than a
‘subjective chill’ ” based on speculation about potential governmental action; the plaintiff in that case was un- questionably regulated by the relevant statute, and the films that he wished to exhibit had already been labeled as “political propaganda.” See ibid.; ACLU, 493 F. 3d, at 663–664 (opinion of Batchelder, J.); id., at 691 (Gibbons, J., concurring). Monsanto, on which respondents also rely, is likewise inapposite. In Monsanto, conventional alfalfa farmers had standing to seek injunctive relief because the agency’s decision to deregulate a variety of genetically engineered alfalfa gave rise to a “significant risk of gene flow to non-genetically-engineered varieties of alfalfa.” 561 U. S., at ___ (slip op., at 13). The standing analysis in that case hinged on evidence that genetically engineered alfalfa
“ ‘seed fields [we]re currently being planted in all the major alfalfa seed production areas’”; the bees that polli- nate alfalfa “ ‘have a range of at least two to ten miles’ ”; and the alfalfa seed farms were concentrated in an area well within the bees’ pollination range. Id., at ___–___, and n. 3 (slip op., at 11–12, and n. 3). Unlike the conven- tional alfalfa farmers in Monsanto, however, respondents in the present case present no concrete evidence to sub- stantiate their fears, but instead rest on mere conjecture about possible governmental actions. 22 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court B Respondents also suggest that they should be held to have standing because otherwise the constitutionality of §1881a could not be challenged. It would be wrong, they maintain, to “insulate the government’s surveillance activities from meaningful judicial review.” Brief for Respondents 60. Respondents’ suggestion is both legally and factually incorrect. First, “ ‘[t]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.’ ” Valley Forge Christian College, 454 U. S., at 489; Schlesinger, 418 U. S., at 227; see also Richardson, 418 U. S., at 179; Raines, 521 U. S., at 835 (Souter, J., joined by GINSBURG, J., concur- ring in judgment). Second, our holding today by no means insulates §1881a from judicial review. As described above, Congress created a comprehensive scheme in which the Foreign Intelligence Surveillance Court evaluates the Government’s certifications, targeting procedures, and minimization procedures—including assessing whether the targeting and minimization procedures comport with the Fourth Amendment. §§1881a(a), (c)(1), (i)(2), (i)(3). Any dissatis- faction that respondents may have about the Foreign Intelligence Surveillance Court’s rulings—or the congres- sional delineation of that court’s role—is irrelevant to our standing analysis. Additionally, if the Government intends to use or dis- close information obtained or derived from a §1881a ac- quisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition. §§1806(c), 1806(e), 1881e(a) (2006 ed. and Supp. V).8 —————— 8 The possibility of judicial review in this context is not farfetched. In United States v. Damrah, 412 F. 3d 618 (CA6 2005), for example, the Government made a pretrial disclosure that it intended to use FISA Cite as: 568 U. S. ____ (2013) 23
Opinion of the Court Thus, if the Government were to prosecute one of respondent-attorney’s foreign clients using §1881a-authorized surveillance, the Government would be required to make a disclosure. Although the foreign client might not have a viable Fourth Amendment claim, see, e.g., United States v. Verdugo-Urquidez, 494 U. S. 259, 261 (1990), it is possible that the monitoring of the target’s conversations with his or her attorney would provide grounds for a claim of standing on the part of the attorney. Such an attorney would certainly have a stronger evidentiary basis for establishing standing than do respondents in the present case. In such a situation, unlike in the present case, it would at least be clear that the Government had ac- quired the foreign client’s communications using §1881a- authorized surveillance. Finally, any electronic communications service provider that the Government directs to assist in §1881a surveil- lance may challenge the lawfulness of that directive before the FISC. §§1881a(h)(4), (6). Indeed, at the behest of a service provider, the Foreign Intelligence Surveillance Court of Review previously analyzed the constitutionality of electronic surveillance directives issued pursuant to a now-expired set of FISA amendments. See In re Directives Pursuant to Section 105B of Foreign Intelligence Surveil- lance Act, 551 F. 3d 1004, 1006–1016 (2008) (holding that the provider had standing and that the directives were constitutional). * * * We hold that respondents lack Article III standing because they cannot demonstrate that the future injury —————— evidence in a prosecution; the defendant (unsuccessfully) moved to suppress the FISA evidence, even though he had not been the target of the surveillance; and the Sixth Circuit ultimately held that FISA’s procedures are consistent with the Fourth Amendment. See id., at 622, 623, 625. 24 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court they purportedly fear is certainly impending and because they cannot manufacture standing by incurring costs in anticipation of non-imminent harm. We therefore reverse the judgment of the Second Circuit and remand the case for further proceedings consistent with this opinion.
It is so ordered. Cite as: 568 U. S. ____ (2013) 1
BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES ______No. 11–1025 ______
JAMES R. CLAPPER, JR., DIRECTOR OF NATIONAL INTELLIGENCE, ET AL., PETITIONERS v. AMNESTY INTERNATIONAL USA ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [February 26, 2013]
JUSTICE BREYER, with whom JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting. The plaintiffs’ standing depends upon the likelihood that the Government, acting under the authority of 50 U. S. C. §1881a (2006 ed., Supp. V), will harm them by intercepting at least some of their private, foreign, tele phone, or e-mail conversations. In my view, this harm is not “speculative.” Indeed it is as likely to take place as are most future events that commonsense inference and ordi nary knowledge of human nature tell us will happen. This Court has often found the occurrence of similar future events sufficiently certain to support standing. I dissent from the Court’s contrary conclusion. I Article III specifies that the “judicial Power” of the United States extends only to actual “Cases” and “Contro versies.” §2. It thereby helps to ensure that the legal questions presented to the federal courts will not take the form of abstract intellectual problems resolved in the “rarified atmosphere of a debating society” but instead those questions will be presented “in a concrete factual context conducive to a realistic appreciation of the conse quences of judicial action.” Valley Forge Christian College 2 CLAPPER v. AMNESTY INTERNATIONAL USA
BREYER, J., dissenting v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 472 (1982) (purpose of Article III); Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) (similar); Babbitt v. Farm Workers, 442 U. S. 289, 297 (1979) (similar). The Court has recognized that the precise boundaries of the “case or controversy” requirement are matters of “de gree . . . not discernible by any precise test.” Ibid. At the same time, the Court has developed a subsidiary set of legal rules that help to determine when the Constitution’s requirement is met. See Lujan, 504 U. S., at 560–561; id., at 583 (Stevens, J., concurring in judgment). Thus, a plaintiff must have “standing” to bring a legal claim. And a plaintiff has that standing, the Court has said, only if the action or omission that the plaintiff challenges has caused, or will cause, the plaintiff to suffer an injury that is “concrete and particularized,” “actual or imminent,” and “redress[able] by a favorable decision.” Id., at 560–561 (internal quotation marks omitted). No one here denies that the Government’s interception of a private telephone or e-mail conversation amounts to an injury that is “concrete and particularized.” Moreover, the plaintiffs, respondents here, seek as relief a judgment declaring unconstitutional (and enjoining enforcement of) a statutory provision authorizing those interceptions; and, such a judgment would redress the injury by preventing it. Thus, the basic question is whether the injury, i.e., the interception, is “actual or imminent.” II A Since the plaintiffs fear interceptions of a kind author ized by §1881a, it is important to understand just what kind of surveillance that section authorizes. Congress enacted §1881a in 2008, as an amendment to the pre existing Foreign Intelligence Surveillance Act of 1978, 50 Cite as: 568 U. S. ____ (2013) 3
BREYER, J., dissenting U. S. C. §1801 et seq. Before the amendment, the Act authorized the Government (acting within the United States) to monitor private electronic communications between the United States and a foreign country if (1) the Government’s purpose was, in significant part, to obtain foreign intelligence information (which includes infor mation concerning a “foreign power” or “territory” related to our “national defense” or “security” or the “conduct of . . . foreign affairs”), (2) the Government’s surveillance target was “a foreign power or an agent of a foreign power,” and (3) the Government used surveillance proce dures designed to “minimize the acquisition and retention, and prohibit the dissemination, of ” any private information acquired about Americans. §§1801(e), (h), 1804(a). In addition the Government had to obtain the approval of the Foreign Intelligence Surveillance Court. To do so, it had to submit an application describing (1) each “specific target,” (2) the “nature of the information sought,” and (3) the “type of communications or activities to be subjected to the surveillance.” §1804(a). It had to certify that, in significant part, it sought to obtain foreign intelligence information. Ibid. It had to demonstrate probable cause to believe that each specific target was “a foreign power or an agent of a foreign power.” §§1804(a), 1805(a). It also had to describe instance-specific procedures to be used to minimize intrusions upon Americans’ privacy (compli ance with which the court subsequently could assess). §§1804(a), 1805(d)(3). The addition of §1881a in 2008 changed this prior law in three important ways. First, it eliminated the require ment that the Government describe to the court each specific target and identify each facility at which its sur veillance would be directed, thus permitting surveillance on a programmatic, not necessarily individualized, basis. §1881a(g). Second, it eliminated the requirement that a target be a “foreign power or an agent of a foreign power.” 4 CLAPPER v. AMNESTY INTERNATIONAL USA
BREYER, J., dissenting Ibid. Third, it diminished the court’s authority to insist upon, and eliminated its authority to supervise, instance-specific privacy-intrusion minimization procedures (though the Government still must use court-approved general minimization procedures). §1881a(e). Thus, using the authority of §1881a, the Government can obtain court approval for its surveillance of electronic communications between places within the United States and targets in foreign territories by showing the court (1) that “a sig nificant purpose of the acquisition is to obtain foreign intelligence information,” and (2) that it will use general targeting and privacy-intrusion minimization procedures of a kind that the court had previously approved. §1881a(g). B It is similarly important to understand the kinds of communications in which the plaintiffs say they engage and which they believe the Government will intercept. Plaintiff Scott McKay, for example, says in an affidavit (1) that he is a lawyer; (2) that he represented “Mr. Sami Omar Al-Hussayen, who was acquitted in June 2004 on terrorism charges”; (3) that he continues to represent “Mr. Al-Hussayen, who, in addition to facing criminal charges after September 11, was named as a defendant in several civil cases”; (4) that he represents Khalid Sheik Moham med, a detainee, “before the Military Commissions at Guantánamo Bay, Cuba”; (5) that in representing these clients he “communicate[s] by telephone and email with people outside the United States, including Mr. Al- Hussayen himself,” “experts, investigators, attorneys, family members . . . and others who are located abroad”; and (6) that prior to 2008 “the U. S. government had intercepted some 10,000 telephone calls and 20,000 email communications involving [his client] Al-Hussayen.” App. to Pet. for Cert. 369a–371a. Another plaintiff, Sylvia Royce, says in her affidavit (1) Cite as: 568 U. S. ____ (2013) 5
BREYER, J., dissenting that she is an attorney; (2) that she “represent[s] Mo hammedou Ould Salahi, a prisoner who has been held at Guantánamo Bay as an enemy combatant”; (3) that, “[i]n connection with [her] representation of Mr. Salahi, [she] receive[s] calls from time to time from Mr. Salahi’s brother, . . . a university student in Germany”; and (4) that she has been told that the Government has threatened Salahi “that his family members would be arrested and mis treated if he did not cooperate.” Id., at 349a–351a. The plaintiffs have noted that McKay no longer repre sents Mohammed and Royce no longer represents Ould Salahi. Brief for Respondents 15, n. 11. But these changes are irrelevant, for we assess standing as of the time a suit is filed, see Davis v. Federal Election Comm’n, 554 U. S. 724, 734 (2008), and in any event McKay himself continues to represent Al Hussayen, his partner now represents Mohammed, and Royce continues to represent individuals held in the custody of the U. S. military overseas. A third plaintiff, Joanne Mariner, says in her affidavit (1) that she is a human rights researcher, (2) that “some of the work [she] do[es] involves trying to track down people who were rendered by the CIA to countries in which they were tortured”; (3) that many of those people “the CIA has said are (or were) associated with terrorist organizations”; and (4) that, to do this research, she “communicate[s] by telephone and e-mail with . . . former detainees, lawyers for detainees, relatives of detainees, political activists, journalists, and fixers” “all over the world, including in Jordan, Egypt, Pakistan, Afghanistan, [and] the Gaza Strip.” App. to Pet. for Cert. 343a–344a. Other plaintiffs, including lawyers, journalists, and human rights researchers, say in affidavits (1) that they have jobs that require them to gather information from foreigners located abroad; (2) that they regularly com municate electronically (e.g., by telephone or e-mail) with 6 CLAPPER v. AMNESTY INTERNATIONAL USA
BREYER, J., dissenting foreigners located abroad; and (3) that in these communi cations they exchange “foreign intelligence information” as the Act defines it. Id., at 334a–375a. III Several considerations, based upon the record along with commonsense inferences, convince me that there is a very high likelihood that Government, acting under the authority of §1881a, will intercept at least some of the communications just described. First, the plaintiffs have engaged, and continue to engage, in electronic communica tions of a kind that the 2008 amendment, but not the prior Act, authorizes the Government to intercept. These com munications include discussions with family members of those detained at Guantanamo, friends and acquaintances of those persons, and investigators, experts and others with knowledge of circumstances related to terrorist activ ities. These persons are foreigners located outside the United States. They are not “foreign power[s]” or “agent[s] of . . . foreign power[s].” And the plaintiffs state that they exchange with these persons “foreign intelligence infor mation,” defined to include information that “relates to” “international terrorism” and “the national defense or the security of the United States.” See 50 U. S. C. §1801 (2006 ed. and Supp. V); see, e.g., App. to Pet. for Cert. 342a, 366a, 373a–374a. Second, the plaintiffs have a strong motive to engage in, and the Government has a strong motive to listen to, conversations of the kind described. A lawyer represent ing a client normally seeks to learn the circumstances surrounding the crime (or the civil wrong) of which the client is accused. A fair reading of the affidavit of Scott McKay, for example, taken together with elementary considerations of a lawyer’s obligation to his client, indi cates that McKay will engage in conversations that con cern what suspected foreign terrorists, such as his client, Cite as: 568 U. S. ____ (2013) 7
BREYER, J., dissenting have done; in conversations that concern his clients’ fami lies, colleagues, and contacts; in conversations that con cern what those persons (or those connected to them) have said and done, at least in relation to terrorist activities; in conversations that concern the political, social, and com mercial environments in which the suspected terrorists have lived and worked; and so forth. See, e.g., id., at 373a–374a. Journalists and human rights workers have strong similar motives to conduct conversations of this kind. See, e.g., id., at 342a (Declaration of Joanne Mari ner, stating that “some of the information [she] ex change[s] by telephone and e-mail relates to terrorism and counterterrorism, and much of the information relates to the foreign affairs of the United States”). At the same time, the Government has a strong motive to conduct surveillance of conversations that contain material of this kind. The Government, after all, seeks to learn as much as it can reasonably learn about suspected terrorists (such as those detained at Guantanamo), as well as about their contacts and activities, along with those of friends and family members. See Executive Office of the President, Office of Management and Budget, Statement of Administration Policy on S. 2248, p. 4 (Dec. 17, 2007) (“Part of the value of the [new authority] is to enable the Intelligence Community to collect expeditiously the com munications of terrorists in foreign countries who may contact an associate in the United States”). And the Gov ernment is motivated to do so, not simply by the desire to help convict those whom the Government believes guilty, but also by the critical, overriding need to protect America from terrorism. See id., at 1 (“Protection of the American people and American interests at home and abroad re quires access to timely, accurate, and insightful intelli gence on the capabilities, intentions, and activities of . . . terrorists”). Third, the Government’s past behavior shows that it has 8 CLAPPER v. AMNESTY INTERNATIONAL USA
BREYER, J., dissenting sought, and hence will in all likelihood continue to seek, information about alleged terrorists and detainees through means that include surveillance of electronic communications. As just pointed out, plaintiff Scott McKay states that the Government (under the authority of the pre-2008 law) “intercepted some 10,000 telephone calls and 20,000 email communications involving [his client] Mr. Al-Hussayen.” App. to Pet. for Cert. 370a. Fourth, the Government has the capacity to conduct electronic surveillance of the kind at issue. To some de gree this capacity rests upon technology available to the Government. See 1 D. Kris & J. Wilson, National Security Investigations & Prosecutions §16:6, p. 562 (2d ed. 2012) (“NSA’s technological abilities are legendary”); id., §16:12, at 572–577 (describing the National Security Agency’s capacity to monitor “very broad facilities” such as interna tional switches). See, e.g., Lichtblau & Risen, Spy Agency Mined Vast Data Trove, Officials Report, N. Y. Times, Dec. 24, 2005, p. A1 (describing capacity to trace and to analyze large volumes of communications into and out of the United States); Lichtblau & Shane, Bush is Pressed Over New Report on Surveillance, N. Y. Times, May 12, 2006, p. A1 (reporting capacity to obtain access to records of many, if not most, telephone calls made in the United States); Priest & Arkin, A Hidden World, Growing Beyond Control, Washington Post, July 19, 2010, p. A1 (reporting that every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, telephone calls and other types of communications). Cf. Statement of Administration Policy on S. 2248, supra, at 3 (rejecting a provision of the Senate bill that would require intelli gence analysts to count “the number of persons located in the United States whose communications were reviewed” as “impossible to implement” (internal quotation marks omitted)). This capacity also includes the Government’s authority to obtain the kind of information here at issue Cite as: 568 U. S. ____ (2013) 9
BREYER, J., dissenting from private carriers such as AT&T and Verizon. See 50 U. S. C. §1881a(h). We are further told by amici that the Government is expanding that capacity. See Brief for Electronic Privacy Information Center et al. as 22–23 (National Security Agency will be able to conduct surveil lance of most electronic communications between domestic and foreign points). Of course, to exercise this capacity the Government must have intelligence court authorization. But the Gov ernment rarely files requests that fail to meet the statu tory criteria. See Letter from Ronald Weich, Assistant Attorney General, to Joseph R. Biden, Jr., 1 (Apr. 30, 2012) (In 2011, of the 1,676 applications to the intelligence court, two were withdrawn by the Government, and the remaining 1,674 were approved, 30 with some mod ification), online at http://www.justice.gov/nsd/foia/ foia_library/2011fisa-ltr.pdf. (as visited Feb. 22, 2013, and available in Clerk of Court’s case file). As the intelligence court itself has stated, its review under §1881a is “nar rowly circumscribed.” In re Proceedings Required by §702(i) of the FISA Amendments Act of 2008, No. Misc. 08–01 (Aug. 17, 2008), p. 3. There is no reason to believe that the communications described would all fail to meet the conditions necessary for approval. Moreover, compared with prior law, §1881a simplifies and thus expedites the approval process, making it more likely that the Govern ment will use §1881a to obtain the necessary approval. The upshot is that (1) similarity of content, (2) strong motives, (3) prior behavior, and (4) capacity all point to a very strong likelihood that the Government will intercept at least some of the plaintiffs’ communications, including some that the 2008 amendment, §1881a, but not the pre 2008 Act, authorizes the Government to intercept. At the same time, nothing suggests the presence of some special factor here that might support a contrary conclu sion. The Government does not deny that it has both the 10 CLAPPER v. AMNESTY INTERNATIONAL USA
BREYER, J., dissenting motive and the capacity to listen to communications of the kind described by plaintiffs. Nor does it describe any system for avoiding the interception of an electronic com munication that happens to include a party who is an American lawyer, journalist, or human rights worker. One can, of course, always imagine some special circum stance that negates a virtual likelihood, no matter how strong. But the same is true about most, if not all, ordi nary inferences about future events. Perhaps, despite pouring rain, the streets will remain dry (due to the pres ence of a special chemical). But ordinarily a party that seeks to defeat a strong natural inference must bear the burden of showing that some such special circumstance exists. And no one has suggested any such special circum stance here. Consequently, we need only assume that the Govern ment is doing its job (to find out about, and combat, terror ism) in order to conclude that there is a high probability that the Government will intercept at least some elec tronic communication to which at least some of the plaintiffs are parties. The majority is wrong when it describes the harm threatened plaintiffs as “speculative.” IV A The majority more plausibly says that the plaintiffs have failed to show that the threatened harm is “certainly impending.” Ante, at 10 (internal quotation marks omit ted). But, as the majority appears to concede, see ante, at 15–16, and n. 5, certainty is not, and never has been, the touchstone of standing. The future is inherently uncer tain. Yet federal courts frequently entertain actions for injunctions and for declaratory relief aimed at preventing future activities that are reasonably likely or highly likely, but not absolutely certain, to take place. And that degree of certainty is all that is needed to support standing here. Cite as: 568 U. S. ____ (2013) 11
BREYER, J., dissenting The Court’s use of the term “certainly impending” is not to the contrary. Sometimes the Court has used the phrase “certainly impending” as if the phrase described a suffi- cient, rather than a necessary, condition for jurisdiction. See Pennsylvania v. West Virginia, 262 U. S. 553, 593 (1923) (“If the injury is certainly impending that is enough”). See also Babbitt, 442 U. S., at 298 (same). On other occasions, it has used the phrase as if it concerned when, not whether, an alleged injury would occur. Thus, in Lujan, 504 U. S., at 564, n. 2, the Court considered a threatened future injury that consisted of harm that plaintiffs would suffer when they “soon” visited a gov ernment project area that (they claimed) would suffer environmental damage. The Court wrote that a “mere pro fession of an intent, some day, to return” to the project area did not show the harm was “imminent,” for “soon” might mean nothing more than “in this lifetime.” Id., at 564– 565, n. 2 (internal quotation marks omitted). Similarly, in McConnell v. Federal Election Comm’n, 540 U. S. 93 (2003), the Court denied standing because the Senator’s future injury (stemming from a campaign finance law) would not affect him until his reelection. That fact, the Court said, made the injury “too remote temporally to satisfy Article III standing.” Id., at 225–226.
On still other occasions, recognizing that “ ‘ imminence’ is concededly a somewhat elastic concept,” Lujan, supra, at 565, n. 2, the Court has referred to, or used (sometimes along with “certainly impending”) other phrases such as “reasonable probability” that suggest less than absolute, or literal certainty. See Babbitt, supra, at 298 (plaintiff “must demonstrate a realistic danger of sustaining a direct injury” (emphasis added)); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 190 (2000) (“[I]t is the plaintiff ’s burden to establish standing by demonstrating that . . . the defendant’s alleg edly wrongful behavior will likely occur or continue”). See 12 CLAPPER v. AMNESTY INTERNATIONAL USA
BREYER, J., dissenting also Monsanto Co. v. Geertson Seed Farms, 561 U. S. ___,
___ (2010) (slip op., at 11) (“ ‘ “reasonable probability” ’” and “substantial risk”); Davis, 554 U. S., at 734 (“realistic and impending threat of direct injury”); MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118, 129 (2007) (“genuine threat of enforcement”); Department of Commerce v. United States House of Representatives, 525 U. S. 316, 333 (1999) (“substantially likely” (internal quotation marks omitted)); Clinton v. City of New York, 524 U. S. 417, 432 (1998) (“sufficient likelihood of economic injury”); Pennell v. San Jose, 485 U. S. 1, 8 (1988) (“realistic danger” (inter nal quotation marks omitted)); Blum v. Yaretsky, 457 U. S. 991, 1001 (1982) (“quite realistic” threat); Bryant v. Yellen, 447 U. S. 352, 367–368 (1980) (“likely”); Buckley v. Valeo, 424 U. S. 1, 74 (1976) (per curiam) (“reasonable probabil ity”). Taken together the case law uses the word “certain ly” as if it emphasizes, rather than literally defines, the immediately following term “impending.” B 1 More important, the Court’s holdings in standing cases show that standing exists here. The Court has often found standing where the occurrence of the relevant injury was far less certain than here. Consider a few, fairly typical, cases. Consider Pennell, supra. A city ordinance forbade landlords to raise the rent charged to a tenant by more than 8 percent where doing so would work an unreasona bly severe hardship on that tenant. Id., at 4–5. A group of landlords sought a judgment declaring the ordinance unconstitutional. The Court held that, to have standing, the landlords had to demonstrate a “ ‘realistic danger of sustaining a direct injury as a result of the statute’s opera tion.’ ” Id., at 8 (emphasis added). It found that the land lords had done so by showing a likelihood of enforcement and a “probability,” ibid., that the ordinance would make Cite as: 568 U. S. ____ (2013) 13
BREYER, J., dissenting the landlords charge lower rents—even though the land lords had not shown (1) that they intended to raise the relevant rents to the point of causing unreasonably severe hardship; (2) that the tenants would challenge those in creases; or (3) that the city’s hearing examiners and arbi trators would find against the landlords. Here, even more so than in Pennell, there is a “realistic danger” that the relevant harm will occur. Or, consider Blum, supra. A group of nursing home residents receiving Medicaid benefits challenged the con stitutionality (on procedural grounds) of a regulation that permitted their nursing home to transfer them to a less desirable home. Id., at 999–1000. Although a Medicaid committee had recommended transfers, Medicaid-initiated transfer had been enjoined and the nursing home itself had not threatened to transfer the plaintiffs. But the Court found “standing” because “the threat of transfers” was “not ‘imaginary or speculative’ ” but “quite realistic,” hence “sufficiently substantial.” Id., at 1000–1001 (quot ing Younger v. Harris, 401 U. S. 37, 42 (1971)). The plain tiffs’ injury here is not imaginary or speculative, but “quite realistic.” Or, consider Davis, supra. The plaintiff, a candidate for the United States House of Representatives, self-financed his campaigns. He challenged the constitutionality of an election law that relaxed the limits on an opponent’s con tributions when a self-financed candidate’s spending itself exceeded certain other limits. His opponent, in fact, had decided not to take advantage of the increased contribu tion limits that the statute would have allowed. Id., at 734. But the Court nonetheless found standing because there was a “realistic and impending threat,” not a cer tainty, that the candidate’s opponent would do so at the time the plaintiff filed the complaint. Id., at 734–735. The threat facing the plaintiffs here is as “realistic and impending.” 14 CLAPPER v. AMNESTY INTERNATIONAL USA
BREYER, J., dissenting Or, consider MedImmune, supra. The plaintiff, a patent licensee, sought a declaratory judgment that the patent was invalid. But, the plaintiff did not face an imminent threat of suit because it continued making royalty pay ments to the patent holder. In explaining why the plain tiff had standing, we (1) assumed that if the plaintiff stopped making royalty payments it would have standing (despite the fact that the patent holder might not bring suit), (2) rejected the Federal Circuit’s “reasonable ap prehension of imminent suit” requirement, and (3) in stead suggested that a “genuine threat of enforcement” was likely sufficient. Id., at 128, 129, 132, n. 11 (internal quotation marks omitted). A “genuine threat” is present here. Moreover, courts have often found probabilistic injuries sufficient to support standing. In Duke Power Co. v. Caro- lina Environmental Study Group, Inc., 438 U. S. 59 (1978), for example, the plaintiffs, a group of individuals living near a proposed nuclear powerplant, challenged the con stitutionality of the Price-Anderson Act, a statute that limited the plant’s liability in the case of a nuclear acci dent. The plaintiffs said that, without the Act, the de fendants would not build a nuclear plant. And the building of the plant would harm them, in part, by emitting “non-natural radiation into [their] environment.” Id., at 74. The Court found standing in part due to “our general ized concern about exposure to radiation and the appre hension flowing from the uncertainty about the health and genetic consequences of even small emissions.” Ibid. (emphasis added). See also Monsanto Co., supra, at ___ (slip op., at 11–12) (“A substantial risk of gene flow injures respondents in several ways” (emphasis added)). See also lower court cases, such as Mountain States Legal Foundation v. Glickman, 92 F. 3d 1228, 1234–1235 (CADC 1996) (plaintiffs attack Government decision to limit timber harvesting; standing based upon increased Cite as: 568 U. S. ____ (2013) 15
BREYER, J., dissenting risk of wildfires); Natural Resources Defense Council v. EPA, 464 F. 3d 1, 7 (CADC 2006) (plaintiffs attack Gov ernment decision deregulating methyl bromide; standing based upon increased lifetime risk of developing skin cancer); Constellation Energy Commodities Group, Inc. v. FERC, 457 F. 3d 14, 20 (CADC 2006) (standing based on increased risk of nonrecovery inherent in the reduction of collateral securing a debt of uncertain amount); Sutton v. St. Jude Medical S. C., Inc., 419 F. 3d 568, 570–575 (CA6 2005) (standing based on increased risk of harm caused by implantation of defective medical device); Johnson v. Allsteel, Inc., 259 F. 3d 885, 888–891 (CA7 2001) (stand ing based on increased risk that Employee Retirement Income Security Act beneficiary will not be covered due to increased amount of discretion given to ERISA administrator). How could the law be otherwise? Suppose that a federal court faced a claim by homeowners that (allegedly) unlaw ful dam-building practices created a high risk that their homes would be flooded. Would the court deny them standing on the ground that the risk of flood was only 60, rather than 90, percent? Would federal courts deny standing to a plaintiff in a diversity action who claims an anticipatory breach of contract where the future breach depends on probabilities? The defendant, say, has threatened to load wheat onto a ship bound for India despite a promise to send the wheat to the United States. No one can know for certain that this will happen. Perhaps the defendant will change his mind; perhaps the ship will turn and head for the United States. Yet, despite the uncertainty, the Constitution does not prohibit a federal court from hearing such a claim. See 23 R. Lord, Williston on Contracts §63:35 (4th ed. 2002) (plaintiff may bring an anticipatory breach suit even though the defendant’s promise is one to perform in the future, it has not yet been broken, and defendant may still 16 CLAPPER v. AMNESTY INTERNATIONAL USA
BREYER, J., dissenting retract the repudiation). E.g., Wisconsin Power & Light Co. v. Century Indemnity Co., 130 F. 3d 787, 792–793 (CA7 1997) (plaintiff could sue insurer that disclaimed liability for all costs that would be incurred in the future if environmental agencies required cleanup); Combs v. In- ternational Ins. Co., 354 F. 3d 568, 598–601 (CA6 2004) (similar). Would federal courts deny standing to a plaintiff who seeks to enjoin as a nuisance the building of a nearby pond which, the plaintiff believes, will very likely, but not inevi tably, overflow his land? See 42 Am. Jur. 2d Injunctions §§2, 5 (2010) (noting that an injunction is ordinarily pre ventive in character and restrains actions that have not yet been taken, but threaten injury). E.g., Central Delta Water Agency v. United States, 306 F. 3d 938, 947–950 (CA9 2002) (standing to seek injunction where method of operating dam was highly likely to severely hamper plain tiffs’ ability to grow crops); Consolidated Companies, Inc. v. Union Pacific R. Co., 499 F. 3d 382, 386 (CA5 2007) (standing to seek injunction requiring cleanup of land adjacent to plaintiff ’s tract because of threat that contam inants might migrate to plaintiff ’s tract). Neither do ordinary declaratory judgment actions al ways involve the degree of certainty upon which the Court insists here. See, e.g., Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941) (insurance com pany could seek declaration that it need not pay claim against insured automobile driver who was in an accident even though the driver had not yet been found liable for the accident); Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 239–244 (1937) (insurance company could seek decla ration that it need not pay plaintiff for disability although plaintiff had not yet sought disability payments). See also, e.g., Associated Indemnity Corp. v. Fairchild Indus- tries, Inc., 961 F. 2d 32, 35–36 (CA2 1992) (insured could seek declaration that insurance company must pay liabil Cite as: 568 U. S. ____ (2013) 17
BREYER, J., dissenting ity even before insured found liable). 2 In some standing cases, the Court has found that a reasonable probability of future injury comes accompanied with present injury that takes the form of reasonable efforts to mitigate the threatened effects of the future injury or to prevent it from occurring. Thus, in Monsanto Co., 561 U. S., at ___ (slip op., at 11–14) plaintiffs, a group of conventional alfalfa growers, challenged an agency decision to deregulate genetically engineered alfalfa. They claimed that deregulation would harm them because their neighbors would plant the genetically engineered seed, bees would obtain pollen from the neighbors’ plants, and the bees would then (harmfully) contaminate their own conventional alfalfa with the genetically modified gene. The lower courts had found a “reasonable probability” that this injury would occur. Ibid. (internal quotation marks omitted). Without expressing views about that probability, we found standing because the plaintiffs would suffer present harm by trying to combat the threat. Ibid. The plaintiffs, for example, “would have to conduct testing to find out whether and to what extent their crops have been contam inated.” Id., at ___ (slip op., at 12). And they would have to take “measures to minimize the likelihood of potential contamination and to ensure an adequate supply of non-genetically-engineered alfalfa.” Ibid. We held that these “harms, which [the plaintiffs] will suffer even if their crops are not actually infected with” the genetically modified gene, “are sufficiently concrete to satisfy the injury-in-fact prong of the constitutional standing analysis.” Id., at ___ (slip op., at 13). Virtually identical circumstances are present here. Plaintiff McKay, for example, points out that, when he communicates abroad about, or in the interests of, a client 18 CLAPPER v. AMNESTY INTERNATIONAL USA
BREYER, J., dissenting (e.g., a client accused of terrorism), he must “make an assessment” whether his “client’s interests would be com promised” should the Government “acquire the communi cations.” App. to Pet. for Cert. 375a. If so, he must either forgo the communication or travel abroad. Id., at 371a– 372a (“I have had to take measures to protect the confi dentiality of information that I believe is particularly sensitive,” including “travel that is both time-consuming and expensive”). Since travel is expensive, since forgoing communication can compromise the client’s interests, since McKay’s as sessment itself takes time and effort, this case does not differ significantly from Monsanto. And that is so whether we consider the plaintiffs’ present necessary expenditure of time and effort as a separate concrete, particularized, imminent harm, or consider it as additional evidence that the future harm (an interception) is likely to occur. See also Friends of the Earth, Inc., 528 U. S., at 183–184 (hold ing that plaintiffs who curtailed their recreational activi ties on a river due to reasonable concerns about the effect of pollutant discharges into that river had standing); Meese v. Keene, 481 U. S. 465, 475 (1987) (stating that “the need to take . . . affirmative steps to avoid the risk of harm . . . constitutes a cognizable injury”). 3 The majority cannot find support in cases that use the words “certainly impending” to deny standing. While I do not claim to have read every standing case, I have exam ined quite a few, and not yet found any such case. The majority refers to Whitmore v. Arkansas, 495 U. S. 149 (1990). But in that case the Court denied standing to a prisoner who challenged the validity of a death sentence given to a different prisoner who refused to challenge his own sentence. The plaintiff feared that in the absence of an appeal, his fellow prisoner’s death sentence would be Cite as: 568 U. S. ____ (2013) 19
BREYER, J., dissenting missing from the State’s death penalty database and thereby skew the database against him, making it less likely his challenges to his own death penalty would suc ceed. The Court found no standing. Id., at 161. But the fellow prisoner’s lack of appeal would have harmed the plaintiff only if (1) the plaintiff separately obtained federal habeas relief and was then reconvicted and resentenced to death, (2) he sought review of his new sentence, and (3) during that review, his death sentence was affirmed only because it was compared to an artificially skewed data base. Id., at 156–157. These events seemed not very likely to occur. In DaimlerChrysler Corp. v. Cuno, 547 U. S. 332 (2006), taxpayers challenged the constitutionality of a tax break offered by state and local governments to a car manufac turer. We found no standing. But the plaintiffs would have suffered resulting injury only if that the tax break had depleted state and local treasuries and the legislature had responded by raising their taxes. Id., at 344. In Lujan, the case that may come closest to supporting the majority, the Court also found no standing. But, as I pointed out, supra, at 11, Lujan is a case where the Court considered when, not whether, the threatened harm would occur. 504 U. S., at 564, n. 2. The relevant injury there consisted of a visit by environmental group’s members to a project site where they would find (unlawful) environmen tal depredation. Id., at 564. The Court pointed out that members had alleged that they would visit the project sites “soon.” But it wrote that “soon” might refer to almost any time in the future. Ibid., n. 2. By way of contrast, the ongoing threat of terrorism means that here the relevant interceptions will likely take place imminently, if not now. The Court has, of course, denied standing in other cases. But they involve injuries less likely, not more likely, to occur than here. In a recent case, Summers v. Earth Island Institute, 555 U. S. 488 (2009), for example, the 20 CLAPPER v. AMNESTY INTERNATIONAL USA
BREYER, J., dissenting plaintiffs challenged a regulation exempting certain tim ber sales from public comment and administrative appeal. The plaintiffs claimed that the regulations injured them by interfering with their esthetic enjoyment and recrea tional use of the forests. The Court found this harm too unlikely to occur to support standing. Id., at 496. The Court noted that one plaintiff had not pointed to a specific affected forest that he would visit. The Court concluded that “[t]here may be a chance, but . . . hardly a likelihood,” that the plaintiff ’s “wanderings will bring him to a parcel about to be affected by a project unlawfully subject to the regulations.” Id., at 495 (emphasis added). 4 In sum, as the Court concedes, see ante, at 15–16, and n. 5, the word “certainly” in the phrase “certainly impend ing” does not refer to absolute certainty. As our case law demonstrates, what the Constitution requires is some thing more akin to “reasonable probability” or “high prob ability.” The use of some such standard is all that is necessary here to ensure the actual concrete injury that the Constitution demands. The considerations set forth in Parts II and III, supra, make clear that the standard is readily met in this case. * * * While I express no view on the merits of the plaintiffs’ constitutional claims, I do believe that at least some of the plaintiffs have standing to make those claims. I dissent, with respect, from the majority’s contrary conclusion. 42 277 FEDERAL SUPPLEMENT, 3d SERIES
Court notes first that it is not certain that caust, alleging conversion, unjust enrich- the defendant is eligible for a reduction ment, false imprisonment, torture, assault, under section 3582(c)(2) because it is not and violations of international law. The clear that he was sentenced ‘‘based on’’ a United States District Court for the Dis- sentencing range that has subsequently trict of Columbia, 37 F.Supp.3d 381, dis- been reduced: the sentence varied from missed on basis that defendants were en- the then-applicable sentencing range. titled to sovereign immunity under the And second, the Court finds in any event Foreign Sovereign Immunities Act that a reduction is not warranted, because (FSIA). Survivors appealed. The Court of at the time the sentence was imposed, the Appeals, Srinivasan, Circuit Judge, 812 defendant was aware of the potential F.3d 127, affirmed in part, reversed in change to the Sentencing Guidelines, and part, and remanded. Following remand, he agreed to proceed to sentencing on the survivors filed second amended complaint, basis of the previously negotiated Rule and defendants filed motion to dismiss. 11(c)(1)(C) plea agreement. Moreover, the Holdings: The District Court, Beryl A. sentence imposed was, and still is, consis- Howell, Chief Judge, held that: tent with a full and fair consideration of (1) under the prudential exhaustion doc- the factors in section 3553(a). trine, survivors were required to ex- Therefore, the defendant’s motion is haust their Hungarian remedies before DENIED. bringing suit in the United States, and (2) the doctrine of forum non conveniens also warranted dismissal of action , without prejudice. Motion granted.
1. Federal Courts O2393 Rosalie SIMON, et al., Individually, Defendants’ arguments concerning for themselves and for all others dismissal on grounds of sovereign immuni- similarly situated Plaintiffs, ty did not have to be considered by the district court where defendants’ motion to v. dismiss would be resolved on alternative REPUBLIC OF HUNGARY, grounds, namely, prudential exhaustion et al., Defendants. and forum non conveniens.
Civil Action No. 10–1770 (BAH) 2. Federal Courts O2080 United States District Court, Although both forum non conveniens District of Columbia. and exhaustion are prudential doctrines that fall outside the standard procedural Signed 09/30/2017 devices used by trial courts in service of Background: Fourteen Hungarian Jew- the paramount command of the Federal ish survivors of the Hungarian Holocaust Rules of Civil Procedure, namely, the just, brought putative class action against the speedy, and inexpensive resolution of dis- Republic of Hungary and the Hungarian putes, in considering dismissal of a case on state-owned railway arising from partic- prudential grounds, the norm in reviewing ipation in and perpetration of the Holo- a motion to dismiss under the rule govern- SIMON v. REPUBLIC OF HUNGARY 43 Cite as 277 F.Supp.3d 42 (D.D.C. 2017)
ing motions to dismiss is followed, and the exhaust domestic remedies, except where court must accept as true all material alle- those remedies are futile or imaginary. gations of the complaint, and must con- 7. International Law O10.33 strue the complaint in favor of the com- Requirement that domestic remedies plaining party. Fed. R. Civ. P. 12(b). for expropriation be exhausted before in- 3. Federal Courts O2081 ternational proceedings may be instituted In considering dismissal of a case on against a state is not required by the prudential grounds, inferences drawn by Foreign Sovereign Immunities Act (FSIA), the plaintiff that are unsupported by facts but is ‘‘made clear’’ from the statute’s reli- alleged in the complaint or amount merely ance on international law norms, such as to legal conclusions need not be accepted. exhaustion. 28 U.S.C.A. § 1605(a)(3). O 4. Federal Courts O2080 8. International Law 10.33 In considering dismissal of a case on Several factors would be considered in prudential grounds, similarly to evaluating determining whether Hungarian courts the jurisdictional sufficiency of a com- would be so obviously incapable of provid- plaint, the court may consider materials ing a fair and impartial hearing on plain- outside the pleadings. tiffs’ takings claims against the state that a United States court should step in and O 5. International Law 10.12, 10.33 entertain plaintiffs’ claims under the ex- Exhaustion inquiry for claims brought propriation exception to the Foreign Sov- in the United States under the expropria- ereign Immunities Act (FSIA): (1) whether tion exception to the Foreign Sovereign Hungarian law provided sufficiently con- Immunities Act (FSIA) must answer two gruent judicial remedies, (2) the existence questions: (1) whether plaintiffs have al- of ‘‘procedural obstacles’’ to those reme- leged a taking in violation of international dies, such that the remedy provided by the law where international law favors giving a alternative forum was so clearly inade- state accused of taking property in viola- quate or unsatisfactory that it was no rem- tion of international law an opportunity to edy at all, a high bar borrowed from the redress it by its own means, within the related context of forum non conveniens, framework of its own legal system, before and (3) the adequacy of Hungarian courts the same alleged taking may be aired in in light of recent limits on judicial indepen- foreign courts, and (2) whether plaintiffs dence. 28 U.S.C.A. § 1605(a)(3). have exhausted domestic remedies in the 9. International Law O10.33 country where the taking occurred or, if not, whether plaintiffs can show convinc- Pursuant to the prudential exhaustion ingly that such remedies are clearly a doctrine, Hungarian Jewish survivors of sham or inadequate or that their applica- Hungarian Holocaust who asserted geno- tion is unreasonably prolonged, such that cidal takings claims against Republic of it could not be worthwhile to bring suit Hungary and Hungarian state-owned rail- there. 28 U.S.C.A. § 1605(a)(3). way were required to exhaust their Hun- garian remedies before bringing suit in 6. International Law O10.33 United States under expropriation excep- Principles of international comity tion to Foreign Sovereign Immunities Act make clear that plaintiffs asserting claims (FSIA); international comity consider- against a state for taking property in viola- ations, including concerns about potential tion of international law must attempt to foreign policy consequences of U.S. 44 277 FEDERAL SUPPLEMENT, 3d SERIES
courts’ involvement in foreign affairs, de- forum will ordinarily be found adequate so sire to minimize international friction, and long as the defendant is amenable to pro- historical and political significance of sur- cess in that jurisdiction. 28 U.S.C.A. vivors’ claims, favored dismissal without § 1605(a)(3). prejudice, and survivors did not show that 14. International Law O10.33 attempting to exhaust claims would be fu- In rare circumstances where remedy tile or that Hungarian courts would not offered by other forum is clearly unsatis- provide adequate alternative forum, as factory, that forum may not be an ade- Hungarian constitution prohibited discrim- quate alternative, for purposes of ‘‘futility’’ ination, Hungary recognized and enforced exception to requirement that domestic international law, and survivors’ claims remedies for expropriation by a foreign were redressable by, and not time-barred state be exhausted before plaintiffs may under, Hungarian law. 28 U.S.C.A. institute proceedings in the United States § 1605(a)(3). under the expropriation exception to the 10. Federal Courts O2971 Foreign Sovereign Immunities Act (FSIA). 28 U.S.C.A. § 1605(a)(3). Doctrine of forum non conveniens re- mains fully applicable in Foreign Sover- 15. International Law O10.33 eign Immunities Act (FSIA) cases despite For purposes of ‘‘futility’’ exception to lacking a statutory basis. 28 U.S.C.A. requirement that domestic remedies for § 1602 et seq. expropriation by a foreign state be ex- hausted before plaintiffs may institute pro- 11. Courts O512 ceedings in the United States under the Where claims arise from events of expropriation exception to the Foreign historical and political significance, there is Sovereign Immunities Act (FSIA), foreign a comity interest in allowing a foreign forum is not inadequate merely because it state to use its own courts for a dispute if has less favorable substantive law, because it has a right to do so. it employs different adjudicative proce- 12. International Law O10.38 dures, or because of general allegations of Plaintiffs who were required to ex- corruption in the judicial system. 28 haust their domestic remedies against a U.S.C.A. § 1605(a)(3). foreign state before proceeding in the 16. International Law O10.33 United States under the expropriation ex- Mere fact that plaintiffs may not be ception to the Foreign Sovereign Immuni- successful on the merits of their claims in ties Act (FSIA) bore the burden of demon- domestic forum falls far short of showing strating that attempting to exhaust any of ‘‘futility’’ of exhausting domestic remedies, their claims would be futile. 28 U.S.C.A. for purposes of ‘‘futility’’ exception to re- § 1605(a)(3). quirement that domestic remedies for ex- 13. International Law O10.33 propriation by a foreign state be exhausted before plaintiffs may institute proceedings For purposes of ‘‘futility’’ exception to in the United States under the expropria- requirement that domestic remedies for tion exception to the Foreign Sovereign expropriation by a foreign state be ex- Immunities Act (FSIA). 28 U.S.C.A. hausted before plaintiffs may institute pro- § 1605(a)(3). ceedings in the United States under the See publication Words and Phrases expropriation exception to the Foreign for other judicial constructions and Sovereign Immunities Act (FSIA), foreign definitions. SIMON v. REPUBLIC OF HUNGARY 45 Cite as 277 F.Supp.3d 42 (D.D.C. 2017)
17. International Law O10.33 private interests, the alternative forum is That plaintiffs’ recovery in a domestic the strongly preferred location for the liti- forum may be less than they could recover gation. in the United States does not make the 21. Federal Courts O2979 domestic forum inadequate, for purposes of ‘‘futility’’ exception to requirement that Under the doctrine of forum non con- domestic remedies for expropriation by a veniens, in evaluating whether private in- foreign state be exhausted before plaintiffs terest factors weigh in favor of plaintiff’s may institute proceedings in the United chosen forum or the foreign forum, court States under the expropriation exception considers: (1) the relative ease of access to to the Foreign Sovereign Immunities Act sources of proof, (2) the availability of (FSIA). 28 U.S.C.A. § 1605(a)(3). process for compelling unwilling witnesses, (3) the cost for obtaining attendance of 18. International Law O10.33 willing witnesses, (4) the possibility of in- Lack of availability of ‘‘American-style specting the premises, if appropriate, and class actions’’ in a foreign country does not (5) all other practical problems that make deprive plaintiffs of the ability to bring trial of a case easy, expeditious, and inex- their claims in that country, for purposes pensive. of ‘‘futility’’ exception to requirement that domestic remedies for expropriation by a 22. Federal Courts O2979 foreign state be exhausted before plaintiffs Under the doctrine of forum non con- may institute proceedings in the United veniens, relevant public factors to be con- States under the expropriation exception sidered include: (1) local interest in having to the Foreign Sovereign Immunities Act localized controversies decided at home, (2) (FSIA). 28 U.S.C.A. § 1605(a)(3). possibility of holding trial in a forum at 19. International Law O10.33 home with the law that must govern the Possibility that plaintiffs would be re- case, rather than having court in some quired to pay opposing parties’ fees if they other forum untangle problems in conflict are unsuccessful in court is insufficient to of laws, and in law foreign to itself, (3) show that that forum is inadequate or that avoiding the imposition of jury duty on proceeding there would be futile, for pur- people of a community which has no rela- poses of ‘‘futility’’ exception to requirement tion to the litigation, and (4) other adminis- that domestic remedies for expropriation trative difficulties that flow from foreign by a foreign state be exhausted before litigation congesting local courts. plaintiffs may institute proceedings in the 23. Federal Courts O2971 United States under the expropriation ex- Courts do not apply ‘‘rigid rule’’ to ception to the Foreign Sovereign Immuni- decide a motion to dismiss on the grounds ties Act (FSIA). 28 U.S.C.A. § 1605(a)(3). of forum non conveniens, and each case 20. Federal Courts O2979, 2982 turns on its facts. Despite the substantial presumption O in favor of a plaintiff’s choice of forum, 24. Federal Courts 2992(2) court may nonetheless dismiss a suit for Defendant is not required to carry out forum non conveniens if the defendant extensive investigation in support of its shows that: (1) there is an alternative fo- motion to dismiss on basis of forum non rum that is both available and adequate conveniens, as such requirement would de- and, (2) upon a weighing of public and feat purpose of such motion, but only must 46 277 FEDERAL SUPPLEMENT, 3d SERIES
provide enough information to enable the 28. Federal Courts O2979 district court to balance the parties’ inter- Fact that a particular foreign country ests. was a plaintiff in the United States for one particular action did not mean that it for- O 25. Federal Courts 2971 feited a forum non conveniens claim in a Pursuant to the doctrine of forum non separate case. conveniens, dismissal without prejudice 29. Federal Courts O2978 was warranted with respect to putative Under the doctrine of forum non con- class action brought in United States by veniens, regardless of whether a court ulti- Hungarian Jewish survivors of Hungarian mately is required to apply the law of a Holocaust against Republic of Hungary foreign country, the mere issue of untan- and Hungarian state-owned railway; Hun- gling problems in conflict of laws supports gary was both available and adequate al- dismissing a case in favor of the foreign ternative forum, survivors’ choice of U.S. forum. forum was entitled to only minimal defer- ence given their attenuated ties to the forum and because no underlying facts of case related in any way to the U.S. but, instead, related to Hungary, any relevant Charles Samuel Fax, Rifkin, Weiner, records, which were most likely written in Livingston, Levitan & Silver, LLC, Hungarian, were located in Hungary, as Bethesda, MD, David H. Weinstein, Pro were most witnesses with relevant person- Hac Vice, Weinstein Kitchenoff & Asher al knowledge, Hungarian courts had power LLC, Philadelphia, PA, Lawrence Marc Zell, Pro Hac Vice, Jerusalem, Israel, Paul to compel testimony and production of rec- G. Gaston, Law Offices of Paul G. Gaston, ords, jurisdictional defect with respect to Washington, DC, for Plaintiff. dismissed defendant would not be present in Hungary, and key public interest fac- Holly Elizabeth Loiseau, Weil, Gotshal tors, including Hungary’s moral interest in & Manges, L.L.P., Washington, DC, Brian hearing survivors’ property claims, strong- Keith Gibson, Pro Hac Vice, Konrad Lee ly favored dismissal. Cailteux, Weil, Gotshal & Manges, LLP, New York, NY, for Defendant. 26. Federal Courts O2973 MEMORANDUM OPINION Under the doctrine of forum non con- veniens, the deference given to a plaintiff’s BERYL A. HOWELL, Chief Judge forum choice is lessened when the plain- The named plaintiffs in this proposed tiff’s ties to the forum are attenuated. class action, Rosalie Simon, Helen Her- man, Charlotte Weiss, Helena Weksberg, 27. Federal Courts O2979 Rose Miller, Tzvi Zelikovitch, Magda Ko- Under the doctrine of forum non con- polovich Bar–Or, Zehava (Olga) Friedman, veniens, where an adequate alternative fo- Yitzhak Pressburger, Alexander Speiser, rum exists, court must balance enumerat- Ze–ev Tibi Ram, Vera Deutsch Danos, Ella ed private interest factors to decide Feuerstein Schlanger, and Moshe Perel whether trial in the chosen forum would (collectively, ‘‘the plaintiffs’’), are fourteen be unnecessarily burdensome for the de- of the approximately 825,000 Hungarian fendant or the court. Jews who were subjected to the atrocities SIMON v. REPUBLIC OF HUNGARY 47 Cite as 277 F.Supp.3d 42 (D.D.C. 2017)
and horrors of the Holocaust at the hands States courts,’’ id. at 132–33, as well as of the Hungarian government between ‘‘any other arguments’’ previously raised 1941 and 1945. Second Am. Compl. by the defendants ‘‘that [the Court] has (‘‘SAC’’) ¶¶ 5–9, 14, 22, 28, 39, 41, 49, 65, yet to reach TTT such as the defendants’ 73, 81, 131, ECF No. 118. The plaintiffs forum non conveniens arguments,’’ id. at instituted this suit against the Republic of 151, were expressly left to this Court to Hungary (‘‘Hungary’’) and the Hungarian consider on remand. national railway, Magyar Allamvasutaki The defendants now seek to dismiss the Zrt. (‘‘MAV’’),i (collectively, ‘‘the Defen- dants’’) seeking restitution for the proper- plaintiffs’ Second Amended Complaint, ty seized from them as part of Hungary’s which was filed after remand. Defs.’ Mot. broader effort to eradicate the Jewish peo- Dismiss SAC (‘‘Defs.’ Mot.’’), ECF No. ple. SAC ¶¶ 173–215.1 120. For the reasons explained below, the plaintiffs are required to exhaust their In 2014, this Court dismissed the plain- Hungarian remedies before bringing suit tiffs’ case, holding that in light of a treaty in the United States under the prudential between the United States and Hungary, exhaustion doctrine and, since they have the defendants were entitled to sovereign not done so, the defendants’ motion to immunity under the Foreign Sovereign dismiss is granted, without prejudice, on Immunities Act (‘‘FSIA’’), 28 U.S.C. §§ 1605–07. Simon v. Republic of Hunga- that ground as well as under the forum 2 ry (‘‘Simon I’’), 37 F.Supp.3d 381, 424 non conveniens doctrine. (D.D.C. 2014). The case now returns on remand from the D.C. Circuit, which re- I. BACKGROUND jected the application of the treaty excep- The factual background of this case has tion under the FSIA, and held that the been extensively reviewed in prior deci- FSIA ‘‘expropriation exception’’ may pro- sions of this Court and the D.C. Circuit, vide a waiver of the defendants’ sovereign see generally Simon I, 37 F.Supp.3d at immunity. Simon v. Republic of Hungary 385–95; see also Simon II, 812 F.3d at (‘‘Simon II’’), 812 F.3d 127, 149 (D.C. Cir. 132–34, and, consequently, that back- 2016). The D.C. Circuit further held ‘‘that ground, as set out in the Second Amended the plaintiffs’ claims do not constitute non- Complaint, will only be briefly summarized justiciable political questions falling out- below, followed by review of the relevant side of the Judiciary’s cognizance,’’ id. at procedural history. 132; id. at 151, but left unresolved the applicability of other prudential doctrines. A. Factual Background Instead, ‘‘whether, as a matter of interna- tional comity, the plaintiffs must first ex- In 1944, ‘‘the Nazis and Hungary, know- haust available remedies in Hungary be- ing they had lost [the war], raced to com- fore proceeding with their claims in United plete their eradication of the Jews before
1. The plaintiffs’ initial complaint named a F.Supp.3d 381, 444 (D.D.C. 2014), a ruling third defendant, Rail Cargo Hungaria Zrt. not appealed by the plaintiffs. (‘‘RCH’’), which is a freight rail company that 2. Given the ample papers and accompanying is the successor-in-interest to MAVi Cargo Aru-i exhibits submitted by the parties, the defen- fuvarozasi´ Zrt., f/k/a MAVi Cargo Zrt., a for- dants’ request for an oral hearing is denied. mer division of MAV.i RCH was dismissed for Defs.’ Mot. at 1, ECF No. 120; see LCvR. 7(f) lack of personal jurisdiction, see Simon v. (granting request for oral hearing ‘‘shall be Republic of Hungary (‘‘Simon I’’), 37 within the discretion of the Court’’). 48 277 FEDERAL SUPPLEMENT, 3d SERIES
the Axis surrendered.’’ SAC ¶ 3. As part of CAUST IN HUNGARY, 1308–09 (rev. ed. their greater plan to eradicate the Jewish 1994)). The plaintiffs acknowledge that the people, the defendants stripped Hungarian Hungarian government ‘‘implement[ed] an Jews of their possessions, including cash, array of legislative enactments and reme- jewelry, heirlooms, art, valuable collect- dial statutes,’’ but Hungarian Jews ‘‘saw ibles, and gold and silver, loaded them no tangible results with respect to restitu- onto trains, and transported them in squal- tion and indemnification’’ for their seized id conditions to concentration camps where property. Id. Moreover, ‘‘[w]ith the com- they were either murdered or forced to munist party in power in Hungary’’ after work as slave laborers. Id. ¶¶ 17, 20, 23–26, World War II, ‘‘ ‘the issue of compensation 32–34, 44–48, 52, 57, 69–71, 76, 81. ‘‘In less or restitution was squashed,’ ’’ and to the than two months TTT over 430,000 Hungar- extent the Hungarian government had set ian Jews were deported, mostly to Aus- aside funds for victims of the Holocaust, chwitz, in 147 trains,’’ id. ¶ 120; id., Exhib- ‘‘the funds were rarely used for their in- it B (list of deportation trains in 1944, tended purpose and they were frequently along with ‘‘DATES, ORIGIN OF raided by the Communists for financing TRANSPORTS AND NUMBER OF DE- their own political projects.’’ Id. ¶¶ 141–42 PORTEES’’), and the ‘‘vast majority’’ of (quoting 2 BRAHAM at 1309). In 1992, the Hungarian Jews sent ‘‘to the killing two years after ‘‘the downfall of the Com- fields and death camps of Nazi Germany- munist regime’’ in Hungary, the Hungari- occupied Poland and the Ukraine’’ died, id. an government adopted at least two laws ¶ 3. ‘‘The overall loss of Hungarian Jewry to provide remedies to Hungarian Jews during the Second World War, excluding victimized in the Holocaust: one of these those who fled abroad, was 564,507.’’ Id. laws ‘‘provid[ed] compensation for material ¶ 131. losses incurred between May 1, 1939 and After the armistice agreement ended the June 8, 1949,’’ and the other ‘‘provid[ed] hostilities of World War II, id. ¶ 137, Hun- compensation for those who, for political gary signed the ‘‘Paris Peace Treaty of reasons, were illegally deprived of their February 10, 1947’’ (‘‘1947 Treaty’’) that lives or liberty between March 11, 1939 incorporated ‘‘a number of provisions re- and October 23, 1989,’’ but plaintiffs claim lating to the restoration of confiscated that the remedies provided under those property,’’ with promises to undertake the programs are ‘‘paltry and wholly inade- restoration of, and fair compensation for, quate.’’ Id. ¶ 143. property, legal rights or interests confis- cated from persons ‘‘ ‘on account of the In sum, the plaintiffs have never been racial origin or religion of such persons,’ ’’ properly compensated for the personal id. ¶ 138 (quoting 1947 Treaty, 61 Stat. property seized from them by the defen- 2065, 41 U.N.T.S. 135, art. 27, para. 1). dants as the plaintiffs were about to be Article 27 and related provisions ‘‘were not deported. Id. ¶¶ 83–84. The plaintiffs be- self-executing (they needed appropriate lieve that the defendants ‘‘liquidated [this] municipal legislation and enforcement to stolen property, mixed the resulting funds prevail); and they did not provide for with their general revenues, and devoted sanction in case of non-compliance, other the proceeds to funding various govern- than the implied possible litigation before mental and commercial operations.’’ Id. an international tribunal.’’ Id. (quoting 2 ¶ 97. Thus, the plaintiffs claim that the RANDOLPH L. BRAHAM, THE POLI- ‘‘stolen property or property exchanged TICS OF GENOCIDE: THE HOLO- for such stolen property is owned and op- SIMON v. REPUBLIC OF HUNGARY 49 Cite as 277 F.Supp.3d 42 (D.D.C. 2017)
erated by Hungary and MAV,’’i some of for injunctive relief enjoining the defen- which property ‘‘is present in the United dants from tampering or destroying such States in connection with commercial activ- documents (Count X; Prayer For Relief, ity carried on in the United States by ¶¶ 5, 6). See SAC. The plaintiffs also assert Hungary,’’ id. ¶ 98, including, for example, that subject matter jurisdiction may prop- ‘‘fees and payments, offices, furniture, fur- erly be exercised over their claims, and nishings, bank accounts, artwork, stock that the defendants are not immune from and bond certificates, securities held in suit, pursuant to the FSIA’s expropriation ‘street name’ and airplanes,’’ id. ¶ 101. exception, 28 U.S.C. § 1605(a)(3), SAC ¶¶ 86–92, which exception permits suit Sixty-five years after the end of World against a foreign sovereign or its agencies War II and twenty years after the fall of or instrumentalities in the courts of the the Hungarian communist regime, the United States to vindicate ‘‘rights in prop- plaintiffs filed the instant action against erty taken in violation of international law’’ Hungary and MAV,i seeking, inter alia, when an adequate commercial nexus is restitution for the possessions seized from present between the United States and the them and their families during the Holo- defendant, 28 U.S.C. § 1605(a)(3). caust, and to certify a class ‘‘consist[ing] of [1] all surviving Jewish victims of the Ho- B. Procedural History locaust’’ who were residents of Hungary As noted, the defendants’ first motion to between September 1, 1939 and May 8, dismiss on the grounds of sovereign immu- 1945, and ‘‘[2] the heirs (whether American nity was granted because the exceptions to citizens or aliens) and open estates TTT of such immunity set out in the FSIA, 28 the deceased Jewish victims of the Holo- U.S.C. §§ 1605–07, only apply ‘‘if allowing caust, whether presently American citizens a suit against a sovereign to proceed, pur- or aliens,’’ who were residents of Hungary suant to one of those exceptions, does not between September 1, 1939 and May 8, conflict with ‘existing international agree- 1945. Id. ¶ 153. According to the plaintiffs, ments to which the United States [was] a this class would consist of at least ‘‘5,000 party at the time of the enactment of’ the survivors’’ and ‘‘countless heirs and es- FSIA.’’ Simon I, 37 F.Supp.3d at 406. tates’’ of the ‘‘approximately 825,000 Jews Finding ‘‘that the 1947 Treaty is an ‘exist- in Hungary’’ who were victims of the ing international agreement[ ] to which the atrocities committed by the defendants. Id. United States [was] a party at the time of ¶¶ 131, 154. the enactment’ of the FSIA, 28 U.S.C. The plaintiffs’ Second Amended Com- § 1604,’’ the Court held that the 1947 plaint asserts, in ten counts, claims for Treaty ‘‘trigger[ed] the FSIA’s treaty ex- conversion (Count I), unjust enrichment ception to deprive this Court of subject (Count II), breach of fiduciary and special matter jurisdiction over the plaintiffs’ duties imposed on common carriers (Count claims.’’ Id. at 407. In particular, the 1947 III), recklessness and negligence (Counts Treaty addressed Hungary’s disposition of IV, V), civil conspiracy with Nazi Germany ‘‘all property’’ taken from Holocaust vic- to commit tortious acts (Count VI), aiding tims, directed how Hungary was to distrib- and abetting (Count VII), restitution ute all expropriated property at the end of (Count VIII), accounting (Count IX), a de- the war, and provided that ‘‘any dispute mand for a declaratory judgment that concerning the interpretation or execution plaintiffs and class members are entitled of the treaty’’ was subject to resolution to inspect and copy certain documents, and exclusively through the mechanisms de- 50 277 FEDERAL SUPPLEMENT, 3d SERIES
scribed in the Treaty. Id. at 415–16 (quot- The Circuit affirmed the dismissal of the ing 1947 Treaty, art. 40(1)). Based on those ‘‘plaintiffs’ non-property claims because treaty provisions, which this Court viewed they do not come within the FSIA’s expro- as defining the contours of Hungary’s priation exception,’’ and no other FSIA waiver of its sovereign immunity for claims exception provided jurisdiction over the for property seized during the Holocaust claims. Id. at 151. By contrast, the plain- and delineating the exclusive legal regime tiffs’ claims that ‘‘directly implicate[d]’’ set up to resolve the plaintiffs’ property their property rights were ‘‘claims ‘in claims against Hungary, the Court held which rights in property taken in violation that the Treaty precluded review of those of international law’ ’’ remained at issue. claims under a FSIA exception and de- Id. at 140 (quoting 28 U.S.C. clined to reach the parties’ other argu- § 1605(a)(3)).3 The Circuit acknowledged ments concerning the application of the that a sovereign’s expropriation of its own FSIA’s ‘‘expropriation exception’’ or pru- nationals’ property was not a violation of dential reasons to dismiss the case, such as international law under the ‘‘so-called ‘do- forum non conveniens. Id. at 397, 418 n.28. mestic takings rule,’ ’’ but construed the On appeal, the D.C. Circuit affirmed in plaintiffs’ claims as not asserting a ‘‘basic part and reversed in part. In particular, expropriation claim’’ subject to the domes- the Circuit rejected application of the trea- tic takings rule. Id. at 140–41, 144. Reason- ty exception, Simon II, 812 F.3d at 135, ing that ‘‘[e]xpropriations undertaken for finding that the 1947 Treaty set out only a the purpose of bringing about a protected non-exclusive mechanism for the plaintiffs group’s physical destruction qualify as ge- to obtain compensation, id. at 137, and, nocide,’’ id. at 143, the Circuit saw ‘‘the thus, did not conflict with the FSIA such expropriations as themselves genocide’’ that ‘‘the FSIA’s treaty exception does not committed ‘‘ ‘in violation of international foreclose jurisdiction over the plaintiffs’ law,’ ’’ id. at 142–43 (emphasis in original), claims,’’ id. at 140 (‘‘we hold that Article 27 in reliance on ‘‘[t]he legal definition of secures one means by which Hungarian genocide’’ set out in the Convention on the victims can seek recovery against Hungary Prevention and Punishment of the Crime for their wartime property losses, but not of Genocide (Genocide Convention), art. 2, to the exclusion of other available reme- Dec. 9, 1948, 78 U.N.T.S. 277, and other dies.’’). The Circuit then considered wheth- international treaties. See also id. at 144 er the expropriation exception provides a (‘‘[T]he complaint describes takings of basis for waiver of the defendants’ sover- property that are themselves genocide eign immunity. Id. within the legal definition of the term.’’).4
3. The D.C. Circuit specifically held that the of international law, has garnered critical plaintiffs’ ‘‘conversion claim,’’ ‘‘[t]heir unjust comment. See, e.g., RESTATEMENT enrichment claim,’’ and their ‘‘restitution (FOURTH) OF FOREIGN RELATIONS LAW claim TTT place ‘rights in property TTT in § 455 rep. note 7 (AM. LAW INST., Tentative issue’ within the meaning of the FSIA’s expro- Draft No. 2, 2016) (noting that ‘‘[b]y eliminat- priation exception,’’ and left to this Court to ing the ‘domestic takings’ rule and permitting determine which, if any, of the plaintiffs’ oth- claims to proceed on the basis of allegations er claims involved ‘‘rights in property.’’ Id. at that the takings occurred in the context of 142. egregious violations of international law, [Si- mon II] appears to expand the scope of [the 4. The D.C. Circuit’s articulation of when a expropriation exception] significantly, poten- sovereign nation’s expropriation of property tially opening courts in the U.S. to a wide from its own nationals qualify as a violation range of property-related claims arising out of SIMON v. REPUBLIC OF HUNGARY 51 Cite as 277 F.Supp.3d 42 (D.D.C. 2017)
The Circuit then turned to the ‘‘commer- the burden of persuasion to establish the cial-activity nexus requirement’’ of the ex- absence of the factual basis by a prepon- propriation exception, which, on a ‘‘general derance of the evidence.’’ Id. (internal quo- level TTT require[s]: (i) that the defen- tation omitted). Based on the then-record dants possess the expropriated property or regarding the commercial activity nexus proceeds thereof; and (ii) that the defen- requirement, the Circuit held that ‘‘[b]e- dants participate in some kind of commer- cause defendants make no attempt to ar- cial activity in the United States.’’ Id. at gue that the rail company fails to ‘en- 146. The plaintiffs’ allegations ‘‘that the gage[ ] in a commercial activity in the Hungarian defendants liquidated the sto- United States,’ the nexus requirement is len property, mixed the resulting funds satisfied as to MAV,’’i id. at 147–48, but with their general revenues, and devoted that ‘‘the complaint’s allegations about the proceeds to funding various govern- Hungary’s commercial activity fail to dem- mental and commercial operations’’ were onstrate satisfaction of § 1605(a)(3)’s nex- found to ‘‘raise a ‘plausible inference’ that us requirement’’ because the plaintiffs ‘‘put the defendants retain the [plaintiffs’] prop- forward only [ ] bare, conclusory asser- erty or proceeds thereof,’’ and, thus, the tion[s]’’ to support their claim, consequent- defendants’ argument that such allegations ly affirming the dismissal of the claims were insufficient as a matter of law was against Hungary, id. at 148. rejected. Id. at 147. Nevertheless, the Cir- The Circuit concluded by leaving to this cuit cautioned that the plaintiffs ultimately Court to consider on remand any remain- ‘‘may or may not be able to prove the ing issues raised by defendants’ invocation point,’’ and emphasized the limitation of its of sovereign immunity ‘‘should the defen- holding to whether the plaintiffs’ allega- dants assert’’ them, such as ‘‘whether, as a tions were sufficient as a matter of law. Id. matter of international comity, the court The Circuit further noted that ‘‘[u]pon any should decline to exercise jurisdiction un- factual challenge by the [ ] defendants— less and until the plaintiffs exhaust avail- e.g., concerning whether the defendants in able Hungarian remedies,’’ id. at 149, and fact still possess the property or proceeds ‘‘any other arguments that [this Court] has thereof—the plaintiffs will bear the burden yet to reach and that are unaddressed [by of production, and the defendants will bear the Circuit], such as the defendants’ forum
foreign internal (as well as international) con- manner of established case law, [Simon II] flicts characterized by widespread human created a novel exception to the FSIA, no- rights violations.’’); Vivian Grosswald Cur- where to be found in the statute’s language, ran, HARMONIZING MULTINATIONAL PARENT COMPA- that is based on the context of genocide and NY LIABILITY FOR FOREIGN SUBSIDIARY HUMAN perhaps other grave violations of human RIGHTS VIOLATIONS, 17 CHI. J. INT’L L. 403, rights.’’). Notably, the Supreme Court has ex- 430 (2017) (‘‘[I]n Simon [II] TTTthe D.C. Cir- pressed the view, consistent with Simon II, cuit seemed to take yet an additional step that ‘‘there are fair arguments to be made beyond both [the Seventh] and [Ninth Cir- that a sovereign’s taking of its own nationals’ cuits], by equating Hungary’s expropriation of property sometimes amounts to an expropria- its Jewish population with genocide TTT Thus, tion that violates international law, and the the FSIA expropriations exception for takings expropriation exception provides that the gen- in violation of international law has become a eral principle of immunity for these otherwise form of universal jurisdiction for the gravest public acts should give way.’’ Bolivarian Re- human rights violations under the FSIA.’’) public of Venez. v. Helmerich & Payne Int’l (emphasis in original); id. at 428 (‘‘[I]nstead Drilling Co., ––– U.S. ––––, 137 S.Ct. 1312, of applying the domestic takings rule in the 1321, 197 L.Ed.2d 663 (2017). 52 277 FEDERAL SUPPLEMENT, 3d SERIES
non conveniens arguments,’’ id. at 151.5 II. LEGAL STANDARD
[2–4] Both forum non conveniens and C. Second Amended Complaint exhaustion are prudential doctrines that [1] On remand, the plaintiffs were per- fall outside the ‘‘standard procedural de- mitted to file the operative Second Amend- vices trial courts around the country use ed Complaint, see Scheduling Order, dated every day in service of [Federal Rule of April 13, 2016; J. Stip. Regarding Sched. Civil Procedure] Rule 1’s paramount com- Order, ECF No. 117, which supplements mand: the just, speedy, and inexpensive the allegations regarding the defendants’ resolution of disputes.’’ Dietz v. Bouldin, commercial nexus to the U.S., and alleges ––– U.S. ––––, 136 S.Ct. 1885, 1891, 195 for the first time, consistent with the D.C. L.Ed.2d 161 (2016). Nevertheless, in con- Circuit’s holding, that the takings at issue sidering dismissal of a case on prudential were ‘‘themselves genocide,’’ SAC ¶¶ 92– grounds, the norm in reviewing a motion 94. The defendants then filed their second to dismiss under Federal Rule of Civil Motion to Dismiss, arguing that the Sec- Procedure 12(b) is followed and the Court ond Amended Complaint should be dis- ‘‘must accept as true all material allega- missed, inter alia, for plaintiffs’ failure to tions of the complaint, and must construe exhaust Hungarian remedies, Defs.’ Mem. the complaint in favor of the complaining Supp. Second Mot. Dismiss (‘‘Defs.’ party.’’ Warth v. Seldin, 422 U.S. 490, 501, Mem.’’) at 21–24, ECF No. 120–1, and 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); see under forum non conveniens, id. at 24– also Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 35. 6 The defendants’ second motion to dis- 1137, 1139 (D.C. Cir. 2011) (noting that in miss is now ripe for review. For the rea- evaluating dismissal under Rule 12(b)(1), sons explained below, the defendants’ mo- court should ‘‘assume the truth of all mate- tion is granted on prudential exhaustion rial factual allegations in the complaint and and forum non conveniens grounds. ‘construe the complaint liberally, granting
5. The D.C. Circuit made clear that ‘‘the FSIA Shipping Corp., 549 U.S. 422, 425, 127 S.Ct. itself imposes no exhaustion requirement,’’ id. 1184, 167 L.Ed.2d 15 (2007) (‘‘a district court at 148, and rejected the defendants’ argument has discretion to respond at once to a defen- that the plaintiffs cannot show a ‘‘violation of dant’s forum non conveniens plea, and need international law,’’ as a prerequisite for in- not take up first any other threshold objec- voking the expropriation exception, ‘‘without tion. In particular, a court need not resolve exhausting domestic remedies in the defen- whether it has authority to adjudicate the dant state (or showing the absence of any cause (subject-matter jurisdiction) or personal need to do so),’’ id. When the expropriation at jurisdiction over the defendant if it deter- issue involves genocidal takings, any statutory mines that, in any event, a foreign tribunal is exhaustion requirement to show the interna- plainly the more suitable arbiter of the merits tional law violation is obviated because ‘‘[t]he of the case.’’); In re Papandreou, 139 F.3d violation is the genocide itself, which occurs 247, 255 (D.C. Cir. 1998) (‘‘[A]lthough sub- at the moment of the taking, whether or not a ject-matter jurisdiction is special for many victim subsequently attempts to obtain relief purposes TTT a court [may instead] dismiss [ ] through the violating sovereign’s domestic on other non-merits grounds such as forum laws.’’ Id. at 149. non conveniens’’); Pub. Citizen v. U.S. Dist. Court for D.C., 486 F.3d 1342, 1347 (D.C. Cir. 6. Defendants have also sought dismissal on 2007) (‘‘Any remaining doubt as to whether a grounds of sovereign immunity, but since the federal court may, in appropriate circum- motion is resolved on alternative grounds, stances, dismiss a case on prudential grounds those arguments need not be considered. See prior to establishing its jurisdiction was put to Sinochem Intern. Co. Ltd. v. Malaysia Intern. rest in Sinochem.’’). SIMON v. REPUBLIC OF HUNGARY 53 Cite as 277 F.Supp.3d 42 (D.D.C. 2017)
[the] plaintiff the benefit of all inferences conveniens, id. at 24–34. The plaintiffs that can be derived from the facts al- counter that the facts support the exercise leged’ ’’ (quoting Thomas v. Principi, 394 of subject matter jurisdiction under the F.3d 970, 972 (D.C. Cir. 2005))). At the FSIA’s expropriation exception, Pls.’ Mem. same time, inferences drawn by the plain- Opp’n Defs.’ Mot. Dismiss (‘‘Pls.’ Opp’n’’) tiff that are unsupported by facts alleged at 2–22, ECF No. 122; that they are not in the complaint or amount merely to legal required to exhaust their claims in Hunga- conclusions need not be accepted. See ry, stressing that such efforts would be Browning v. Clinton, 292 F.3d 235, 242 futile, id. at 22–27; and that forum non (D.C. Cir. 2002). Similarly to evaluating conveniens is unavailable because Hunga- the jurisdictional sufficiency of a com- ry is not an adequate alternative forum plaint, the Court may also consider ‘‘mate- and other relevant factors do not overcome rials outside the pleadings.’’ Jerome Ste- the plaintiffs’ choice of forum, id. at 27–44. vens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005); Belhas v. Ya’Alon, As explained below, plaintiffs have not 515 F.3d 1279, 1281 (D.C. Cir. 2008) (ex- shown that pursuing their claims in Hun- amining materials outside the pleadings in gary would be futile or that Hungary is an ruling on a Rule 12(b)(1) motion to dismiss inadequate alternative forum. Thus, the for lack of subject matter jurisdiction); prudential exhaustion and forum non con- Coal. for Underground Expansion v. veniens doctrines both provide a compel- Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) ling basis for ‘‘declin[ing] to exercise juris- (noting that courts may consider materials diction,’’ Simon II, 812 F.3d at 149, and outside the pleadings in ruling on a Rule dismissing the plaintiffs’ claims. 12(b)(1) motion to dismiss for lack of sub- ject matter jurisdiction). A. Prudential Exhaustion 1. Applicable Legal Principles III. DISCUSSION The defendants have moved to dismiss [5, 6] The prudential exhaustion doc- the SAC on three independent grounds, trine for FSIA expropriation claims was which are, unsurprisingly, the grounds articulated by the Seventh Circuit first in highlighted by the D.C. Circuit as left Abelesz v. Magyar Nemzeti Bank, 692 unresolved on appeal: first, the defendants F.3d 661 (7th Cir. 2012), and later refined dispute the factual bases on which applica- by Fischer v. Magyar Allamvasutaki Zrt, tion of the FSIA’s expropriation exception 777 F.3d 847 (7th Cir. 2015). As summa- to the plaintiffs’ claims depends, Defs.’ rized in Fischer, the exhaustion inquiry Mem. at 8–20; second, the defendants ar- must answer two questions: (1) whether gue that, as a matter of international comi- plaintiffs have alleged a taking in violation ty, the Court should as, a prudential mat- of international law where ‘‘international ter, decline to hear the case until the law favors giving a state accused of taking plaintiffs have exhausted their claims be- property in violation of international law fore a court in Hungary, id.at 21–24; and an opportunity to ‘redress it by its own third, the defendants reassert, as they did means, within the framework of its own in their first motion to dismiss, that re- legal system’ before the same alleged tak- gardless of whether jurisdiction may prop- ing may be aired in foreign courts,’’ Fisch- erly be exercised over the plaintiffs’ er, 777 F.3d at 855 (quoting Abelesz, 692 claims, the Court should decline to hear F.3d at 680); and (2) whether the plaintiffs the case under the doctrine of forum non have exhausted domestic remedies in the 54 277 FEDERAL SUPPLEMENT, 3d SERIES country where the taking occurred or, if violation of international law,’’ even if the not, whether plaintiffs can ‘‘show convinc- alleged violation was not an uncompensat- ingly that such remedies are clearly a ed taking. Id. at 679–82. sham or inadequate or that their applica- [7] The Abelesz court explained that tion is unreasonably prolonged,’’ Abelesz, ‘‘the requirement that domestic remedies 692 F.3d at 681, such that ‘‘it could not be for expropriation be exhausted before in- worthwhile to bring suit’’ there, Fischer, ternational proceedings may be instituted 777 F.3d at 857. In such cases, ‘‘principles is ‘a well-established rule of customary of international comity make clear that international law,’ ’’ Abelesz, 692 F.3d at these plaintiffs must attempt to exhaust domestic remedies,’’ id. at 852, except 679 (quoting Interhandel (Switz v. U.S.), where those remedies are ‘‘futile or imagi- Preliminary Objections, 1959 I.C.J. 6, 26– nary,’’ id. at 858. Those two factors – 27 (Mar. 21)), and emphasized the ‘‘sover- comity and futility – are now considered in eignty and comity concerns underlying the turn. domestic exhaustion rule,’’ id. at 680. Not- ing that the United States itself had in- a. Comity voked this rule in a case before the Inter- In Abelesz, the Seventh Circuit re- national Court of Justice, id. at 679 (citing versed the denial of motions to dismiss Interhandel (Switz. v. U.S.)), the Abelesz claims from two related cases brought by court expressed concern that the United ‘‘Holocaust survivors and heirs of other States invoking the exhaustion doctrine in Holocaust victims’’ against the Hungarian foreign courts but failing to require ex- national bank and against MAV,i also a de- haustion in domestic courts would conflict fendant in the instant case, for allegedly with ‘‘the comity and reciprocity between ‘‘participat[ing] in expropriating property sovereign nations that dominate interna- from Hungarian Jews who were victims of tional law.’’ Id. at 682. Importantly, the the Holocaust.’’ 692 F.3d at 665.7 The Abe- exhaustion requirement is not required by lesz court affirmed the district court’s re- the FSIA, but is ‘‘made clear’’ from the jection of the FSIA treaty exception, id. statute’s ‘‘reliance on international law at 695, and found that the expropriation norms,’’ such as exhaustion. Fischer, 777 exception may provide a waiver of sover- F.3d at 854–55. ‘‘[E]xhaustion of domestic eign immunity, despite the general princi- remedies is preferred in international law ple that plaintiffs may not bring an FSIA as a matter of comity,’’ and a plaintiff suit for uncompensated takings without seeking to overcome that consideration exhausting domestic remedies, id. at 677, must show that they have exhausted the because the relevant ‘‘violation of interna- foreign sovereign’s own domestic reme- tional law’’ was not an uncompensated dies, or that to do so would be futile. Id. at taking, but expropriation of property ‘‘to 859. deprive Hungarian Jews of their wealth and to fund genocide, a long-recognized b. Futility violation of international law.’’ Id. at 677. [8] Several factors are considered Nevertheless, the court reversed the deni- when determining whether ‘‘ ‘Hungarian al of the motions to dismiss, holding that courts would be so obviously incapable of the plaintiffs ‘‘must exhaust domestic rem- providing a fair and impartial hearing’ that edies to assert a claim for expropriation in a United States court should step in.’’ Id.
7. The Abelesz plaintiffs apparently did not sue Hungary. See Abelesz, 692 F.3d at 664–65. SIMON v. REPUBLIC OF HUNGARY 55 Cite as 277 F.Supp.3d 42 (D.D.C. 2017)
at 859–60 (quoting Abelesz, 692 F.3d at common law,’’ Pls.’ Opp’n at 26, nor a 684). These are: (1) whether Hungarian direct application of recognized interna- law provided sufficiently congruent judicial tional law principles, id. at 23–24. Neither remedies, id. at 860–61; (2) the existence of these arguments, however, address the of ‘‘procedural obstacles’’ to those reme- prudential concerns animating the Seventh dies, id. at 861, such that ‘‘the remedy Circuit’s formulation of this doctrine. provided by the alternative forum is so [10] As the Seventh Circuit explained, clearly inadequate or unsatisfactory that it an exhaustion requirement ‘‘could serve is no remedy at all,’’ Piper Aircraft Co. v. two distinct roles’’: either as a necessary Reyno, 454 U.S. 235, 254, 102 S.Ct. 252, 70 part of the violation of international law L.Ed.2d 419 (1981), a high bar borrowed itself, or imposed as a matter of ‘‘custom- from ‘‘the related context of forum non ary international law.’’ Fischer, 777 F.3d conveniens,’’ Fischer, 777 F.3d at 861; and at 857. Since the Abelesz ‘‘plaintiffs had al- (3) the ‘‘adequacy of Hungarian courts’’ in leged violations of international law due to light of recent ‘‘limits on judicial indepen- the genocidal nature of the expropria- dence,’’ id. at 862. tions,’’ not because of an uncompensated taking, Abelesz did not invoke the ‘‘domes- 2. Analysis tic takings’’ doctrine, but instead ‘‘invoked [9] As noted supra, the D.C. Circuit the second form of exhaustion,’’ the ‘‘pru- left unresolved whether this Court ‘‘should dential exhaustion’’ requirement. Id. at decline to exercise jurisdiction’’ over the 857–59. The plaintiffs here do not articu- plaintiffs’ expropriation claims ‘‘as a mat- late any reason not to adopt the prudential ter of international comity unless the exhaustion doctrine. That Congress did plaintiffs first exhaust domestic remedies.’’ not include an exhaustion requirement in Simon II, 812 F.3d at 149 (citing Fischer, the expropriation exception is certainly 777 F.3d at 857). The D.C. Circuit’s ap- relevant, Pls.’ Opp’n at 23–24, but the simi- proving reference to Fischer’s application larity between the prudential exhaustion of the prudential exhaustion doctrine ‘‘to doctrine and the forum non conveniens parallel claims arising from the Hungarian doctrine, which ‘‘remains fully applicable in Holocaust,’’ id. at 146, and ‘‘in closely simi- FSIA cases’’ despite lacking a statutory lar circumstances,’’ id. at 149, makes plain basis, Price v. Socialist People’s Libyan that application of this doctrine to the facts Arab Jamahiriya, 294 F.3d 82, 100 (D.C. of this case, at a minimum, warrants con- Cir. 2002), indicates that the FSIA is not a sideration. bar to adopting prudential exhaustion in The same considerations that the Sev- this case. enth Circuit held counseled dismissal for That said, the plaintiffs are likely cor- failure to exhaust Hungarian remedies in rect that exhaustion is only required as a Abelesz/Fischer apply to the instant case, matter of course where a plaintiff seeks to and point to the same result. Here, the bring a domestic dispute before an inter- plaintiffs argue both that the prudential national tribunal, rather than to the do- exhaustion doctrine does not apply to their mestic courts of a different sovereign, claims and, more generally, that the pru- which may apply its own domestic laws. dential exhaustion doctrine should not be Pls.’ Opp’n at 23–25 (citing William S. adopted at all. As the plaintiffs point out, Dodge, INTERNATIONAL COMITY IN this doctrine is neither reflected in the text AMERICAN LAW, 116 COLUM. L. REV. of the FSIA, which displaced ‘‘pre-existing 2071, 2110–11 n.243 (2015) (‘‘[C]ustomary 56 277 FEDERAL SUPPLEMENT, 3d SERIES
international law requires the exhaustion agree with the outcome in the foreign of local remedies in domestic courts only court. before a claim is brought in an internation- Nevertheless, despite these drawbacks, al tribunal. TTT There is no international the factors counseling application of the law rule requiring the exhaustion of local remedies before a claim is brought in an- prudential exhaustion doctrine here out- other domestic court.’’)). The Seventh Cir- weigh those against. Perfect judicial proce- cuit’s decisions in Abelesz and Fischer, dures for resolving seventy-year-old claims however, were not based solely on apply- of genocide against a foreign sovereign are ing existing international law, but on ap- elusive. The prudential exhaustion doctrine plying the principles that motivated inter- recognizes the risks of unnecessarily in- national law norms. The doctrine adopted fringing on the sovereignty of a foreign by the Seventh Circuit is not a direct nation while also guaranteeing that the translation of the exhaustion requirement plaintiffs are afforded an adequate forum for international courts, and does not re- for their claims. Accordingly, the Court quire plaintiffs to exhaust domestic reme- finds that the prudential exhaustion doc- dies any time they seek to sue in a foreign trine applies here. The two-pronged inqui- forum. ry outlined by the Fischer Court is ad- dressed next. This is not to say that the prudential exhaustion doctrine avoids all comity prob- a. International Comity Consider- lems. The Fischer court stressed that dis- ations Require Plaintiffs to Ex- missal of a lawsuit on prudential exhaus- haust Hungarian Remedies tion grounds would be without prejudice and, thus, ‘‘[i]f plaintiffs attempt to bring [11] The Seventh Circuit focused its suit in Hungary and are blocked arbitrari- comity inquiry on principles that the Su- ly or unreasonably, United States courts preme Court has articulated in recent could once again be open to these claims,’’ years, particularly in Kiobel v. Royal 777 F.3d at 865–866; id. at 852 (‘‘while the Dutch Petroleum Co., 569 U.S. 108, 133 doors of United States courts are closed to S.Ct. 1659, 185 L.Ed.2d 671 (2013), where, these claims for now, they are not locked in addressing the extraterritorial applica- forever. All dismissals are without preju- tion of the Alien Tort Statute, the Su- dice. If plaintiffs find that future attempts preme Court highlighted concerns that to pursue remedies in Hungary are frus- ‘‘other nations, also applying the law of trated unreasonably or arbitrarily, a Unit- nations, could hale our citizens into their ed States court could once again hear courts for alleged violations of the law of these claims.’’). By requiring that plaintiffs nations occurring in the United States, or exhaust domestic remedies in Hungary, anywhere else in the world,’’ id. at 124, 133 but permitting them to re-file suit in the S.Ct. 1659. Such concerns are heightened United States afterward, United States when foreign sovereigns, rather than just courts may be called upon to decide not foreign citizens, are potential defendants. only the previously dismissed legal issues, The Fischer court also drew on Justice but also to evaluate the fairness and ade- Breyer’s concurrence, which noted that quacy of the foreign proceeding, effectively ‘‘limiting principles’’ such as comity ‘‘help placing domestic United States courts in to minimize international friction.’’ Fischer, the position of reviewing the sufficiency of 777 F.3d at 859 (quoting Kiobel, 569 U.S. another sovereign’s judicial or legal regime at 133, 133 S.Ct. 1659 (Breyer, J., concur- and, on review of any revived claims, dis- ring)). Moreover, where ‘‘claims TTT arise SIMON v. REPUBLIC OF HUNGARY 57 Cite as 277 F.Supp.3d 42 (D.D.C. 2017)
from events of historical and political sig- in original) (internal quotations and cita- nificance TTT [t]here is a comity interest in tions omitted)); Rann v. Chao, 154 allowing a foreign state to use its own F.Supp.2d 61, 65 (D.D.C. 2001), aff’d as courts for a dispute if it has a right to do modified, 346 F.3d 192 (D.C. Cir. 2003) so.’’ Philippines v. Pimentel, 553 U.S. 851, (‘‘[A] plaintiff bears a heavy burden to 866, 128 S.Ct. 2180, 171 L.Ed.2d 131 establish that the futility exception applies (2008).8 The comity considerations that led to his or her case.’’). The parties vigorous- the Fischer court to dismiss that suit ly dispute whether Hungarian courts against MAV,i the Hungarian national rail- would provide an adequate alternative fo- way, apply also to the instant suit against rum for the plaintiffs’ claims or if bringing MAV,i and with greater strength to defen- the claims in Hungary would be futile. dant Hungary – itself a foreign sovereign. Given the significant overlap in facts be- tween Abelesz/Fischer and the instant b. Hungarian Remedies Would case, the Seventh Circuit’s opinions are Not Be Futile highly persuasive. [12] After finding that comity consid- [13–15] A foreign forum will ‘‘ordinari- erations counsel in favor of dismissal, the ly’’ be found adequate so long as ‘‘the second inquiry is whether ‘‘there is a le- defendant is amenable to process in [that] gally compelling reason for plaintiffs’ fail- jurisdiction.’’ Piper Aircraft, 454 U.S. at ure to exhaust Hungarian remedies.’’ Abe- 254 n.22, 102 S.Ct. 252 (internal quotation lesz, 692 F.3d at 682. As the plaintiffs are marks omitted). ‘‘[A]s long as the alterna- required to exhaust their claims, they also tive forum provides some potential avenue bear the burden of demonstrating that at- for redress, that forum generally will be tempting to exhaust any of their claims considered adequate.’’ 17 JAMES WM. would be futile. Fischer, 777 F.3d at 867 MOORE ET AL., MOORE’S FEDERAL (‘‘In the exhaustion analysis, it was up to PRACTICE–CIVIL § 111.74 (2017) (inter- plaintiffs to point to a legally compelling nal quotation marks omitted). ‘‘In rare cir- reason that the remedies might be inade- cumstances TTT where the remedy offered quate.’’); see also Tesoro Refining & Mar- by the other forum is clearly unsatisfacto- keting Co. v. FERC, 552 F.3d 868, 874 ry, the other forum may not be an ade- (D.C. Cir. 2009) (‘‘The futility exception is quate alternative.’’ Piper Aircraft, 454 U.S. quite restricted TTT [e]ven if one were to at 254 n.22, 102 S.Ct. 252. A foreign forum concede that an unfavorable decision TTT ‘‘is not inadequate merely because it has was highly likely, that does not satisfy less favorable substantive law,’’ El–Fadl v. our strict futility standard requiring a cer- Central Bank of Jordan, 75 F.3d 668, 678 tainty of an adverse decision.’’ (emphasis (D.C. Cir. 1996), abrogated on other
8. The plaintiffs argue on this point that sever- Cook v. Champion Tankers AS, No. 12-cv- al cases relied on by the defendants are not 01965-JST, 2013 WL 1629136, 2013 U.S. relevant because they concerned suits against Dist. LEXIS 54018 (N.D. Cal. Apr. 16, 2013). private foreign entities or did not arise under The Supreme Court has not limited its con- the forum non conveniens doctrine. See Pls.’ cerns about the interference of U.S. courts in Opp’n at 41–43 nn. 31–34. It is true that some foreign affairs to a single type of case, howev- of the cases cited by the defendants concern er, and concerns about federal courts ‘‘trig- private business disputes, see VIP Eng’g & gering serious foreign policy consequences,’’ Mktg. Ltd. v. Standard Chartered Bank, 969 Kiobel, 569 U.S. at 124, 133 S.Ct. 1659, apply F.Supp.2d 391 (S.D.N.Y. 2013); MBI Group a fortiori when plaintiffs ask the court to v. Credit Foncier du Cameroun, 558 F.Supp.2d exercise jurisdiction over a foreign-sovereign 21 (D.D.C. 2008), or involve ‘‘maritime torts,’’ defendant. 58 277 FEDERAL SUPPLEMENT, 3d SERIES grounds by Samantar v. Yousuf, 560 U.S. that the Hungarian constitution, called the 305, 130 S.Ct. 2278, 176 L.Ed.2d 1047 Hungarian Basic Law, explicitly requires (2010); see also 17 MOORE’S FEDERAL that parties be treated fairly and equally PRACTICE–CIVIL § 111.74 (‘‘The possi- in court, prohibits discrimination on the bility that the foreign tribunal will apply basis of, among other things, race or reli- law that is less favorable to the plaintiff or gion, and creates rights of appeal to vari- that the damages award may be smaller ous appellate courts. Defs.’ Mem. at 25–26 ´ does not render the forum inadequate.’’), (citing id., Attach. 25, Decl. of Dr. Pal nor because it employs different adjudica- Sonnevend, Head of the Department of tive procedures, El–Fadl, 75 F.3d at 678, International Law, ELTE Law School Bu- or because of general allegations of cor- dapest (‘‘Sonnevend Decl.’’), ¶¶ 7, 9, 39, 48, ruption in the judicial system, see BFI ECF No. 120–25); see also Sonnevend Grp. Divino Corp. v. JSC Russian Alumi- Decl. ¶¶ 39–53 (describing the extensive num, 298 Fed.Appx. 87, 91 (2d Cir. 2008) safeguards in place to ensure the indepen- dence of the Hungarian judiciary). The (noting that courts ‘‘are reluctant to agree’’ defendants further stress that Hungary that a ‘‘foreign judicial process is biased or ‘‘recognizes and enforces international corrupt’’); Leon v. Millon Air, Inc., 251 law,’’ Defs.’ Mem. at 25 (citing Sonnevend F.3d 1305, 1311–12 (11th Cir. 2001) (‘‘[T]he Decl. ¶¶ 32–34, 95), and that Hungarian argument that the alternative forum is too courts ‘‘recognize[ ] and provide[ ] dam- corrupt to be adequate does not enjoy a ages for the types of loss of property particularly impressive track record.’’) (in- claims alleged in [the] complaint,’’ id. at ternal quotation marks omitted). 25–26 (citing Sonnevend Decl. ¶¶ 92–94). The defendants summarize a number of These features of the Hungarian legal sys- features of the Hungarian court system to tem strongly support the conclusion that highlight the remedies available to the Hungary is an adequate alternative forum plaintiffs in Hungary. The defendants note for the plaintiffs’ claims.9
9. The defendants also point to a number of (CSH), 2001 WL 69423, at *7–8, 2001 U.S. cases in which lawsuits have been dismissed Dist. LEXIS 642, at *22–23 (S.D.N.Y. Jan. 26, on the related ground of forum non conve- 2001) (same). These cases, while not disposi- niens predicated on finding that Hungary pro- tive on the issue, see Pls.’ Opp’n at 29 (‘‘In vides an adequate forum for the resolution of each case, a fact-specific inquiry must be different types of claims, including claims made’’), bolster the conclusion that Hungary brought by Hungarian holocaust survivors. is an adequate forum. The plaintiffs briefly See Defs.’ Mem. at 26 (citing Fischer, 777 note that a suit by a Hungarian holocaust F.3d at 860 (finding Hungary adequate to survivor, who is not a plaintiff in this case, hear claims from Hungarian Holocaust vic- was recently dismissed by the Hungarian tims)); see also de Csepel v. Republic of Hun- courts, Pls.’ Opp’n at 32, but do not dispute gary, 808 F.Supp.2d 113, 138 (D.D.C. 2011) the defendants’ account of that case, namely, (assuming, based on the strong evidence pro- vided, that Hungary provided an adequate that the ‘‘Plaintiff did not make any motions alternative forum for claims brought by Hun- asking the Metropolitan Court of Budapest to garian Jews against Hungary); Moscovits v. collect or hear evidence to support her Magyar Cukor Rt., No. 00 Civ. 0031 (VM), claims,’’ and ‘‘did not appeal’’ the decision 2001 WL 767004, at *5, 2001 U.S. Dist. LEX- against her, as was her right, Defs.’ Reply IS 9252 at *14 (S.D.N.Y. July 9, 2001) (con- Attach. 1, Reply Decl. of Laszl´ o´ Nanyitsa cluding that Hungary offered an adequate al- ¶¶ 4–5, ECF No. 124–1. On this record, a ternative forum for business dispute), aff’d by single plaintiff’s unsuccessful suit in Hungary Moscovits v. Magyar Cukor Rt, 34 Fed.Appx. is wholly insufficient to find that the plaintiffs’ 24, 26 (2d Cir. 2002) (same)); Dorfman v. exhaustion of their claims in Hungary would Marriott Int’l Hotels, Inc., No. 99 Civ. 10496 be futile. SIMON v. REPUBLIC OF HUNGARY 59 Cite as 277 F.Supp.3d 42 (D.D.C. 2017)
The plaintiffs bolster their position that Notably, the defendants have agreed to they meet the futility requirement with a waive, and Hungary has waived by consti- variety of arguments, ranging from the tutional amendment, any statute of limita- procedural hurdles and insufficient reme- tions for claims related to ‘‘crimes visited dies in Hungary, to the anti-Semitism ex- upon the Hungarian people during World tant in that country. None is persuasive. War II.’’ Defs.’ Reply Supp. Mot. Dismiss (‘‘Defs.’ Reply’’) at 15, ECF No. 124 (quot- [16] First, as to the procedural hur- ing Abelesz, 692 F.3d at 682 n. 11); see dles, the plaintiffs claim that their proper- also id. (citing Fischer, 777 F.3d at 862 ty-based claims have been time-barred (recognizing that Hungary has waived by since March 1994 under Hungarian law. constitutional amendment the statute of Pls.’ Opp’n at 26 (citing Ex. A, Decl. of limitations on such claims)). Other plain- Andr´as Han´ak, Hungarian attorney (‘‘Ha- tiffs who have recently brought claims in n´ak Decl.’’) ¶¶ 14, 21, ECF No. 122–1)). Hungary seeking recovery of property tak- The plaintiffs’ expert explains that the en by the Hungarian government during Hungarian ‘‘Second Compensation Act’’ the Holocaust have been successful in their created an administrative procedure in cases. Defs.’ Reply at 20 (discussing return Hungary through which Holocaust victims of property expropriated by Hungary from could receive money as compensation for Hungarian Jews ‘‘in four separate litiga- property and tort claims, but that the time tions in Hungary’’). to file a claim under the act has long since passed. Han´ak Decl. ¶¶ 20–21. In addition, [17] Second, the plaintiffs contend that the remedy was only ‘‘symbolic compensa- ‘‘[t]he lack of meaningful remedies’’ avail- tion’’ to victims and not full compensation, able in Hungary ‘‘eviscerates Defendants’ an outcome that the Hungarian Constitu- exhaustion claim.’’ Pls.’ Opp’n at 27. Yet, tional Court found constitutional. Id. ¶ 19. the plaintiffs’ expert acknowledges that The plaintiffs misleadingly overstate the damages would likely be recoverable in opinion expressed by this expert by indi- Hungarian courts, though they may be cating that ‘‘under Hungarian law, all limited to pecuniary damages and ‘‘rela- property-based claims have been time- tively modest’’ non-pecuniary damages. Id. barred since March 1994,’’ Pls.’ Opp’n at at 31 (quoting First Decl. of Andr´as Ha- 26 (citing Han´ak Decl. ¶ 14), when the n´ak, Hungarian attorney (‘‘First Han´ak expert instead states only that ‘‘claims un- Decl.’’) ¶ 11, ECF No. 24–2). That the der the Compensation Acts are time- plaintiffs’ recovery in Hungary may be less barred,’’ Han´ak Decl. ¶ 14. In fact, the than they could recover in the United plaintiffs’ expert concedes that the Com- States does not make Hungary an inade- pensation Acts do not bar civil litigation by quate forum. As the Seventh Circuit noted, the plaintiffs, although the plaintiffs may ‘‘domestic Hungarian remedies need not ultimately lose on ‘‘substantive’’ grounds. be perfectly congruent with those available Id. ¶ 20. The mere fact that the plaintiffs in the United States to be deemed ade- may not be successful on the merits of quate.’’ Abelesz, 692 F.3d at 685. See also their claims falls far short of showing futil- Saqui v. Pride Cent. America, LLC, 595 ity. In the expert’s own words, the recep- F.3d 206, 212 (5th Cir. 2010) (affirming tivity of Hungarian courts to international that ‘‘the mere fact that the amount of claims ‘‘seemingly offer[s] to [the] plain- damages would be more limited under tiffs’’ at least one path by which they could Mexican as opposed to American law, does bring their claims in Hungarian court. Id. not provide the basis for finding Mexican 60 277 FEDERAL SUPPLEMENT, 3d SERIES courts an inadequate alternative forum.’’ [18] Moreover, while Hungarian courts (internal quotation marks omitted)); 17 do not permit class actions in the same MOORE’S FEDERAL PRACTICE–CIV- manner as American courts, under Hun- IL § 111.74 (‘‘If the plaintiff will not be garian law, plaintiffs may join their law- deprived of all remedies in the foreign suits together if the claims ‘‘involve the forum, the court may dismiss on forum same cause of action and legal basis.’’ non conveniens grounds even though the Defs.’ Reply at 21 n. 17 (citing Sonnevend foreign forum does not provide the same Decl. ¶ 57); Pls.’ Opp’n at 31 n.18. The lack array of remedies, or the same magnitude of availability of ‘‘American-style class ac- of potential recovery available in the [U.S.] tions,’’ which ‘‘remain uncommon’’ forum.’’). throughout the rest of the world, Fischer, 777 F.3d at 861, also would not deprive the Third, the plaintiffs complain about the plaintiffs of the ability to bring their claims procedural differences between American in Hungary. Indeed, as the Fischer court and Hungarian courts because there is ‘‘no noted in expressly rejecting this same ar- right to pre-trial discovery’’ in Hungary; gument, the lack of an ‘‘American-style ‘‘Hungary does not allow class actions’’; class action’’ mechanism does not mean and, unlike the United States, the losing ‘‘no remedy at all’’ is provided. Id. party usually pays the opposing party’s [19] Similarly, the American rule that attorney’s fees in Hungary. Pls.’ Opp’n at each party presumptively bears its own 31–33. These concerns are unavailing. costs in litigation is, like the ‘‘American- Though Hungarian courts do not employ style class action,’’ relatively uncommon, the same discovery methods as United and the possibility that the plaintiffs would States courts, the defendants point out be required to pay the opposing parties’ that ‘‘the parties can ask [a Hungarian] fees if they are unsuccessful in court is not court to gather evidence’’ on their behalf, only speculative, but is simply insufficient and the court ‘‘can order a party or third to show that a foreign forum is inadequate party to submit relevant documents in its or that proceeding there would be futile. possession to the court, summon witnesses See Piper Aircraft, 454 U.S. at 252 n. 18, with relevant knowledge to testify, or re- 102 S.Ct. 252 (noting that in ‘‘most foreign quire witnesses to produce documents in jurisdictions,’’ courts ‘‘tax losing parties their possession that the parties wish to with their opponents’ attorneys’ fees’’); rely on for evidence.’’ Defs.’ Reply at 22 Borden, Inc. v. Meiji Milk Products Co., (citing Sonnevend Decl. ¶¶ 61–62). Though Ltd., 919 F.2d 822, 829 (2d Cir. 1990) these procedures may not permit the (‘‘some inconvenience or the unavailability plaintiffs to control the course of discovery of beneficial litigation procedures similar as in the United States, they would none- to those available in the federal district theless be allowed to seek, via the court, courts does not render an alternative fo- access to relevant information held by the rum inadequate.’’ (internal quotation 10 defendants. Indeed, the Hungarian court marks omitted)). may have jurisdiction to compel evidence Fourth, the plaintiffs argue that they and testimony in Hungary that is lacking would face ‘‘manifest religious and ethnic in this Court. prejudice’’ in the Hungarian courts, and
10. The plaintiffs also briefly speculate that Opp’n at 33, but have provided no specific Hungary might refuse to pay any damages evidence that the government would ignore a awarded to them by Hungarian courts, Pls.’ lawful order of its judiciary. SIMON v. REPUBLIC OF HUNGARY 61 Cite as 277 F.Supp.3d 42 (D.D.C. 2017) that despite the ‘‘aspirational language’’ of Finally, the plaintiffs raise concerns the Basic Law prohibiting such discrimina- about the independence of the Hungarian tion, the ‘‘toxic anti-Semitic environment in judiciary due to the effort by the Hungari- Hungary’’ makes such prohibitions no an parliament to restrict the power of the more than ‘‘wishful thinking.’’ Pls.’ Opp’n judiciary through national legislation and at 30 (citing First Han´ak Decl. ¶¶ 20–21 the 2013 Fourth Amendment to the Basic (‘‘It is well-established TTT that anti–Semi- Law, which legislative activity prompted tism is on the increase in Hungary.’’)). The criticism by the European community at rise of anti–Semitism in Hungary and else- large. Pls.’ Opp’n at 30 & n.16; see also ´ where, even close to home, is enormously Hanak Decl. ¶ 9 & n.1. These legislative disturbing. Nonetheless, such concern is efforts to control the judiciary are ac- insufficient to conclude that bringing the knowledged with concern by the defen- dants’ own expert. See Sonnevend Decl. plaintiffs’ claims before Hungary’s judicial ¶¶ 19–21, 53. International organizations system would be futile. In rejecting the have also expressed concerns about these same argument, the Seventh Circuit ac- developments. The European Commission knowledged that ‘‘anti–Semitism unfortu- for Democracy through Law (the ‘‘Venice nately has been on the rise throughout Commission’’), for example, found that Europe and is also present in the United ‘‘these measures amount to a threat for States,’’ but ultimately found the argument constitutional justice TTT [and] may nega- of possible bias unpersuasive because, tively affect TTT the separation of powers ‘‘hold[ing] otherwise would imply that TTT the protection of human rights and the United States courts should presume that rule of law.’’ Pls.’ Opp’n Attach. 1, Ex. 7, the courts of other nations cannot fairly Venice Commission, Opinion on the Fourth hear claims brought by historically perse- Amendment to the Fundamental Law of cuted groups.’’ Fischer, 777 F.3d at 865. Hungary ¶ 145 (dated June 14–15, 2013), The Seventh Circuit went on to explain ECF No. 122–1; Han´ak Decl. ¶ 9(b) (not- that ‘‘[o]ne could easily imagine that Thur- ing that the European Court of Human good Marshall and the NAACP Legal De- Rights held that the Chief Justice’s remov- fense and Educational Fund had similar al violated the European Human Rights concerns about many United States courts’ Convention). ability to hear claims by African Ameri- Hungary has responded to many of cans in 1950 and later. Yet our courts by these concerns by again amending the Ba- and large rose to the challenge in the sic Law. See Sonnevend Decl. ¶ 53; see following decades.’’ Id. Indeed, the Hun- also Fischer, 777 F.3d at 863–64 (noting garian judiciary has already demonstrated that concerns about the amendments to a willingness to consider fairly the plain- the Basic Law have been largely ad- tiffs’ claims, as the Hungarian courts have dressed by both the further amendments assisted the plaintiffs in this case in taking to the Basic Law and reliance on the deci- a deposition of a witness located in Hunga- sions of the European Court of Justice). ry, and when that witness was unavailable, These corrective actions, including to sub- the court offered to make transcripts of mit to the jurisdiction of international Eu- other proceedings involving the witness ropean tribunals, are significant steps indi- available to the plaintiffs for use in this cating that Hungary is, in fact, committed litigation. See Simon I, 37 F.Supp.3d at to preserving the rule of law and still 395 (discussing plaintiffs’ attempt to de- seeks to align itself with commonly-accept- pose L´aszl´o Csatary). ed legal and moral norms. Presented with 62 277 FEDERAL SUPPLEMENT, 3d SERIES
the same argument that Hungarian courts rum is ‘‘the strongly preferred location for had become too politically charged to adju- the litigation,’’ MBI Grp., Inc. v. Credit dicate the plaintiffs’ claims fairly, the Sev- Foncier du Cameroun, 616 F.3d 568, 571 enth Circuit also recognized that Hungary (D.C. Cir. 2010) (citing Chabad, 528 F.3d had reversed attempted changes to its ju- 934); see also El–Fadl, 75 F.3d at 676–77 diciary that concerned the plaintiffs and (noting that ‘‘the defendant bears the bur- emphasized Hungary’s willingness to den of proving’’ the applicability of the quickly do so in response to criticism from forum non coveniens doctrine). other countries and international bodies. [21, 22] In evaluating whether private Fischer, 777 F.3d at 863–64. interest factors weigh in favor of plaintiff’s chosen forum or the foreign forum, a court *** considers: (1) the relative ease of access to International comity concerns apply sources of proof; (2) the availability of here and warrant dismissal, without preju- process for compelling unwilling witnesses; dice, of the Second Amended Complaint (3) the cost for obtaining attendance of for failure to exhaust the remedies avail- willing witnesses; (4) the possibility of in- able in Hungary to address the plaintiffs’ specting the premises, if appropriate; and claims of genocidal takings during World (5) all other practical problems that make War II, under the prudential exhaustion trial of a case easy, expeditious, and inex- doctrine. pensive. Gulf Oil, 330 U.S. at 508, 67 S.Ct. 839. The relevant public factors to be con- B. Forum Non Conveniens sidered include: (1) ‘‘local interest in hav- Having determined that this lawsuit ing localized controversies decided at must be dismissed, without prejudice, on home’’; (2) ‘‘the possibility of holding the the ground of prudential exhaustion, no trial in a forum at home with the law that further consideration is necessary of the must govern the case, rather than having a alternative prudential basis for dismissal. court in some other forum untangle prob- Yet, given the similarities between the lems in conflict of laws, and in law foreign prudential exhaustion and forum non con- to itself’’; (3) ‘‘avoiding the ‘imposition of veniens doctrines, both dictate the same jury duty’ on people of a community which result. Analysis of the latter basis for dis- has no relation to the litigation’’; and (4) missal is set out below. ‘‘other ‘administrative difficulties’ that flow from foreign litigation congesting local 1. Applicable Legal Principles courts.’’ MBI, 616 F.3d at 576 (quoting Gulf Oil, 330 U.S. at 508–09, 67 S.Ct. 839). [20] Despite the ‘‘substantial presump- tion in favor of a plaintiff’s choice of fo- [23] Courts do not apply ‘‘a rigid rule’’ rum,’’ Agudas Chasidei Chabad v. Russian to decide a motion to dismiss on the Federation, 528 F.3d 934, 950 (D.C. Cir. grounds of forum non conveniens and 2008) (citing Gulf Oil Corp. v. Gilbert, 330 ‘‘[each] case turns on its facts.’’ Piper Air- U.S. 501, 509, 67 S.Ct. 839, 91 L.Ed. 1055 craft, 454 U.S. at 249–50, 102 S.Ct. 252 (1947)), a court ‘‘may nonetheless dismiss a (internal quotation marks omitted). ‘‘If suit for forum non conveniens if the defen- central emphasis were placed on any one dant shows [ (1) ] there is an alternative factor, the forum non conveniens doctrine forum that is both available and adequate would lose much of the very flexibility that and, [ (2) ] upon a weighing of public and makes it so valuable.’’ Id.; see also Van private interests,’’ that the alternative fo- Cauwenberghe v. Biard, 486 U.S. 517, 529, SIMON v. REPUBLIC OF HUNGARY 63 Cite as 277 F.Supp.3d 42 (D.D.C. 2017)
108 S.Ct. 1945, 100 L.Ed.2d 517 (1988) even controlling in the forum non conve- (‘‘[T]he district court is accorded substan- niens analysis for several reasons. First, tial flexibility in evaluating a forum non the deference given to a plaintiff’s forum conveniens motion, and each case turns on choice is lessened when the plaintiff’s ties its facts.’’ (internal citations and quotation to the forum are attenuated. In this case, marks omitted)); Iragorri v. Int’l Eleva- only four of the fourteen named plaintiffs tor, Inc., 203 F.3d 8, 12 (1st Cir. 2000) (in reside in the United States and are U.S. reviewing a forum non conveniens motion, citizens. SAC ¶¶ 5, 7, 9, 73; see Pac. Mar. ‘‘flexibility is the watchword’’). Ass’n v. NLRB, 905 F.Supp.2d 55, 60–61 (D.D.C. 2012) (‘‘[T]he plaintiff’s choice of [24] A defendant is not required to forum is afforded great deference TTT carry out an ‘‘extensive investigation’’ in [but] that choice is conferred less defer- support of its forum non conveniens argu- ence by the court when a plaintiff’s choice ment, which ‘‘would defeat the purpose of of forum is not the plaintiff’s home forum.’’ [a forum non conveniens] motion,’’ but (internal quotation marks omitted)). The only must ‘‘provide enough information to remaining ten named plaintiffs are citizens enable the district court to balance the of other countries and do not reside in this parties’ interests.’’ Piper Aircraft, 454 U.S. country. SAC ¶¶ 6, 8, 14, 22, 27–28, 39, 41, at 258, 102 S.Ct. 252; see also SAS Inst., 49, 65, 81; see Friends for All Children, Inc. v. World Programming Ltd., 468 Fed. Inc. v. Lockheed Aircraft Corp., 717 F.2d Appx. 264, 266 (4th Cir. 2012) (‘‘A party 602, 605 (D.C. Cir. 1983) (‘‘The district seeking forum non conveniens dismissal is court was mistaken in supposing that a not required to undertake extensive inves- foreign plaintiff’s choice of a United States tigation in order to demonstrate that it[ ] forum is entitled to so much deference.’’). TTT would be adversely impacted by the continuance of the litigation.’’ (internal Moreover, because none of the underly- quotation marks omitted)). ing facts in this case relate to the United States in any way, the plaintiffs’ selection 2. Analysis of the United States as the forum for their [25] At the outset, the finding that the suit carries less force. To the extent the plaintiffs’ pursuit of their claims in Hunga- plaintiffs argue that requiring them to ry would not be futile satisfies the first travel out of the United States is burden- prong of the test for application of the some, see Pls.’ Opp’n at 38, the majority of forum non conveniens doctrine that Hun- the named plaintiffs will be required to gary is both an available and adequate travel internationally regardless of wheth- alternative forum. Thus, the Court pro- er the litigation is in the United States or ceeds to consider the remaining factors for Hungary. Additionally, many of the puta- application of the forum non conveniens tive class members also will be required to doctrine. travel regardless of the forum. Relatedly, requiring the defendants to defend them- a. Plaintiffs’ Choice of Forum selves in the courts of another sovereign [26] The plaintiffs correctly note the against claims brought by plaintiffs from ‘‘substantial deference’’ to which their all over the globe weighs against the plain- choice of forum is entitled, Pls.’ Opp’n at tiffs’ choice of forum. 33–35 (citing Chabad, 528 F.3d at 950), but In these circumstances, the plaintiffs’ the selection of this Court for the filing of choice of forum is entitled to minimal def- the instant lawsuit is not dispositive or erence. See, e.g., Fischer, 777 F.3d at 871 64 277 FEDERAL SUPPLEMENT, 3d SERIES
(noting that plaintiff’s choice of forum is and carried on business in Hungary, all given ‘‘presumption of convenience,’’ which documents relevant to the events that was ‘‘rebutted by the strength of the pri- form the basis of the present litigation are vate and public factors’’ warranting dis- located in Hungary and are overwhelming- missal); Moscovits v. Magyar Cukor Rt, ly in the Hungarian language TTT [and] are 34 Fed.Appx. 24, 26 (2d Cir. 2002) (agree- stored as hard-copy documents.’’), ECF ing with the trial court that ‘‘defendants No. 120–22. Indeed, the plaintiffs them- had overcome the presumption to which selves assert in their complaint that evi- [plaintiff’s] choice of forum was entitled’’ dence ‘‘vital’’ to their claims is kept by the given that ‘‘ ‘the conduct giving rise to the defendants in Hungary. SAC ¶ 208 (‘‘De- causes of action never left Hungary’s bor- fendants have maintained in their archives, ders’; that nearly all of the relevant evi- in hard-copy, facsimile and digital form, dence is located in Hungary; that all but documents TTT relating to the isolation, one of the witnesses are Hungarians who ghettoization, enslavement and plundering are in Hungary and that many of them are of Hungarian Jewry and their deportation nonparties who are not subject to compul- to the German death camps, as well as sory process; that the dispute has ‘mini- evidence of such acts and events TTT [and mal ties’ to New York or the United States have] consistently denied access to these and TTT that ‘[i]t is highly likely that Hun- records which are vital to the proof of this garian law would apply.’ ’’). case.’’). The plaintiffs’ own expert express- b. Private Factors es the same view that records relevant to [27] Where, as here, an adequate alter- the plaintiffs’ claims are located in Hunga- ´ native forum exists, a court must next ry. See Hanak Decl. ¶ 39 (‘‘I understand balance enumerated private interest fac- from scholarly works and from Hungarian tors to decide whether ‘‘trial in the chosen scholars that there is an abundance of forum would be unnecessarily burdensome records of [confiscation of the property of for the defendant or the court.’’ Piper Hungarian Jews] in Hungarian archives.’’). Aircraft, 454 U.S. at 255 n.23, 102 S.Ct. Furthermore, the defendants point out 252. Each of these considerations weighs that these documents are likely paper rec- in the defendants’ favor. ords, written in Hungarian, the production First, regarding the relative ease of ac- of which would require the defendants to cess to sources of proof, the defendants comb through the Hungarian archives to argue that ‘‘all of the relevant events al- identify relevant paper documents and leged in the Complaint took place in Hun- would then require all documents to be gary,’’ and ‘‘to the extent any records of translated in to English before being sub- these events exist, they are most likely mitted to the Court. Defs.’ Mem. Ex. X, archived in Hungary.’’ Defs.’ Mem. at 28; Decl. of Zsuzsanna Mik´o, General Director see also id. Ex. V, Decl. of L´azl´o Cs¨osz, of the National Archives of Hungary, ¶ 4 Chief Archivist of the Statewide Archives (‘‘[T]o the extent any documents relevant of the Hungarian Nat’l Archives, ¶¶ 3–6 to the events TTT exist in the archives, (discussing the extensive documents in the they would likely be in hard-copy in the Hungarian Archives related to ‘‘property Hungarian language.’’), ECF No. 120–24. taken from Hungarian nationals during ‘‘When documentary evidence is in a lan- World War II’’), ECF No. 120–21; id. Ex. guage other than English (and that other W, Decl. of Ilona D´avid, President of MAVi language is used in the alternative court), ¶ 7 (‘‘As MAVi has only ever maintained the cost of having to translate the docu- SIMON v. REPUBLIC OF HUNGARY 65 Cite as 277 F.Supp.3d 42 (D.D.C. 2017) ments (as well as trial or deposition testi- suit against RCH, whose dismissal from mony) into English if the case were re- the instant case in Simon I was based on tained militates in favor of dismissal.’’ 17 the lack of personal jurisdiction. See Si- MOORE’S FEDERAL PRACTICE–CIV- mon I, 37 F.Supp.3d at 444. This jurisdic- IL § 111.74. tional defect would not be present in Hun- Second, regarding the availability of pro- gary. See Defs.’ Mem. at 30 n. 17 (noting cess for compelling unwilling witnesses that as a company ‘‘incorporated in Hunga- and the cost for obtaining attendance of ry and headquartered in Budapest, Hunga- willing witnesses, the defendants are cor- ry,’’ Hungarian courts would have jurisdic- rect that ‘‘many witnesses with personal tion over RCH). knowledge will be located in Hungary,’’ that most Hungarian witnesses will likely [28] For all of these practical reasons, ‘‘be elderly and may not be willing or able the private interest factors weigh strongly to travel to the United States,’’ and that in favor of dismissing this lawsuit. The unwilling witnesses would potentially be plaintiffs protest that ‘‘the emotional bur- outside the jurisdiction of this Court. den if forced to return to Hungary’’ should Defs.’ Mem. at 28–29. If the claims are weigh in favor of retaining the case here. brought in Hungary, however, the defen- Pls.’ Opp’n at 38–39; see also id. at 31. dants note that Hungarian witnesses These feelings about returning to Hungary would not have to travel internationally to are understandable, and this concern must participate in litigation, and ‘‘unlike this be weighed against the factors in the de- Court, Hungarian courts would have the fendants’ favor. As the Seventh Circuit power to compel testimony and the pro- aptly stated, ‘‘[a]s survivors of the effort of duction of documents from witnesses locat- an earlier Hungarian government to exter- ed in Hungary.’’ Id. at 29; see also Abe- minate them or their loved ones, plaintiffs lesz, 692 F.3d at 684 (concluding, in a have an understandable fear and reluc- similar suit brought by Hungarian Jews tance to trust a Hungarian forum to try against Hungary, that ‘‘much of the evi- their claims fairly.’’ Abelesz, 692 F.3d at dence and surviving witnesses are located’’ 684. While acknowledging the profound na- in Hungary). Though the parties have not ture of the emotional weight of bringing identified a comprehensive list of relevant this case in Hungary, the Court is hesitant witnesses, whether in Hungary or else- to find that this factor outweighs virtually where, see Pls.’ Opp’n. at 35–37 (arguing every other factor weighing in favor of defendants have failed to sufficiently as- dismissing under forum non conveniens. sert the location of potential witnesses), While the plaintiffs’ emotional distress or the plaintiffs themselves have already even trauma in returning to Hungary sought to depose at least one witness locat- should not be discounted, those difficulties ed in Hungary who was unable to travel are not sufficient to ignore the overwhelm- out of the country. ing weight of applicable legal factors to Additionally weighing in favor of the hale a foreign sovereign into a U.S. court alternative forum of Hungary is the possi- to answer for its conduct over seventy bility that the plaintiffs may seek to bring years ago.11
11. The plaintiffs’ brief argument that Hunga- misses the mark. Pls.’ Opp’n at 39 n.29 (citing ry cannot complain that the United States is European Cmty. v. RJR Nabisco, Inc., Case. an inconvenient forum because it is ‘‘is cur- No. 1:02–cv–05771, 2002 WL 32153422 rently a plaintiff in a lawsuit filed in the U.S.’’ (E.D.N.Y. filed Oct. 30, 2002)). In European 66 277 FEDERAL SUPPLEMENT, 3d SERIES
c. Public factors four of the fourteen named plaintiffs are The key public interest factors, includ- now U.S. citizens, ‘‘and because public poli- ing the ‘‘ ‘local interest in having localized cy favors a domestic forum for U.S. citi- controversies decided at home’ ’’ and ‘‘the zens to redress wrongs,’’ the plaintiffs dis- possibility of holding the trial in a forum count ‘‘Hungary’s interest in defending ‘at home with the law that must govern the against alleged international human rights case, rather than having a court in some violations.’’ Id. other forum untangle problems in conflict Hungary’s interest in this case goes be- of laws,’ ’’ MBI, 616 F.3d at 576 (quoting yond merely defending against potential Gulf Oil, 330 U.S. at 509, 67 S.Ct. 839), liability for its conduct during World War strongly favor dismissal of this action. II. Hungary has an interest in every part Plainly, the claims at issue involve Hun- of the litigation, and has a moral interest, garians brutally taking the property of if not obligation, to hear the plaintiffs’ other Hungarians in Hungary during claims and provide them appropriate relief. World War II, giving, as the defendants By contrast, binding Supreme Court prec- point out, Hungary ‘‘a far stronger interest edent cautions federal courts against exer- than the United States in resolving this cising broad jurisdiction over foreign sov- dispute.’’ Defs.’ Mem. at 32. There simply ereigns. See Pimentel, 553 U.S. at 866, 128 is ‘‘no connection between the allegations S.Ct. 2180 (noting that where ‘‘claims TTT of wrongdoing in the Complaint and the arise from events of historical and political United States,’’ id. at 31–32, although that significance TTT [t]here is a comity interest does not mean this country has no interest in allowing a foreign state to use its own in seeing justice done. In this regard, Hun- courts for a dispute if it has a right to do gary has made efforts, feeble as they may so’’). have been in the past, to provide relief to victims of the Hungarian Holocaust and [29] Invoking another of the Gulf Oil continues to express strong interest in re- public factors, the defendants next note solving disputes over its past actions. Id. at that Hungarian law would likely apply to 33 (noting that Hungary’s interests in this the plaintiffs’ claims, requiring this Court case are ‘‘clearly paramount’’). to interpret and apply Hungarian law to The plaintiffs counter that ‘‘Hungary’s the merits of this case. Defs.’ Mem. at 30. interest, if any, is far outweighed’’ by the Regardless of whether a court ultimately United States’ ‘‘interest and involvement is required to apply the law of a foreign TTT in violations of international human country, the mere issue of ‘‘untangl[ing] rights norms and in Holocaust reparation problems in conflict of laws,’’ supports dis- matters.’’ Pls.’ Opp’n at 40–41. Given that missing this case in favor of the foreign
Cmty., Hungary, along with 25 other member- teering activity directed and managed from states of the European Community, sued RJR the United States.’’) (Ginsburg, J. dissenting). Nabisco and other related defendants, all No such connections exist in this case be- headquartered in the United States, alleging tween the United States and the conduct giv- that the defendants had orchestrated viola- ing rise to the plaintiffs’ claims. Moreover, the tions of the Racketeer Influenced and Corrupt factors articulated in Piper Aircraft and Gulf Organizations Act from within the United Oil suggest that the analysis is specific to an States. See RJR Nabisco, Inc. v. European individual case: the fact that Hungary is a Cmty., ––– U.S. ––––, 136 S.Ct. 2090, 2114, plaintiff in the United States for one particu- 195 L.Ed.2d 476 (2016) (‘‘All defendants are lar action does not mean that it forfeits a U.S. corporations, headquartered in the Unit- forum non conveniens claim in a separate ed States, charged with a pattern of racke- case. D.C. ASSOCIATION OF CHARTERED PUBLIC SCHOOLS v. DC 67 Cite as 277 F.Supp.3d 67 (D.D.C. 2017) forum.’’ Gulf Oil, 330 U.S. at 509, 67 S.Ct. Each of the relevant public interest fac- 839; see also Piper Aircraft, 454 U.S. at tors weigh strongly in favor of Hungary as 260, 102 S.Ct. 252 (‘‘[T]he need to apply the preferred location for this litigation. foreign law point[s] toward dismissal.’’). At least one court, considering similar claims, *** held that it was required ‘‘to apply Hun- Evaluation of all of the Gulf Oil factors garian law to a host of delicate issues, weighs uniformly and heavily in favor of especially those concerning remedies.’’ Hungary as the more appropriate forum Fischer, 777 F.3d at 871. Indeed, in light for this lawsuit. Accordingly, dismissal un- of the parties’ disputes about the language der the forum non conveniens doctrine is of the Basic Law, this Court could be warranted. required not only to interpret Hungarian law governing property claims, but Hun- III. CONCLUSION garian constitutional law as well. The D.C. Circuit authorized this Court Finally, the defendants note that this on remand to consider the doctrines of case ‘‘is not a typical, garden variety law- prudential exhaustion, which the Seventh suit—it raises significant substantive and Circuit applied to a case on similar facts, procedural issues and challenges that along with the doctrine of forum non con- could prove to be a substantial drain on veniens, if either or both of those grounds the Court’s resources.’’ Defs.’ Mem. at 33 for dismissal were raised by the defen- (citing MBI Grp., Inc. v. Credit Foncier dants. Both doctrines apply here and war- du Cameroun, 558 F.Supp.2d 21, 34 rant dismissal of this action without preju- (D.D.C. 2008) (‘‘The administrative difficul- dice. Accordingly, the defendants’ motion ties of trying this case in a forum thou- to dismiss is granted. sands of miles away from the majority of An appropriate Order accompanies this witnesses and the evidence are obvious.’’ Memorandum Opinion. (internal quotations and citations omit- ted))). The plaintiffs counter that ‘‘[t]here is no evidence that Hungarian courts are , less congested than this Court,’’ and assert that the defendants ‘‘fail to specify why this factor weighs in their favor.’’ Pls.’ D.C. ASSOCIATION OF CHARTERED Opp’n at 40. Given the size of the class the PUBLIC SCHOOLS, et al., plaintiffs seek to certify, the age of the Plaintiffs, claims, relevant witnesses and documents, and the location, language, and condition of v. much of the evidence in this case, the DISTRICT OF COLUMBIA, administrative burden posed on this Court et al., Defendants. is not insignificant. Those burdens would be somewhat lessened on the Hungarian Case No. 14–cv–1293 (TSC) courts, based on Hungary’s status as the United States District Court, location where all of the conduct giving District of Columbia. rise to this litigation occurred, with famil- iarity with the language and proximity to Signed 09/30/2017 archived documents and available wit- Background: District of Columbia public nesses. charter schools and an association that 1172 911 FEDERAL REPORTER, 3d SERIES from suit; statute of limitations bar; Jack- F.Supp.3d 42, dismissed action. Survivors son’s failure to comply with D.C. Code appealed. § 12-309; and Jackson’s failure to state Holdings: The Court of Appeals, Millett, plausible claim for relief). Circuit Judge, held that: So ordered. (1) FSIA did not require survivors’ ex- haustion of remedies in Hungarian court before bringing action; , (2) District Court abused its discretion by dismissing action on basis of forum non conveniens; and Rosalie SIMON, et al., Appellants (3) action would not be reassigned to dif- v. ferent district court judge on remand, REPUBLIC OF HUNGARY and absent any evidence that judge acted Magyar Allamvasutak Zrt., with anything but impartiality. Appellees Reversed and remanded. No. 17-7146 Katsas, Circuit Judge, issued dissenting opinion. United States Court of Appeals, District of Columbia Circuit. 1. International Law O10.31 Argued April 20, 2018 The Foreign Sovereign Immunities Decided December 28, 2018 Act (FSIA) is a comprehensive statute Rehearing En Banc Denied containing a set of legal standards govern- February 15, 2019 ing claims of immunity in every civil action Background: Fourteen Hungarian Jew- against a foreign state or its political sub- ish survivors of the Hungarian Holocaust divisions, agencies, or instrumentalities. brought putative class action against the 28 U.S.C.A. § 1602 et seq. Republic of Hungary and the Hungarian 2. International Law O10.33 state-owned railway arising from partic- Under Foreign Sovereign Immunities ipation in and perpetration of the Holo- Act (FSIA), courts may hear a case only if caust, alleging conversion, unjust enrich- one of the FSIA’s exceptions applies, be- ment, false imprisonment, torture, assault, cause subject-matter jurisdiction in any and violations of international law. The such action depends on that application. United States District Court for the Dis- 28 U.S.C.A. §§ 1605-1605A. trict of Columbia, 37 F.Supp.3d 381, dis- missed on basis that defendants were en- 3. International Law O10.33 titled to sovereign immunity under the Application of the expropriation ex- Foreign Sovereign Immunities Act ception to foreign sovereign immunity un- (FSIA). Survivors appealed. The Court of der Foreign Sovereign Immunities Act Appeals, Srinivasan, Circuit Judge, 812 (FSIA) hinges on a three-part inquiry: (1) F.3d 127, affirmed in part, reversed in the claim must be one in which rights in part, and remanded. Following remand, property are in issue; (2) the property in the United States District Court for the question must have been taken in violation District of Columbia, No. 1:10-cv-01770, of international law; and (3) one of two Beryl A. Howell, Chief Judge, 277 commercial-activity nexuses with the Unit- SIMON v. REPUBLIC OF HUNGARY 1173 Cite as 911 F.3d 1172 (D.C. Cir. 2018)
ed States must be satisfied. 28 U.S.C.A. 8. International Law O10.31 § 1605(a)(3). Under the Foreign Sovereign Immu- nities Act (FSIA), courts are duty-bound 4. Federal Courts O3642 to enforce the standards outlined in the The Court of Appeals reviews de novo statute’s text, and when jurisdiction exists, the statutory question of whether the For- courts have the power, and ordinarily the eign Sovereign Immunities Act (FSIA) al- obligation, to decide cases and controver- lows a federal court, on grounds of inter- sies properly presented to them. 28 national comity, to dismiss a case over U.S.C.A. § 1602 et seq. which it has jurisdiction in favor of the O defendant’s home forum. 28 U.S.C.A. 9. Federal Courts 2971 § 1602 et seq. The doctrine of forum non conveniens is not displaced by the Foreign Sovereign O 5. Federal Courts 3583 Immunities Act (FSIA). 28 U.S.C.A. A district court’s forum non conve- § 1602 et seq. niens determination is reviewed for a clear 10. Federal Courts O2976 abuse of discretion by the Court of Ap- peals. The doctrine of ‘‘forum non conve- niens’’ applies when both the United 6. Administrative Law and Procedure States and a foreign forum could exercise O2152 jurisdiction over a case, but the United States proves to be an inconvenient forum, ‘‘Exhaustion’’ involves pressing claims or the plaintiff is vexing, harassing, or through a decisional forum, often an ad- oppressing the defendant by inflicting ministrative agency or specialized body, upon him or her expense or trouble not whose decision is then subject to the re- necessary to plaintiff’s pursuit of a reme- view of a federal court. dy. See publication Words and Phrases See publication Words and Phrases for other judicial constructions and for other judicial constructions and definitions. definitions. O 7. International Law 10.33 11. Federal Courts O2861, 2973 Hungarian Jewish survivors of the Under doctrine of forum non conve- Hungarian Holocaust were not required to niens, there is a strong presumption in exhaust remedies in Hungarian courts, as favor of the plaintiff’s choice of the forum matter of international comity, before in which to press his or her suit; further, bringing claims alleging conversion, unjust the plaintiff’s choice of forum merits still enrichment, false imprisonment, torture, greater deference when the plaintiff has assault, and violations of international law chosen his or her home forum, as it is against the Republic of Hungary and the reasonable to assume this choice is conve- Hungarian state-owned railway arising nient, and convenience is the lodestar of from their participation in and perpetra- the doctrine. tion of the Holocaust; nothing in text of O Foreign Sovereign Immunities Act’s 12. Federal Courts 2981 (FSIA) expropriation exception required When deciding whether to dismiss exhaustion before bringing suit. 28 case on basis of forum non conveniens, a U.S.C.A. § 1605(a)(3). court must ensure that plaintiffs can rein- 1174 911 FEDERAL REPORTER, 3d SERIES
state their suit in the alternative forum 16. Federal Courts O2979 without undue inconvenience or prejudice. The private interest factors consid- 13. Federal Courts O2861, 2979 ered when deciding whether to dismiss In deciding whether to deny a plaintiff action based on forum non conveniens in- his or her chosen forum and dismiss case clude: (1) the relative ease of access to on basis of forum non conveniens, courts sources of proof; (2) availability of compul- weigh a number of private and public in- sory process for attendance of unwilling terests; at bottom, the strong presumption witnesses; and (3) all other practical prob- in favor of the plaintiff’s choice can be lems that make trial of a case easy, expedi- overcome only when the private and public tious, and inexpensive. interest factors clearly point to a foreign 17. Federal Courts O2979 forum. It is the defendants’ obligation to pro- 14. Federal Courts O2996(4) vide enough information to enable a Dis- District Court abused its discretion by trict Court to balance the relevant private dismissing action, on basis of forum non interest factors considered when deciding conveniens, brought by Hungarian Jewish whether to dismiss action based on forum survivors of Hungarian Holocaust against non conveniens. Republic of Hungary and Hungarian state- owned railway arising from participation in 18. Federal Courts O2979 and perpetration of the Holocaust, alleging The public interest factors considered conversion, unjust enrichment, false im- when deciding whether to dismiss action prisonment, torture, assault, and violations based on forum non conveniens include: (1) of international law; American survivors administrative difficulties flowing from had strong interest in seeking justice in court congestion; (2) the local interest in American courts, Hungary did not show having localized controversies decided at United States was less convenient forum home; (3) the interest in having the trial of than Hungary to access and conduct ac- a diversity case in a forum that is at home tion, it was inconvenient to further delay with the law that must govern the action; elderly survivors’ almost decade-long pur- and (4) the avoidance of unnecessary prob- suit of justice, District Court improperly lems in conflict of laws, or in the applica- required survivors to prove Hungary was tion of foreign law. not proper forum, where Hungary was in fact required to prove availability and ade- 19. Federal Courts O3799 quacy of Hungarian forum, and relevant Putative class action brought by 14 private and public interests in action point- Hungarian Jewish survivors of the Hun- ed strongly in favor of survivors’ choice of garian Holocaust against the Republic of United States as forum. Hungary and the Hungarian state-owned 15. Federal Courts O2996(4) railway arising from participation in and Federal courts must ensure that a perpetration of the Holocaust, alleging decision to dismiss on forum non conve- conversion, unjust enrichment, false im- niens grounds will not lead to a foreign prisonment, torture, assault, and violations sovereign delaying exhaustion of a plain- of international law, would not be reas- tiff’s remedies under its own laws in a way signed to different district court judge on that could end up foreclosing the claims remand, absent any evidence that judge altogether. acted with anything but impartiality. SIMON v. REPUBLIC OF HUNGARY 1175 Cite as 911 F.3d 1172 (D.C. Cir. 2018)
20. Federal Courts O3799 half a million Jews into Hungarian railroad The Court of Appeals will reassign a stations, stripped them of all their person- case to a different district court judge only al property and possessions, forced them in the exceedingly rare circumstance that a onto trains, and transported them to death judge’s conduct is so extreme as to display camps like Auschwitz, where 90% of them clear inability to render fair judgment. were murdered upon arrival. Id. at 133– 134.
Appeal from the United States District Fourteen of the very few survivors of Court for the District of Columbia (No. the Hungarian government’s pogrom (col- 1:10-cv-01770) lectively, ‘‘Survivors’’), including four Unit- ed States citizens, filed suit against the Paul G. Gaston, Washington, DC, argued Republic of Hungary and Magyar Allam-i the cause for appellants. With him on the vasutak Zrt. (‘‘MAV’’),i Hungary’s state- briefs were Charles S. Fax, Liesel J. Scho- owned railway company. As relevant here, pler, L. Marc Zell, and David H. Wein- the litigation seeks compensation for the stein. seizure and expropriation of the Survivors’ Samuel J. Dubbin, Coral Gables, FL, property as part of the Hungarian govern- was on the brief for amici curiae Holocaust ment’s genocidal campaign. See Simon, Survivors Foundation USA, Inc., et al. in 812 F.3d at 134. support of plaintiffs-appellants. In a prior appeal in this case, we held Geoffrey M. Klineberg and Daniel S. that Hungary’s and MAV’si seizure of the Severson, Washington, DC, were on the Survivors’ property was an act of genocide, brief for amicus curiae Professor William and that the Survivors had adequately al- S. Dodge in support of plaintiffs-appel- leged jurisdiction over MAV’si acts of geno- lants. cidal expropriation in violation of interna- Gregory S. Silbert argued the cause for tional law. See Simon, 812 F.3d at 142, appellees. With him on the brief was Kon- 147–148. Although the Survivors’ first com- rad L. Cailteux, New York, NY. plaint had not sufficiently alleged that ju- risdiction existed over Hungary, we noted Before: MILLETT, PILLARD, and that they might yet be able to make that KATSAS, Circuit Judges. showing. See id. at 148.
Dissenting opinion filed by Circuit On remand, the district court dismissed Judge Katsas. the case on two alternative grounds, both of which are at issue here. First, the court MILLETT, Circuit Judge: held that, regardless of whether the Sur- ‘‘Nowhere was the Holocaust executed vivors’ claims against Hungary amounted with such speed and ferocity as it was in to expropriation, principles of international Hungary.’’ Simon v. Republic of Hungary, comity required that the Survivors first 812 F.3d 127, 133 (D.C. Cir. 2016) (internal try to adjudicate their claims in Hungary. quotation marks and citation omitted). Second, the court held that, under the More than 560,000 Hungarian Jews—68% doctrine of forum non conveniens, a Hun- of Hungary’s pre-war Jewish population— garian forum would be so much more con- were killed in one year. Id. at 134. In 1944 venient for resolution of the claims as to alone, a concentrated campaign by the clearly override the Survivors’ choice to Hungarian government marched nearly litigate the case in the United States. 1176 911 FEDERAL REPORTER, 3d SERIES
The district court erred on both fronts. Then, in 1944, the Nazis occupied Hun- Our recent decision in Philipp v. Federal gary and installed a ‘‘fanatically anti-Se- Republic of Germany, 894 F.3d 406 (D.C. mitic’’ regime. Simon, 812 F.3d at 133. Cir. 2018), which post-dated the district Over the Summer of 1944, Hungary round- court’s ruling, squarely rejected the as- ed up more than 430,000 Jews for deporta- serted comity-based ground for declining tion to Nazi death camps, primarily Aus- statutorily assigned jurisdiction. With re- chwitz. Second Am. Compl. ¶ 120. With spect to the dismissal on forum non conve- tragic efficiency, Hungarian government niens grounds, the district court commit- officials, including MAVi employees, creat- ted material legal errors at each step of its ed a schedule of deportations, along with analysis. A proper application of the rele- planned routes and destinations, with four vant factors leaves no basis for designating trains running daily. Id. ¶ 117. Seventy to Hungary the strongly preferred location ninety people were packed into an individ- for this litigation because Hungary is not ual freight car, so that each train trans- home to any identified plaintiff, has not ported 3,000 to 3,500 Hungarian Jews to been shown to be the source of governing almost certain death. Id. Before the Jews law, lacks a process for remediation recog- were crammed into the trains, MAVi offi- nized by the United States government, cials robbed them of all their possessions. and is not the only location of material Id. ¶ 112. According to the Survivors, amounts of evidence. There is, in short, far ‘‘[w]ithout the mass transportation provid- too little in this record to designate Hun- ed by the Defendant [MAV],i the scale of gary a more convenient forum than the the Final Solution in Hungary would never one chosen by the Survivors. For those have been possible.’’ Id. ¶ 133. reasons, we reverse and remand for fur- ther proceedings consistent with this opin- B ion. The United States traditionally afforded foreign sovereign nations immunity from I suit in domestic courts as a matter of ‘‘grace and comity.’’ Republic of Austria v. A Altmann, 541 U.S. 677, 689, 124 S.Ct. The terrible facts giving rise to this 2240, 159 L.Ed.2d 1 (2004). Given the Po- litigation are recounted at length in our litical Branches’ constitutional expertise in first opinion in this case. See Simon, 812 foreign affairs, courts would historically F.3d at 132–134. In brief, Hungary ‘‘began ‘‘defer[ ] to the decisions of the political a systematic campaign of [official] discrim- branches—in particular, those of the Exec- ination’’ against its Jewish population ‘‘as utive Branch—on whether to take jurisdic- early as 1941.’’ Id. at 133. At that time, tion over particular actions against foreign Hungary began rounding up tens of thou- sovereigns and their instrumentalities.’’ Id. sands of Jewish citizens and refugees who (internal quotation marks omitted); see had fled from surrounding countries, and also United States v. Curtiss-Wright Ex- sending them to internment camps near port Corp., 299 U.S. 304, 319–320, 57 S.Ct. the Polish border. Id.; Second Amended 216, 81 L.Ed. 255 (1936). But over time, Class Action Complaint ¶ 105, Simon v. conflicting theories on when immunity Republic of Hungary, No. 10-1770 (D.D.C. should apply created ‘‘disarray’’ in the June 13, 2016), ECF No. 118 (‘‘Second Am. State Department’s immunity decisions. Compl.’’). Altmann, 541 U.S. at 690, 124 S.Ct. 2240. SIMON v. REPUBLIC OF HUNGARY 1177 Cite as 911 F.3d 1172 (D.C. Cir. 2018)
[1] Congress responded in 1976 by en- erty’’ either (i) ‘‘is present in the United acting the Foreign Sovereign Immunities States in connection with a commercial Act (‘‘FSIA’’), 28 U.S.C. § 1602 et seq. The activity carried on in the United States by FSIA is a ‘‘comprehensive statute contain- the foreign state,’’ or (ii) ‘‘is owned or ing a set of legal standards governing operated by an agency or instrumentality claims of immunity in every civil action of the foreign state and that agency or against a foreign state or its political sub- instrumentality is engaged in a commercial divisions, agencies, or instrumentalities.’’ activity in the United States[.]’’ 28 U.S.C. Altmann, 541 U.S. at 691, 124 S.Ct. 2240 § 1605(a)(3). (internal quotation marks omitted); see also id. (‘‘Congress sought to remedy [3] Application of that exception hinges these problems by enacting the FSIA.’’). on a three-part inquiry: Congress enacted guiding ‘‘principles’’ so [1] the claim must be one in which that the ‘‘courts of the United States’’ ‘‘rights in property’’ are ‘‘in issue’’; could decide ‘‘the claims of foreign states [2] the property in question must have to immunity’’ on the terms prescribed by been ‘‘taken in violation of international Congress. 28 U.S.C. § 1602; see Altmann, law’’; and 541 U.S. at 691, 124 S.Ct. 2240 (‘‘The Act [3] one of two commercial-activity nexus- * * * transfers primary responsibility for es with the United States must be satis- immunity determinations from the Execu- fied. tive to the Judicial Branch.’’). Simon, 812 F.3d at 140. [2] The FSIA enumerates specific ex- ceptions to foreign sovereign immunity C and confers federal-court jurisdiction over foreign sovereigns in qualifying cases. 28 1 U.S.C. §§ 1605–1605A. Courts may hear a The Survivors are four United States case only if ‘‘one of the exceptions applies’’ citizens—Rosalie Simon, Charlotte Weiss, because ‘‘subject-matter jurisdiction in any Rose Miller, and Ella Feuerstein Schlan- such action depends on that application.’’ ger—as well as Helen Herman and Helena Altmann, 541 U.S. at 691, 124 S.Ct. 2240 Weksberg from Canada; Tzvi Zelikovitch, (internal quotation marks omitted). Con- Magda Kopolovich Bar-Or, Zehava Fried- gress was also explicit that, if an exception man, Yitzhak Pressburger, Alexander applies, ‘‘[a] foreign state shall not be im- Speiser, Ze-ev Tibi Ram, and Moshe Perel mune from the jurisdiction of courts of the from Israel; and Vera Deutsch Danos from United States or of the States.’’ 28 U.S.C. Australia. Second Am. Compl. ¶¶ 5–9, 14, § 1605(a). 22, 27, 28, 39, 41, 49, 65, 73, 81.1 Seeking This case involves the FSIA’s expropria- some measure of compensation for their tion exception to foreign sovereign immu- injuries, the Survivors filed suit against nity. Section 1605(a)(3) waives foreign sov- the Republic of Hungary, MAV,i and Rail ereign immunity in cases asserting that Cargo Hungaria Zrt., a private railway ‘‘rights in property [were] taken in viola- company that is the successor-in-interest tion of international law’’ if ‘‘that property to the former cargo division of MAV.i Si- or any property exchanged for such prop- mon v. Republic of Hungary, 37
1. Plaintiff Tzvi Zelikovitch passed away while to his rights, interests and entitlements.’’ Sec- the case was pending, but his three children, ond Am. Compl. at 3 n.1. who are all Israeli citizens, ‘‘have succeeded 1178 911 FEDERAL REPORTER, 3d SERIES
F.Supp.3d 381, 385 (D.D.C. 2014). The Sur- ry or MAV.i See generally United States vivors claim that ‘‘their possessions and Statement of Interest. those of their families were taken from The district court subsequently dis- them’’ by the defendants as they boarded missed Rail Cargo Hungaria Zrt. as a de- trains destined for concentration camps. fendant for lack of personal jurisdiction. Id. at 386 (internal quotation marks omit- Simon, 37 F.Supp.3d at 444. The district ted).2 court separately dismissed the case against Hungary and MAVi for lack of subject There is no dispute that Hungary and matter jurisdiction. The court reasoned MAVi are, respectively, a foreign sovereign that the Treaty of Peace with Hungary, and an instrumentality of a foreign sover- Feb. 10, 1947, 61 Stat. 2065, 41 U.N.T.S. eign whose claims of immunity are gov- 135 (‘‘1947 Treaty’’), ‘‘provide[d] for an ex- erned by the FSIA. See Simon, 812 F.3d clusive, extrajudicial mechanism to re- at 135 (citing 28 U.S.C. § 1603). Earlier in solve’’ the Survivors’ claims, and so the this litigation, the United States govern- court was ‘‘constrained by the FSIA to ment filed a Statement of Interest recom- recognize [their] sovereign immunity.’’ Si- mending that Rail Cargo Hungaria Zrt., mon, 37 F.Supp.3d at 420. now nearly 100% owned by an Austrian This court reversed. We held that the company, be dismissed from the case be- 1947 Treaty did not preempt the Surviv- cause of the United States’ ‘‘strong sup- ors’ suit because there was no express port for international agreements with conflict between the Treaty and the Sur- Austria involving Holocaust claims against vivors’ common-law claims. Simon, 812 Austrian companies—agreements that F.3d at 140. The Treaty established only a have provided nearly one billion dollars to ‘‘minimum obligation by Hungary’’ to com- Nazi victims.’’ Statement of Interest of the pensate victims; it did not provide the United States of America at 1, Simon v. ‘‘exclusive means’’ by which victims could Republic of Hungary, No. 10-1770 (D.D.C. obtain relief, leaving the Survivors free to July 15, 2011), ECF No. 42. Given the pursue other available remedies. Id. at 137 United States’ longstanding collaboration (emphasis omitted). with Austria to ‘‘develop funds to compen- sate victims of the Holocaust,’’ including This court also ruled that the FSIA’s the Austrian General Settlement Fund, the expropriation exception, 28 U.S.C. United States maintained that a ‘‘suit § 1605(a)(3), encompassed the types of against [Rail Cargo Hungaria Zrt.] runs common-law claims of conversion, unjust contrary * * * to enduring United States enrichment, and restitution asserted by the Survivors. Simon, 812 F.3d at 141 foreign policy interests.’’ Simon, 37 (‘‘We make FSIA immunity determinations F.Supp.3d at 393–394 (internal quotation on a claim-by-claim basis[.]’’). More specifi- marks omitted). cally, we held that the expropriation excep- The United States government said tion ‘‘squarely’’ applied, id. at 146, because nothing about any United States policy Hungary’s and MAV’si expropriations of interest that would support dismissal of the Survivors’ property were ‘‘themselves the claims against the Republic of Hunga- genocide,’’ in violation of fundamental ten-
2. The Survivors also seek to certify a class quest for class certification. See Order, Simon composed of Holocaust survivors similarly v. Republic of Hungary, No. 10-1770 (D.D.C. wronged by the Hungarian government. The Nov. 15, 2010), ECF No. 9. district court has not yet addressed the re- SIMON v. REPUBLIC OF HUNGARY 1179 Cite as 911 F.3d 1172 (D.C. Cir. 2018)
ets of international law, id. at 142. ‘‘The acquisition by Hungary of military equip- Holocaust’s pattern of expropriation and ment,’’ Hungary’s use of the United States’ ghettoization’’ in Hungary was a ‘‘whole- capital and debt markets to secure financ- sale plunder of Jewish property * * * ing, and Hungary’s acceptance of federal aimed to deprive Hungarian Jews of the grants and loans from the United States. resources needed to survive as a people.’’ Second Am. Compl. ¶ 101. Id. at 143 (internal quotation marks omit- The district court again dismissed the ted). Systematically stripping ‘‘a protected case. The court chose not to address group’’ of life’s necessities in order to whether the Survivors had adequately pled ‘‘physical[ly] destr[oy]’’ them is ‘‘genocide.’’ facts supporting application of the FSIA’s Id. expropriation exception. Instead, the dis- Looking to the complaint, this court held trict court held that, notwithstanding the that the Survivors had satisfactorily pled a jurisdiction expressly granted by the FSIA commercial nexus with respect to MAVi over properly pled expropriation claims, because MAVi engaged in commercial ac- ‘‘principles of international comity’’ re- tivity in the United States by ‘‘main- quired the Survivors ‘‘to exhaust [Hungari- tain[ing] an agency for selling tickets, an] remedies, except where those remedies booking reservations, and conducting simi- are futile or imaginary.’’ Simon v. Repub- lar business’’ here. Simon, 812 F.3d at 147 lic of Hungary, 277 F.Supp.3d 42, 54 (internal quotation marks omitted). The (D.D.C. 2017) (internal quotation marks complaint’s pleadings, however, needed omitted) (citing Fischer v. Magyar Allam-i more specificity to show the type of com- vasutak Zrt., 777 F.3d 847, 852, 858 (7th mercial nexus that would support exercis- Cir. 2015) ). The district court further ing jurisdiction over Hungary. We re- ruled that, notwithstanding the Survivors’ manded for the district court to address arguments about the rise of anti-Semitism that issue. Id. at 148. This court also left it in Hungary, a ‘‘lack of meaningful reme- to the district court to decide on remand dies,’’ and restrictions on the independence ‘‘whether, as a matter of international com- of Hungary’s judiciary, the Survivors’ ity, it should refrain from exercising juris- ‘‘pursuit of their claims in Hungary would diction over [the remaining] claims until not be futile.’’ Simon, 277 F.Supp.3d at 57– the plaintiffs exhaust domestic remedies in 63. Hungary,’’ and whether the doctrine of The district court further decided that forum non conveniens warranted dismiss- dismissal was warranted under the doc- al. Id. at 151. trine of forum non conveniens. The court reasoned that the Survivors’ choice of fo- 2 rum merited ‘‘minimal’’ deference, and that Upon their return to district court, the Hungary would be more convenient be- Survivors amended their complaint to al- cause of the evidence and many witnesses lege specific facts regarding Hungary’s on- located there. Simon, 277 F.Supp.3d at 63, going commercial activity in the United 64–65. In applying the forum non conve- States, including, among other things, niens doctrine, the court placed particular ‘‘[t]he promotion of Hungarian businesses emphasis on Hungary’s interest in resolv- through trading houses,’’ the promotion of ing the dispute itself. Id. at 66. Hungary as a destination for United States The Survivors appeal both grounds for tourists, ‘‘[t]he promotion of American in- dismissal and request that the case be vestment in Hungarian business[,]’’ ‘‘[t]he reassigned to a new district court judge. 1180 911 FEDERAL REPORTER, 3d SERIES
We agree that the district court erred in [6] Before addressing that argument, requiring the exhaustion of Hungarian some clarification of language is in order. remedies and in its forum non conveniens Exhaustion involves pressing claims analysis, but see no basis for assigning a through a decisional forum—often an ad- new district court judge to hear the case. ministrative agency or specialized body— whose decision is then subject to the re- II view of a federal court. See Woodford v. Ngo, 548 U.S. 81, 90, 92, 126 S.Ct. 2378, [4, 5] Because this appeal arises from a 165 L.Ed.2d 368 (2006) (describing exhaus- dismissal at the threshold of the case, ‘‘we tion as requiring a plaintiff to ‘‘us[e] all must accept as true all material allegations steps that the agency holds out, and do[ ] of the complaint, drawing all reasonable so properly (so that the agency addresses inferences from those allegations in plain- the issues on the merits),’’ or ‘‘requir[ing] a tiffs’ favor.’’ Philipp, 894 F.3d at 409 (in- state prisoner to exhaust state remedies ternal quotation marks omitted). ‘‘[T]he before filing a habeas petition in federal court may [also] consider the complaint court’’) (internal quotation marks omitted). supplemented by undisputed facts’’ of rec- When exhaustion applies, parties retain ord. Coalition for Underground Expan- the legal right to direct judicial review of sion v. Mineta, 333 F.3d 193, 198 (D.C. the underlying decision. Cir. 2003). We review de novo the statuto- The doctrine that Hungary invokes ry question of whether the FSIA allows a omits a crucial element of traditional ‘‘ex- federal court, on grounds of international haustion’’—the Survivors’ right to subse- comity, to dismiss a case over which it has quent judicial review here of the Hungari- jurisdiction (at a minimum as to MAV)i in an forum’s decision. Indeed, while we need favor of the defendant’s home forum. Phi- not definitively resolve the question, there lipp, 894 F.3d at 410. A district court’s is a substantial risk that the Survivors’ forum non conveniens determination is re- exhaustion of any Hungarian remedy could viewed for a clear abuse of discretion. preclude them by operation of res judicata Agudas Chasidei Chabad of United States from ever bringing their claims in the v. Russian Fed’n, 528 F.3d 934, 950 (D.C. United States. See Professor William S. Cir. 2008). Dodge Amicus Br. 15; de Csepel v. Repub- lic of Hungary, 714 F.3d 591, 606–608 III (D.C. Cir. 2013). So understood, enforcing what Hungary A calls ‘‘prudential exhaustion’’ would in ac- Hungary and MAVi (collectively, ‘‘Hun- tuality amount to a judicial grant of immu- gary’’) argue first that, even if the FSIA nity from jurisdiction in United States provides jurisdiction, the Survivors were courts. But the FSIA admits of no such required as a matter of international comi- bar. As this court recently held in Philipp ty to first ‘‘exhaust’’ or ‘‘prudential[ly] ex- v. Federal Republic of Germany, supra, haust[ ]’’ their claims in the Hungarian nothing in the FSIA or federal law empow- courts. Hungary Br. 34. According to Hun- ers the courts to grant a foreign sovereign gary, FSIA jurisdiction would attach, if at an immunity from suit that Congress, in all, only if Hungary closed its doors to the FSIA, has withheld. 894 F.3d at 414– their claims or the Survivors ‘‘show[ed] 415. To the contrary, the whole point of that exhaustion would be futile.’’ Id. at 28. the FSIA was to ‘‘abate[ ] the bedlam’’ of SIMON v. REPUBLIC OF HUNGARY 1181 Cite as 911 F.3d 1172 (D.C. Cir. 2018)
case-by-case immunity decisions, and put gressional command by just relabeling an in its place a ‘‘ ‘comprehensive set of legal immunity claim as ‘‘prudential exhaustion.’’ standards governing claims of immunity in Nor is Hungary’s form of judicially every civil action against a foreign state.’ ’’ granted immunity among those historical Id. at 415 (additional internal quotation legal doctrines, like forum non conveniens, marks and citation omitted) (quoting Re- that Congress chose to preserve when it public of Argentina v. NML Capital, Ltd., enacted the FSIA. Philipp, 894 F.3d at 416 573 U.S. 134, 134 S.Ct. 2250, 2255, 189 (citing 28 U.S.C. § 1606). Forum non con- L.Ed.2d 234 (2014) ). There is no room in veniens predates the FSIA by centuries, those ‘‘comprehensive’’ standards govern- and it was an embedded principle of the ing ‘‘every civil action,’’ id., for the extra- common-law jurisprudential backdrop textual, case-by-case judicial reinstatement against which the FSIA was written. Alt- of immunity that Congress expressly with- mann, 541 U.S. at 713, 124 S.Ct. 2240 drew. As we explained in Philipp—echoing (Breyer, J., concurring); see also Piper the Supreme Court—the whole point of Aircraft Co. v. Reyno, 454 U.S. 235, 248 the FSIA is that, ‘‘[g]oing forward, ‘any n.13, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) sort of immunity defense made by a for- (tracing the history of the doctrine). Hun- eign sovereign in an American court must gary’s theory, by contrast, lacks any pedi- stand on the Act’s text. Or it must fall.’ ’’ gree in domestic or international common Id. at 415 (quoting NML Capital, 134 S.Ct. law. See Philipp, 894 F.3d at 416 (citing at 2256). Agudas Chasidei Chabad of United States v. Russian Fed’n, 466 F.Supp.2d 6, 21 [7] Turning then to statutory text, (D.D.C. 2006) (‘‘[T]his court is not willing Hungary’s exhaustion-cum-immunity argu- to make new law by relying on a misap- ment has no anchor in the FSIA. In fact, plied, non-binding international legal con- as Philipp explains, the text points against cept.’’) ). it. When Congress wanted to require the [8] In short, controlling circuit and Su- pursuit of foreign remedies as a predicate preme Court precedent give no quarter to to FSIA jurisdiction, it said so explicitly. Hungary’s theory of judicial immunity Philipp, 894 F.3d at 415 (citing 28 U.S.C. wrapped in exhaustion clothing. Under the § 1605A(a)(2)(A)(iii) ); see also Torture FSIA, courts are duty-bound to enforce Victim Protection Act of 1991, 28 U.S.C. the standards outlined in the statute’s text, § 1350 note § 2(b) (‘‘A court shall decline and when jurisdiction exists (as it does at to hear a claim under this section if the least over MAV),i courts ‘‘have the power, claimant has not exhausted adequate and and ordinarily the obligation, to decide available remedies in the place in which cases and controversies properly present- the conduct giving rise to the claim oc- ed to them.’’ W.S. Kirkpatrick & Co. v. curred.’’). More to the point, the FSIA is Environmental Tectonics Corp., Int’l, 493 explicit that, if a statutory exception to U.S. 400, 409, 110 S.Ct. 701, 107 L.Ed.2d immunity applies—as we have squarely 816 (1990). held it does at least as to MAV,i Simon, 812 F.3d at 147—‘‘[a] foreign state shall B not be immune from the jurisdiction of [9, 10] Unlike Hungary’s prudential courts of the United States or of the immunity/exhaustion theory, the ancient States.’’ 28 U.S.C. § 1605(a) (emphasis doctrine of forum non conveniens is not added). Courts cannot end run that con- displaced by the FSIA. See Verlinden B.V. 1182 911 FEDERAL REPORTER, 3d SERIES
v. Central Bank of Nigeria, 461 U.S. 480, that an ‘‘adequate alternative forum for 490 n.15, 103 S.Ct. 1962, 76 L.Ed.2d 81 the dispute’’ exists, Chabad, 528 F.3d at (1983); see also Altmann, 541 U.S. at 713, 950, and that it is ‘‘the strongly preferred 124 S.Ct. 2240 (Breyer, J., concurring). location for the litigation,’’ MBI Grp., Inc. The doctrine applies when both the United v. Credit Foncier Du Cameroun, 616 F.3d States and a foreign forum could exercise 568, 571 (D.C. Cir. 2010) (emphasis added). jurisdiction over a case, but the United The court must likewise ‘‘ensure that States proves to be ‘‘an inconvenient fo- plaintiffs can reinstate their suit in the rum,’’ or the plaintiff is ‘‘ ‘vex[ing],’ ‘ha- alternative forum without undue inconven- rass[ing],’ or ‘oppress[ing]’ the defendant ience or prejudice.’’ Nemariam v. Federal by inflicting upon him expense or trouble Democratic Republic of Ethiopia, 315 F.3d not necessary’’ to the plaintiff’s pursuit of 390, 392–393 (D.C. Cir. 2003) (citation a remedy. Gulf Oil Corp. v. Gilbert, 330 omitted). U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). [13] In deciding whether to deny a plaintiff her chosen forum, courts weigh a [11] The forum non conveniens doc- number of private and public interests. trine comes with ground rules. The start- Piper, 454 U.S. at 241, 102 S.Ct. 252. At ing point is ‘‘a strong presumption in fa- bottom, the ‘‘strong presumption in favor vor’’ of the plaintiff’s choice of the forum in of the plaintiff’s choice’’ can be ‘‘overcome which to press her suit. Piper, 454 U.S. at only when the private and public interest 255–256, 102 S.Ct. 252; see also Atlantic factors clearly point’’ to a foreign forum. Marine Const. Co. v. United States Dist. Id. at 255, 102 S.Ct. 252 (emphasis added). Court for the W. Dist. of Texas, 571 U.S. 49, 66 n.8, 134 S.Ct. 568, 187 L.Ed.2d 487 [14] The district court committed a (2013) (plaintiffs’ chosen forum is hard to number of legal errors that so materially overcome ‘‘because of the ‘harsh result’ of distorted its analysis as to amount to a [the forum non conveniens] doctrine,’’ clear abuse of discretion. See El-Fadl v. which ‘‘requires dismissal of the case * * * Central Bank of Jordan, 75 F.3d 668, 677 and inconveniences plaintiffs in several re- (D.C. Cir. 1996) (‘‘[T]he district court spects and even makes it possible for abuses its discretion when it fails to con- plaintiffs to lose out completely’’) (internal sider a material factor or clearly errs in quotation marks and alternations omitted). evaluating the factors before it, or does The plaintiff’s choice of forum merits still not hold the defendants to their burden of ‘‘greater deference when the plaintiff has persuasion on all elements of the forum chosen [her] home forum.’’ Piper, 454 U.S. non conveniens analysis.’’) (formatting ed- at 255, 102 S.Ct. 252. For it is reasonable ited), abrogated on other grounds by Sa- to assume that ‘‘this choice is convenient,’’ mantar v. Yousuf, 560 U.S. 305, 314–315, and convenience is the lodestar of the fo- 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010); rum non conveniens doctrine. Id. at 256, see also Highmark Inc. v. Allcare Health 102 S.Ct. 252. By the same token, a foreign Mgmt. Sys., Inc., 572 U.S. 559, 134 S.Ct. plaintiff’s choice to litigate in the United 1744, 1748 n.2, 188 L.Ed.2d 829 (2014) (‘‘A States ‘‘deserves less deference.’’ Id. district court would necessarily abuse its [12] Because Hungary seeks to strip discretion if it based its ruling on an erro- the Survivors of their chosen forum and to neous view of the law or on a clearly erro- force them to sue on Hungary’s home turf, neous assessment of the evidence.’’) (inter- Hungary bears the burden of showing both nal quotation marks omitted). SIMON v. REPUBLIC OF HUNGARY 1183 Cite as 911 F.3d 1172 (D.C. Cir. 2018)
1 more convenient for all plaintiffs to travel The district court committed legal error to Hungary rather than for some to travel at the first step by affording the Survivors’ to the United States. The presence of for- choice of forum only ‘‘minimal deference.’’ eign plaintiffs certainly does not justify the Simon, 277 F.Supp.3d at 63. The starting preference for a forum—Hungary—in point is that the Survivors’ choice of forum which no plaintiff resides. The question, controls, and ‘‘unless the balance is strong- after all, centers on convenience, and forc- ly in favor of the defendant, the plaintiff’s ing every single one of the many elderly choice of forum should rarely be dis- plaintiffs to travel internationally is in no turbed.’’ Gulf Oil, 330 U.S. at 508, 67 S.Ct. way convenient. See Piper, 454 U.S. at 256 839 (emphases added). So it is Hungary n.24, 102 S.Ct. 252 (‘‘[C]itizenship and resi- that ‘‘bears a heavy burden in opposing dence are proxies for convenience[.]’’) (ci- [the Survivors’] chosen forum.’’ Sinochem tation omitted); cf. Iragorri v. United Int’l Co. v. Malaysia Int’l Shipping Corp., Techs. Corp., 274 F.3d 65, 71 (2d Cir. 2001) 549 U.S. 422, 430, 127 S.Ct. 1184, 167 (‘‘[T]he degree of deference given to a L.Ed.2d 15 (2007). Deference to the plain- plaintiff’s forum choice varies with the cir- tiffs’ choice is magnified when, as here, cumstances.’’). Nor is it in any way conve- United States citizens have chosen their nient for every one of the Survivors to home forum. See Piper, 454 U.S. at 255, return to the country that committed the 102 S.Ct. 252. mass murder of their families and the gen- The district court set the scales wrong ocidal theft of their every belonging. from the outset. It held that only ‘‘minimal Hungary bears the heavy burden of per- deference’’ was due in this case because, suasion here. Yet it made no effort to show although four of the plaintiffs were United how—as a matter of geographic proximity, States citizens, the other plaintiffs—from available transportation options, cost of Canada (2), Israel (7), and Australia (1)— travel, ease of travel access, or any other ‘‘will be required to travel internationally relevant consideration—the United States regardless of whether the litigation is in is a less convenient forum than Hungary the United States or Hungary.’’ Simon, for the United States and Canadian plain- 277 F.Supp.3d at 63. That analysis mis- tiffs, or even for the Israeli and Australian stepped in three respects. plaintiffs, to access and conduct their liti- First, the addition of foreign plaintiffs gation. To be sure, Hungary need not have does not render for naught the weighty engaged in ‘‘extensive investigation’’ to interest of Americans seeking justice in demonstrate that it is the more convenient their own courts. Here, nearly a third of forum. Piper, 454 U.S. at 258, 102 S.Ct. the plaintiffs are from the United States. 252. But given its burden of proof, Hunga- And there is no claim or evidence that the ry had to do something to show that its United States plaintiffs are in the case home turf was the more convenient loca- only as jurisdictional makeweights seeking tion for the litigation, and not just more to manipulate the forum choice. Under convenient for the defendant. See id. at these circumstances, the United States’ 256, 102 S.Ct. 252 (‘‘[T]he central purpose plaintiffs’ preference for their home forum of any forum non conveniens inquiry is to continues to carry important weight in the ensure that the trial is convenient[.]’’). forum non conveniens analysis. Second, the fact that other plaintiffs [15] Third, it is indisputably inconven- must travel does nothing to show that it is ient to further delay the elderly Survivors’ 1184 911 FEDERAL REPORTER, 3d SERIES
almost decade-long pursuit of justice. See of plaintiffs would be the same or would Schubarth v. Federal Republic of Germa- have significant overlap. Unadorned and ny, 891 F.3d 392, 396, 399 n.5 (D.C. Cir. tardy speculation carries no weight in the 2018) (plaintiff waited ‘‘nineteen years’’ for forum non conveniens calculus. a decision on her restitution application In sum, the misplacement of the burden from a foreign nation). That is important of proof and the resulting material gaps in because, if a remedy ultimately proves un- the district court’s legal analysis of Hunga- available in Hungary, there is an open ry’s arguments in favor of a Hungarian question whether that lost time might ren- forum pull the legs out from under much der the Survivors ineligible for FSIA juris- of the district court’s forum non conve- diction were they to once again attempt to niens analysis. press their claims here. See id. at 399 n.5 (noting, without resolving, the question of 2 whether the foreign nation’s or instrumen- The district court misallocated the bur- tality’s commercial activity must be ‘‘con- den of proof in a second consequential temporaneous to the filing of suit in th[e] respect. The court tasked the Survivors [United States], rather than contempora- with proving that Hungary was not a prop- neous with the alleged expropriation’’). er forum. Specifically, the district court District courts must ensure that a decision ruled that its prior finding, for purposes of to dismiss on forum non conveniens ‘‘prudential exhaustion,’’ that the Surviv- grounds will not lead to a foreign sover- ors’ ‘‘pursuit of their claims in Hungary eign ‘‘delaying exhaustion of a plaintiff’s would not be futile’’ equally ‘‘satisfie[d]’’ remedies under its own laws’’ in a way that the requirement ‘‘that Hungary [be] both could end up foreclosing the claims alto- an available and adequate alternative fo- gether. Id. rum.’’ Simon, 277 F.Supp.3d at 63. More In supplemental briefing before this specifically, the court earlier found that court, Hungary raises, for the first time the Survivors failed to ‘‘show convincingly’’ in this litigation, an argument that the that Hungarian remedies are ‘‘clearly a Survivors seek to represent a class with sham or inadequate or that their applica- more Hungarian members than American tion is unreasonably prolonged’’ in a man- members. That is too little too late. For ner that would render Hungarian remedies starters, that factual argument is forfeited ‘‘futile.’’ Id. at 54 (internal quotation marks because it has been fully available to omitted). In so ruling, the court noted the Hungary from the onset of this litigation, Survivors’ ‘‘heavy burden’’ to come for- yet it was not presented to the district ward with a ‘‘legally compelling reason’’ court. See Potter v. District of Columbia, why resort to a Hungarian forum would be 558 F.3d 542, 547 (D.C. Cir. 2009). futile. Id. at 57 (internal quotation marks In any event, the argument does not omitted). The court also considered and hold water. No class has been certified in rejected piece by piece the Survivors’ evi- this case. Hungary’s argument rests in- dence of futility, ultimately deeming their stead on information derived from a differ- arguments against so-called prudential ex- ent case in the Southern District of Flori- haustion ‘‘[un]persuasive.’’ Id. at 59–62. da, see Settlement Agreement, Rosner v. That chain of reasoning does not carry United States, No. 01-01859 (S.D. Fla. over to the forum non conveniens doc- April 29, 2005), ECF No. 209. Yet Hunga- trine, where the job of proving the avail- ry offers no evidence that the two groups ability and adequacy of a Hungarian forum SIMON v. REPUBLIC OF HUNGARY 1185 Cite as 911 F.3d 1172 (D.C. Cir. 2018) was Hungary’s, not the Survivors’. See nisms that have been or continue to be Chabad, 528 F.3d at 950. On top of that, available in Hungary with respect to such the question is not whether the alternative claims.’’ Brief for Amicus Curiae the Unit- forum is a sham, inadequate, or unreason- ed States at 11. It is hard to understand ably slow. Hungary had to affirmatively how a foreign forum can be so clearly prove both that an adequate remedy exists more convenient when the United States and that the comparative convenience of government itself does not have a clear its home forum was so ‘‘strong[ ]’’ as to understanding of its nature or operation.3 clearly warrant displacing the Survivors’ In other words, the district court let chosen forum. Gulf Oil, 330 U.S. at 508, 67 Hungary off the burden-of-proof hook by S.Ct. 839. transforming the Survivors’ failure to Hungary dismisses the court’s error as prove futility in the ‘‘prudential exhaus- an ‘‘innocuous’’ statement, Hungary Br. 15, tion’’ inquiry into proof of Hungary’s clear pointing to the court’s later reference to superiority as a forum in the forum non the correct standard in a parenthetical, id. conveniens analysis. On this record, that (quoting Simon, 277 F.Supp.3d at 62); see was a consequential legal error. See El- also Dissenting Op. at 1192–93 (character- Fadl, 75 F.3d at 677 (‘‘[T]he district court izing the misallocation of the burden of abuses its discretion when it * * * does proof as ‘‘at worst, an obviously harmless not hold the defendants to their burden of error’’). But applying the correct burden of persuasion on all elements of the forum proof is not a box-checking exercise. What non conveniens analysis.’’) (emphasis add- matters is whether the court’s analysis fit ed and internal quotation marks omitted). those later words. It did not. The district court instead equated its earlier finding of non-futility with proof that ‘‘Hungary is 3 both an available and adequate alternative The consequences of the district court’s forum.’’ Simon, 277 F.Supp.3d at 63. Those burden-allocation errors snowballed as the are two very different inquiries. See Fisch- court balanced the competing private and er, 777 F.3d at 867 (‘‘To be sure, the public interests in the two fora. The ulti- burden of proof differs between the [pru- mate inquiry, again, puts the onus on Hun- dential exhaustion and forum non conve- gary. The law’s ‘‘strong presumption in niens] inquiries’’ because, in the latter in- favor of the plaintiff’s choice of forum,’’ quiry, defendants must ‘‘establish that the Piper, 454 U.S. at 255, 102 S.Ct. 252, can remedies are adequate.’’) (emphasis omit- be overridden only if the ‘‘private and pub- ted). lic interest factors strongly favor[ ] dis- The proof is in the pudding. Under its missal,’’ Chabad, 528 F.3d at 950 (empha- inverted analysis, the district court never sis added). Given the record in this case, analyzed the critical question of the avail- the district court’s failure to hold Hungary ability and adequacy of the Hungarian fo- to that task makes this among ‘‘the rare rum. Bypassing that question was any- case[s]’’ in which a district court’s balanc- thing but harmless in this case, where ing of factors amounts to an abuse of even the United States government lacks discretion. Morley v. CIA, 894 F.3d 389, ‘‘a working understanding of the mecha- 391 (D.C. Cir. 2018).
3. To be fair to the district court, it did not States at the time of its decision. have the benefit of this brief from the United 1186 911 FEDERAL REPORTER, 3d SERIES
a No. 10-1770 (D.D.C. Oct. 31, 2016), ECF No. 122.4 [16, 17] As relevant here, the private- The issue of translation points both interest factors include the ‘‘relative ease ways as well. Given that many of the Sur- of access to sources of proof; availability of vivors speak English, the documents will compulsory process for attendance of un- in all likelihood have to be translated and willing [witnesses;] * * * and all other ‘‘digitized’’ for the parties regardless of practical problems that make trial of a which forum hears the case. See Philipp v. case easy, expeditious, and inexpensive.’’ Federal Republic of Germany, 248 Piper, 454 U.S. at 241 n.6, 102 S.Ct. 252 F.Supp.3d 59, 85 (D.D.C. 2017), aff’d, 894 (internal quotation marks omitted). It is F.3d 406 (D.C. Cir. 2018). Digitization, the defendants’ obligation to ‘‘provide moreover, has eased the burden of trans- enough information to enable the District continental document production and has Court to balance’’ the factors. Piper, 454 increasingly become the norm in global U.S. at 258, 102 S.Ct. 252. The court’s litigation. See, e.g., id. at 85; Itoba Ltd. v. analysis of the relevant record material in LEP Group PLC, 930 F.Supp. 36, 44 (D. this case was too quick to credit Hungary’s Conn. 1996). claims and too slow to value the Survivors’ The district court placed heavy emphasis evidence. on the presence of ‘‘many witnesses’’ in In weighing the private-interest factors, Hungary who cannot or were unwilling to the district court reasoned that (i) exten- travel. Simon, 277 F.Supp.3d at 65. But sive records are located in Hungary that that finding resulted from failing to hold would require translation into English, (ii) Hungary to its burden of proof. Hungary ‘‘many witnesses with personal knowledge failed to identify a single witness in Hun- will be located in Hungary’’ and unable to gary that would need to testify at trial. In travel, and (iii) the Survivors might later actuality, the evidence in this case will be choose to bring an action against Rail Car- largely documentary. See Oral Argument go Hungaria Zrt., a previously dismissed Tr. 4:17–4:21 (‘‘[Survivors’ Attorney]: No, I defendant. Simon, 277 F.Supp.3d at 64–65. don’t believe any people from Hungary will None of those reasons stands up to scruti- be called to prove our case. * * * [I]t’ll ny. also be proven by reference to some docu- ments[.]’’); id. at 19:1–19:4 (defendants’ At best, the location-of-relevant-evidence listing ‘‘bank records,’’ ‘‘business records,’’ factor is in equipoise. While there are and ‘‘tax records’’ as the type of evidence some records in Hungary, the Survivors the court would evaluate). That makes showed that an extensive collection of rele- sense. Because the relevant events oc- vant records has been amassed by the curred more than seventy years ago, the United States Holocaust Memorial Muse- likelihood is low that ‘‘many witnesses with um in Washington, D.C. See Memorandum personal knowledge’’ still exist and are in Opposition to Hungary’s Motion to Dis- able to testify. Simon, 277 F.Supp.3d at 65 miss 21, Simon v. Republic of Hungary, (internal quotation marks omitted). Some-
4. The Dissenting Opinion faults the Survivors no justification for visiting upon the Survivors for not having yet—at this pre-discovery the very duty of ‘‘extensive investigation’’ that stage—locked down the specific location of it rejects for Hungary at this procedural stage. documents regarding their ‘‘individual cases’’ Compare Dissenting Op. at 1193–94, with Dis- of seizure and expropriation. Dissenting Op. senting Op. at 1191–92. at 1193–94. But the Dissenting Opinion offers SIMON v. REPUBLIC OF HUNGARY 1187 Cite as 911 F.3d 1172 (D.C. Cir. 2018)
one who was barely an adult during the Piper, 454 U.S. at 241 n.6, 102 S.Ct. 252 war would now be in their mid-90s. To be (quoting Gulf Oil, 330 U.S. at 509, 67 S.Ct. sure, the Survivors wished to depose one 839). The district court concluded that elderly witness in Hungary. But that is far those factors weighed in favor of a Hun- too little to tip the balance at all, let alone garian forum because of Hungary’s strongly, in Hungary’s favor. See Gonzales ‘‘stronger’’ moral interest in resolving the v. O Centro Espirita Beneficente Uniao do dispute, the likelihood that Hungarian law Vegetal, 546 U.S. 418, 426–429, 126 S.Ct. would apply to the Survivors’ claims, and 1211, 163 L.Ed.2d 1017 (2006) (when evi- the administrative burden the litigation dence is ‘‘in equipoise,’’ the burden of proof could impose on the court. Simon, 277 has not been met). F.Supp.3d at 66–67. That analysis failed to The district court also emphasized that hold Hungary to its burden of proof, mi- the Survivors might wish to join Rail Car- sanalyzed the record evidence, and over- go Hungaria Zrt. as a defendant. But the looked material omissions in Hungary’s ability to implead third-party defendants claims. becomes relevant when the missing defen- First, the district court erred in assign- dant is ‘‘crucial to the presentation of [the ing such significant weight to Hungary’s appellee’s] defense.’’ Piper, 454 U.S. at asserted interest in addressing the Surviv- 259, 102 S.Ct. 252 (explaining that the ors’ claims. See Simon, 277 F.Supp.3d at ability to implead another defendant was 66. Hungary has had over seventy years to significant because the other parties could vindicate its interests in addressing its role be relieved of liability). Neither Hungary in the Holocaust. Yet the scheme Hungary i nor MAV has argued that Rail Cargo Hun- currently has in place has not been recog- garia Zrt. is crucial to its defense. And the nized by the United States government. Survivors do not claim that Rail Cargo See United States Statement of Interest at Hungaria Zrt. is necessary to the presen- 1 (expressing ‘‘the United States’ strong tation of their case. In the absence of a support for international agreements with more substantial showing of relevance or Austria involving Holocaust claims against necessity, the district court erred in rely- Austrian companies,’’ without mentioning ing on speculation about the Survivors’ any of Hungary’s laws to compensate vic- possible future litigation strategy as a tims); United States Br. 11 (United States ground for overriding their chosen forum. does not ‘‘have a working understanding of the mechanisms that have been or contin- b ue to be available in Hungary with respect [18] As relevant to this case, the pub- to such claims’’). lic-interest factors include: Beyond that, the district court erred in [T]he administrative difficulties flowing putting Hungary’s and the four American from court congestion; the ‘‘local interest citizens’ and other Survivors’ interests at in having localized controversies decided cross-purposes. Allowing these claims to at home’’; the interest in having the trial go forward and the evidence to be shown of a diversity case in a forum that is at in a United States court will in no way home with the law that must govern the impair Hungary’s ability to use that same action; [and] the avoidance of unneces- evidence to provide reparations and sary problems in conflict of laws, or in remediation to the Survivors of its own the application of foreign law[.] accord. 1188 911 FEDERAL REPORTER, 3d SERIES
The district court relied on Republic of bears noting that the already certified the Philippines v. Pimentel, 553 U.S. 851, class in Pimentel consisted primarily of 866, 128 S.Ct. 2180, 171 L.Ed.2d 131 Philippine nationals, including ‘‘[a]ll cur- (2008), for the proposition that United rent civilian citizens of the Republic of the States courts should respect a foreign sov- Philippines.’’ Hilao v. Estate of Marcos, ereign’s interest in addressing its own past 103 F.3d 767, 774 (9th Cir. 1996) (emphasis wrongs. Simon, 277 F.Supp.3d at 66. That added). By contrast, not one of the named mixes apples and oranges. At issue in Pi- Survivors in this case resides in or is a mentel was whether a suit that involved citizen of Hungary, and Hungary submit- the Republic’s assets and in which the ted no evidence to the district court identi- FSIA did not authorize jurisdiction could fying a single potential Hungarian class still proceed without including the Repub- member or even a Hungarian witness. lic as a party. Pimentel, 553 U.S. at 865, Hungary additionally argues that other 128 S.Ct. 2180. More specifically, the case cases have acknowledged a foreign sover- focused on whether, under Federal Rule of eign’s interest in resolving disputes inter- Civil Procedure 19(b), the Republic was an nally. But the cases that Hungary cites indispensable party whose absence would involved questions of personal jurisdiction bar the lawsuit from going forward. Id. at and the extraterritorial application of the 862, 128 S.Ct. 2180. All parties agreed that Alien Tort Statute, 28 U.S.C. § 1350. See the Republic was a necessary party, but Hungary Supp. Br. 8–9 (citing Kiobel v. they disagreed over whether the Rule Royal Dutch Petroleum, 569 U.S. 108, 133 19(b) factors permitted the action to pro- S.Ct. 1659, 185 L.Ed.2d 671 (2013), and ceed without it. Id. at 863–864, 128 S.Ct. Daimler AG v. Bauman, 571 U.S. 117, 134 2180. S.Ct. 746, 187 L.Ed.2d 624 (2014) ). Those The Supreme Court held that, when con- cases do not speak to whether a court sidering the intersection of joinder rules should, on forum non conveniens grounds, and sovereign immunity, ‘‘[a] case may not refuse to exercise jurisdiction that does proceed when a required-entity sovereign exist. Nor do they implicate the heavy is not amenable to suit.’’ 553 U.S. at 867, burden a defendant carries in overcoming 128 S.Ct. 2180. To hold otherwise, the a plaintiff’s choice of forum. Court added, would fail to ‘‘giv[e] full ef- The district court’s second legal error fect to sovereign immunity’’ and would of- was brushing off the United States’ own fend the very interests that gave rise to interests in the litigation. The district the foreign sovereign immunity doctrine court concluded that the Survivors’ claims and the FSIA in the first place. Id. at 866, have no connection to the United States. 128 S.Ct. 2180. Pimentel, in other words, Simon, 277 F.Supp.3d at 66. That is not enforces the immunity lines that the FSIA correct. For starters, there are four Unit- draws. ed States citizen plaintiffs in the suit. The That bears no resemblance to this case. United States has an obvious interest in This case does not involve necessary-party supporting their efforts to obtain justice in status under Rule 19; Hungary and MAVi a timely manner and, to that end, in ensur- are already parties; and the FSIA’s expro- ing that a United States forum is open to priation exception grants jurisdiction over those whose claims fall within the courts’ at least one (and perhaps both) of the lawful jurisdiction. Hungarian defendants. See Simon, 812 Beyond that, the United States govern- F.3d at 147; 28 U.S.C. § 1605(a)(3). It also ment has announced that it has a ‘‘moral SIMON v. REPUBLIC OF HUNGARY 1189 Cite as 911 F.3d 1172 (D.C. Cir. 2018)
imperative * * * to provide some measure Third, Hungary failed to show that the of justice to the victims of the Holocaust, choice-of-law factor favors its forum. The and to do so in their remaining lifetimes.’’ district court reasoned that ‘‘Hungarian United States Br. at 9–10. That interest is law would likely apply to the plaintiffs’ part of a larger United States policy to claims,’’ making a Hungarian forum a bet- support compensation for Holocaust vic- ter fit. Simon, 277 F.Supp.3d at 66. But tims, especially its own citizens. ‘‘The poli- neither party argues that current Hungari- cy of the United States Government with an law should apply. The Survivors assert regard to claims for restitution or compen- that international common law governs sation by Holocaust survivors and other their claims. Survivors’ Reply Br. 25. If so, victims of the Nazi era has consistently United States courts are every bit as adept been motivated by the twin concerns of at applying that law as a Hungarian forum justice and urgency.’’ United States State- would be. ment of Interest at 2. For the four citizen plaintiffs in this case, that interest is so Hungary argues that historical Hungari- compelling that Congress enacted it into an law from the time the property was law. See Justice for Uncompensated Sur- seized should govern the claims. Oral Ar- vivors Today Act of 2017, Pub. L. No. 115- gument Tr. 21:22–21:23. That cannot be 171, 132 Stat. 1288, 1289 (2018) (requiring right. Hungarian law at that time made the Secretary of State to compile a report the genocidal seizures lawful and deprived that evaluates other countries’ ‘‘progress Jews of all legal rights and status. See id. toward the resolution of claims for United 22:6–22:9. That is the same law that au- States citizen Holocaust survivors and thorized the deportation of Hungarian United States citizen family members of Jews to death camps. Consigning the Sur- Holocaust victims’’). vivors to that legal regime would be the The United States has also been actively plainest of errors. involved in obtaining justice for Nazi-era Finally, the United States has advised victims with countries that have shown themselves willing to provide such redress. this court that it has no specific foreign See United States Statement of Interest at policy or international comity concerns 2, 4–5 (The United States has ‘‘assist[ed] in that warrant dismissal of this case in favor several international settlements which of a Hungarian (or any other) forum. Unit- have provided approximately $8 billion dol- ed States Br. at 11 (‘‘[T]he United States lars for the benefit of victims of the Holo- does not express a view as to whether it caust’’; signed Executive Agreements with would be in the foreign policy interests of countries that had collaborated with the the United States for plaintiffs to have Nazis; and ‘‘committed to take certain sought or now seek compensation in Hun- steps to assist Austria and Austrian com- gary.’’). Quite the opposite, the United panies in achieving ‘legal peace’ in the States’ brief here emphasized its govern- United States with respect to Nazi-era mental interest in the timely resolution of forced and slave labor claims[.]’’). The the Survivors’ claims during their life- United States’ strong and longstanding in- times. Id. at 9–11. Likewise, its statement terest in ensuring the timely remediation of interest filed in the district court gave of the claims of Holocaust survivors, espe- no reason why this case should be dis- cially for its own citizens, carries impor- missed and sent to Hungary. See generally tant weight in the forum non conveniens United States Statement of Interest. That analysis. silence speaks volumes when contrasted 1190 911 FEDERAL REPORTER, 3d SERIES
with the federal government’s first un- fair judgment in further proceedings.’’ In prompted Statement of Interest in this re Kellogg, 756 F.3d at 763–764. case in which it strongly recommended * * * * * that the third defendant, a privately owned Austrian company, be dismissed because of Winston Churchill described the brutal Austria’s ongoing, collaborative efforts to genocidal expropriations, deportations, and provide reparations to victims of the Holo- mass extermination of Hungarian Jews at caust. See id. at 1. That defendant has Nazi death camps as ‘‘ ‘probably the great- since been dismissed from the case. Si- est and most horrible crime ever commit- mon, 277 F.Supp.3d at 47 n.1. ted in the history of the world.’ ’’ Simon, 812 F.3d at 132. The district court erred in At bottom, the relevant private and pub- declining to exercise statutorily conferred lic interests in this case, strengthened by jurisdiction over the Survivors’ effort to the United States government’s views, obtain some measure of reparation for point strongly in favor of the Survivors’ those injuries both by wrongly requiring forum choice. They certainly do not tilt them to adjudicate their claims in Hungary decisively in favor of the Hungarian forum. first, and by misapplying the law govern- While we accord respectful deference to ing the forum non conveniens analysis. district courts’ forum non conveniens de- We deny the Survivors’ request that the terminations, we do not rubber stamp case be reassigned, and remand for further them. Our task is to ensure that district proceedings consistent with this opinion. courts’ decisions hew to the burdens of proof and enforce the applicable legal pre- So ordered. sumptions. In this case and on this record, the nature and importance of the district KATSAS, Circuit Judge, dissenting: court’s legal and analytical errors render The district court concluded that this its judgment that Hungary met its weighty foreign-cubed case—involving wrongs com- burden of proof a clear abuse of discretion. mitted by Hungarians against Hungarians in Hungary—should be litigated in Hunga- C ry. In so doing, the court permissibly ap- [19, 20] Lastly, the Survivors request plied the settled law of forum non conve- that their case be assigned to a different niens. district court judge. ‘‘[W]e will reassign a Our standard of review is narrow. As case only in the exceedingly rare circum- the Supreme Court has instructed: ‘‘The stance that a district judge’s conduct is ‘so forum non conveniens determination is extreme as to display clear inability to committed to the sound discretion of the render fair judgment.’ ’’ In re Kellogg trial court. It may be reversed only when Brown & Root, Inc., 756 F.3d 754, 763 there has been a clear abuse of discretion; (D.C. Cir. 2014) (citation omitted); see also where the court has considered all relevant Cobell v. Kempthorne, 455 F.3d 317, 331 public and private interest factors, and (D.C. Cir. 2006) (‘‘[W]e exercise this au- where its balancing of these factors is rea- thority only in extraordinary cases.’’). That sonable, its decision deserves substantial standard has not remotely been met here. deference.’’ Piper Aircraft Co. v. Reyno, There is no evidence that the district court 454 U.S. 235, 257, 102 S.Ct. 252, 70 judge acted with anything but impartiality L.Ed.2d 419 (1981). Thus, a reviewing in this case, and ‘‘we have no reason to court may not ‘‘substitute[ ] its own judg- doubt that the District Court will render ment for that of the District Court.’’ Id. SIMON v. REPUBLIC OF HUNGARY 1191 Cite as 911 F.3d 1172 (D.C. Cir. 2018)
Under this narrow standard, reversal here that they seek to represent come ‘‘from all is unwarranted. over the globe,’’ whereas the defendants The district court correctly stated the are based entirely in Hungary. Id. at 63. relevant legal principles. First, it acknowl- This analysis is consistent with govern- edged ‘‘the ‘substantial presumption in fa- ing law. As the Supreme Court has ex- vor of a plaintiff’s choice of forum.’ ’’ Si- plained: ‘‘When the home forum has been mon v. Republic of Hungary (Simon III ), chosen, it is reasonable to assume that this 277 F.Supp.3d 42, 62 (D.D.C. 2017) (quot- choice is convenient,’’ but ‘‘[w]hen the ing Agudas Chasidei Chabad v. Russian plaintiff is foreign, TTT this assumption is Fed’n, 528 F.3d 934, 950 (D.C. Cir. 2008) ). much less reasonable.’’ Piper Aircraft, 454 Then, the court correctly stated the gov- U.S. at 255–56, 102 S.Ct. 252. And, in erning rule—‘‘a court ‘may nonetheless either case, the plaintiffs’ choice is signifi- dismiss a suit for forum non conveniens if cant only insofar as it bears on ‘‘the cen- the defendant shows (1) there is an alter- tral purpose of any forum non conveniens native forum that is both available and inquiry,’’ namely ‘‘to ensure that the trial adequate and, (2) upon a weighing of pub- is convenient.’’ Id. at 256, 102 S.Ct. 252. lic and private interests,’ that the alterna- Thus, the district court was amply justified tive forum is ‘the strongly preferred loca- in considering the residencies of all parties tion for the litigation.’ ’’ Id. (alterations as well as the disconnect between the adopted) (quoting MBI Grp., Inc. v. Credit plaintiffs’ chosen forum and the relevant Foncier du Cameroun, 616 F.3d 568, 571 facts—matters that bear directly on the (D.C. Cir. 2010) ). Finally, the court cor- convenience of litigating this case in a rectly identified nine relevant private- and United States court. public-interest factors to be considered. Id. My colleagues conclude that the district My colleagues highlight the district court gave insufficient weight to the court’s single usage of the phrase ‘‘minimal plaintiffs’ choice of forum, relieved the de- deference,’’ which they read as a threshold fendants of their burden of proof, and un- legal error of ‘‘set[ting] the scales wrong reasonably balanced the relevant factors. from the outset.’’ Ante at 1179, 1183. What Respectfully, I disagree. the court actually said, after flagging the various considerations noted above, was A that ‘‘[i]n these circumstances, the plain- The district court permissibly assessed tiffs’ choice of forum is entitled to minimal the weight owed to the plaintiffs’ choice of deference.’’ 277 F.Supp.3d at 63. In con- a United States forum. At the outset, the text, the statement reflects not a failure to court repeatedly recognized the ‘‘substan- recognize the presumption, but the court’s tial presumption’’ or ‘‘substantial defer- considered conclusion that the ‘‘defendants ence’’ generally due to such a choice. 277 had overcome the presumption’’ in this F.Supp.3d at 62, 63. Then, the court rea- case. Id. at 64 (quoting Moscovits v. Mag- soned that the degree of deference was yar Cukor Rt., 34 F. App’x 24, 26 (2d Cir. ‘‘lessened’’ in this case because only four of 2002) ). That was neither legal error nor an the fourteen named plaintiffs are United abuse of discretion. See, e.g., Iragorri v. States residents, because ‘‘none of the un- United Techs. Corp., 274 F.3d 65, 71 (2d derlying facts in this case relate to the Cir. 2001) (en banc) (‘‘the degree of defer- United States in any way,’’ and because ence given to a plaintiff’s forum choice the named plaintiffs and the putative class varies with the circumstances’’). 1192 911 FEDERAL REPORTER, 3d SERIES
My colleagues object that Hungary al is appropriate only if ‘‘the defendant made no detailed presentation regarding shows’’ that ‘‘there is an alternative forum the plaintiffs’ travel options. Ante at 1183. that is both available and adequate.’’ 277 But the Supreme Court has warned that F.Supp.3d at 62. The court did not improp- ‘‘[r]equiring extensive investigation would erly shift that burden. defeat the purpose’’ of the forum non con- My colleagues note that the district veniens motion. Piper Aircraft, 454 U.S. at court, in addressing whether Hungary was 258, 102 S.Ct. 252. The defendants were an adequate alternative forum, rested on not required to conduct travel surveys to its conclusion that pursuing claims in Hun- make the commonsense point that less def- gary would not be futile for purposes of erence is due to the plaintiffs’ choice when exhaustion. In the court’s own words, ‘‘the most plaintiffs would need to travel inter- finding that the plaintiffs’ pursuit of their nationally regardless of the forum. Nor claims in Hungary would not be futile sat- was evidence necessary to establish that isfies the first prong of the test for applica- all of the defendants are based, and all of tion of the forum non conveniens doctrine the relevant facts arose, in Hungary. On that Hungary is both an available and its face, the complaint makes that clear. adequate alternative forum.’’ 277 See J.A. 104–23. F.Supp.3d at 63. My colleagues also fault the district The district court’s statement made court for failing to consider whether any good sense in the context of its overall litigation delays in Hungary might prevent analysis. After all, in setting forth the gov- the plaintiffs from later re-filing in the erning principles on futility, the district United States. Ante at 1184. But the plain- court exclusively invoked the adequacy tiffs did not raise this argument either standards of forum non conveniens law. below or in their opening brief, so it is See 277 F.Supp.3d at 57–58. My colleagues twice forfeited. See, e.g., Am. Wildlands v. correctly note that exhaustion and forum Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. non conveniens law assign the opposite 2008). Nor did the plaintiffs ask the dis- burden of proof on the question of futility trict court, as a fallback remedy, to attach or adequacy. Ante at 1184–85. But here, conditions to any dismissal. And in any both sides presented detailed affidavits re- event, the whole point of forum non conve- garding Hungarian law and practice, so niens law is to dismiss cases that can more the burden of production did not matter. conveniently be adjudicated elsewhere, not Likewise, the district court assessed futili- to defer adjudications while plaintiffs ex- ty as a matter of law, based on undisputed haust claims or remedies in other fora. assertions in both affidavits, so the burden of persuasion did not matter. Nor did the B district court even conclude that the com- My colleagues next contend that the dis- peting legal arguments were at or near the trict court improperly required the plain- point of equipoise. In context, the district tiffs to prove that Hungary was not an court’s cross-reference to its analysis of available and adequate forum for their futility was an appropriate shorthand or, claims, rather than requiring the defen- at worst, an obviously harmless error. dants to prove that it was. Ante at 1184. The court’s analysis makes all of this But, in laying out the ‘‘applicable legal clear. Among other things, the court ex- principles’’ of forum non conveniens, the plained that the Hungarian constitution district court explicitly stated that dismiss- ‘‘requires that parties be treated fairly and SIMON v. REPUBLIC OF HUNGARY 1193 Cite as 911 F.3d 1172 (D.C. Cir. 2018)
equally in court, prohibits discrimination ments in the Hungarian Archives related on the basis of, among other things, race to property taken from Hungarian nation- or religion, and creates rights of appeal to als during World War II.’’ 277 F.Supp.3d various appellate courts.’’ 277 F.Supp.3d at at 64. The court also cited the plaintiffs’ 58. The court noted that Hungary recog- own complaint, which repeatedly refer- nizes and enforces international law and ences ‘‘vital’’ evidence ‘‘kept by the defen- provides damages for the types of proper- dants in Hungary.’’ Id. And the court cited ty losses alleged here. Id. And it stated declarations attesting that any pertinent that these and other considerations, as set documents were likely written in Hungari- forth by the defendants and their experts, an, which would require translation into ‘‘strongly support the conclusion that Hun- English if this case were heard in the gary is an adequate alternative forum for United States. Id. at 64–65. the plaintiffs’ claims.’’ Id. The court then My colleagues conclude that, ‘‘[a]t best, considered a ‘‘variety’’ of the plaintiffs’ the location-of-relevant-evidence factor is competing arguments and concluded that in equipoise,’’ because ‘‘some’’ records are ‘‘[n]one is persuasive.’’ Id. at 59–62. Apart in Hungary, while an ‘‘extensive’’ collec- from their mistaken argument about a tion is at the Holocaust Museum in Wash- misplaced burden of proof, neither the ington. Ante at 1186. But the defendants’ plaintiffs nor my colleagues challenge any evidence showed that the Hungarian Na- relevant particulars of this analysis. tional Archives ‘‘have a substantial amount My colleagues note that the United of documentation’’ regarding the Hungari- States declined to take a position on the an Holocaust, J.A. 184, and the plaintiffs’ availability and adequacy of a Hungarian own legal expert confirmed ‘‘an abundance forum. Ante at 1185. But the government’s of records of these confiscations in Hun- failure to address that question hardly garian archives,’’ J.A. 244. Moreover, suggests that the district court, in assess- while the plaintiffs’ expert noted that ing the detailed submissions made to it on ‘‘[c]opies’’ of the documents ‘‘may be that very point, committed legal error or found’’ at the Holocaust Museum, he did otherwise abused its discretion. not assert that the museum had somehow managed to compile records as complete C or more complete than those of the Hun- The district court reasonably balanced garian government. J.A. 244–45. Further- the private and public interests involved. more, the plaintiffs themselves have found On these points, my colleagues do not ar- no records relevant to their individual gue that the district court committed any cases in the museum, so there is no case- discrete legal error, but only that the court specific reason to discount the defendants’ abused its discretion in weighing the rele- overall submissions on this point. See Si- vant factors. mon v. Republic of Hungary, No. 10-cv- 1770 (D.D.C.), ECF Doc. 122 at 21 n.12. 1 Finally, the examples addressed by the With regard to private interests, the plaintiffs’ expert confirm that the perti- district court reasonably concluded that nent original records are in paper form much of the evidence in this case will and written in Hungarian. See id., ECF involve paper records written in Hungari- Doc. 122-1, Exs. 2–6. The district court an and located in Hungary. The court cited reasonably assessed the nature and loca- declarations noting ‘‘the extensive docu- tion of the documentary evidence. 1194 911 FEDERAL REPORTER, 3d SERIES
The court also reasonably found that the individual factors, it will be the rare there would be ‘‘many witnesses’’ in Hun- case when we can reverse a district court’s gary who could not or would not travel to balancing of the TTT factors’’ as itself an the United States. 277 F.Supp.3d at 65. abuse of discretion. Morley v. CIA, 894 The plaintiffs had ‘‘already sought to de- F.3d 389, 391 (D.C. Cir. 2018). pose at least one witness located in Hunga- ry who was unable to travel out of the 2 country,’’ id.—an alleged war criminal re- With regard to public interests, the dis- cently arrested in Budapest, J.A. 79. Given trict court reasonably concluded that Hun- the number and scope of the war crimes gary’s interest in resolving this controver- alleged in the complaint, and the need for sy was greater than that of the United each individual plaintiff to show that any States. The Supreme Court has long rec- taking of his or her property was done as ognized the ‘‘local interest in having local- part of a genocide, see Simon v. Republic ized controversies decided at home.’’ Gulf of Hungary (Simon II ), 812 F.3d 127, Oil Corp. v. Gilbert, 330 U.S. 501, 509, 67 143–46 (D.C. Cir. 2016), the district court S.Ct. 839, 91 L.Ed. 1055 (1947); see, e.g., reasonably treated this consideration as Piper Aircraft, 454 U.S. at 260, 102 S.Ct. significant. 252; MBI, 616 F.3d at 576. Moreover, this The district court also reasonably con- interest is heightened when the claims sidered the appropriateness of a Hungari- ‘‘arise from events of historical and politi- an forum in the event of further litigation cal significance’’ to the home forum. Re- against Rail Cargo Hungaria Zrt. The public of Philippines v. Pimentel, 553 U.S. plaintiffs had sued RCH in this case, but 851, 866, 128 S.Ct. 2180, 171 L.Ed.2d 131 RCH was dismissed for lack of personal (2008). This case is ‘‘localized’’ in Hungary; jurisdiction in the United States. See 277 it involves the taking of Hungarians’ prop- F.Supp.3d at 65. In contrast, RCH might erty by other Hungarians in Hungary. In be joined to any future litigation in Hunga- addition, claims arising out of the Hungari- ry, producing one case involving all of the an Holocaust are plainly a matter of his- original defendants, rather than parallel torical and political significance to Hunga- lawsuits across two continents. ry. Finally, the district court noted one im- My colleagues object that neither Pi- portant competing consideration—the mentel nor the extraterritoriality and per- ‘‘emotional burden’’ to the plaintiffs of re- sonal-jurisdiction decisions stressing the turning to Hungary. 277 F.Supp.3d at 65. importance of ‘‘a foreign sovereign’s inter- The court reasoned: ‘‘While acknowledging est in resolving disputes internally’’ were the profound nature of the emotional forum non conveniens cases. Ante at 1188. weight of bringing this case in Hungary, But the repeated acknowledgment of this the Court is hesitant to find that this interest—in many different contexts—only factor outweighs virtually every other fac- reinforces the district court’s conclusion. tor weighing in favor of dismissing under In any event, Gulf Oil and its forum non forum non conveniens.’’ Id. I can find no conveniens progeny, such as Piper Air- abuse of discretion in the court’s recogni- craft and MBI, amply support the district tion and balancing of the competing con- court’s judgment. siderations. For where ‘‘factors point in My colleagues counter that the United different directions, assuming no abuse of States has recognized a ‘‘moral imperative’’ discretion in the district court’s analysis of to provide compensation to Holocaust vic- BROWNING-FERRIS INDUSTRIES OF CALIFORNIA v. NLRB 1195 Cite as 911 F.3d 1195 (D.C. Cir. 2018) tims. Ante at 1188–89. True enough, but cause the court did not abuse its discretion the government seeks to further that in- by dismissing on forum non conveniens terest by encouraging parties ‘‘to resolve grounds, I would affirm its decision. matters of Holocaust-era restitution and compensation through dialogue, negotia- tion, and cooperation,’’ not by sweeping foreign-centered cases into United States , courts. U.S. Br. at 10. Moreover, consis- tent with Gulf Oil and its progeny, the United States reminds us that ‘‘a court should give less weight to U.S. interests where the activity at issue occurred in a BROWNING-FERRIS INDUSTRIES foreign country and involved harms to for- OF CALIFORNIA, INC., Doing Busi- eign nationals.’’ Id. at 16. Likewise, it re- ness as BFI Newby Island Recycling, minds us that ‘‘[a]pplication of the forum Petitioner non conveniens doctrine can assist in iden- v. tifying cases in which an alternative for- eign forum has a closer connection to the NATIONAL LABOR RELATIONS underlying parties and/or dispute.’’ Id. at BOARD, Respondent 26. These considerations strongly support the district court’s assessment of the pub- Teamsters Local 350, Intervenor lic-interest factors. No. 16-1028 Finally, the district court reasonably Consolidated with 16-1063 concluded that choice-of-law considerations 16-1064 favor a Hungarian forum. Of course, Hun- garian law is the obvious source of law to United States Court of Appeals, govern acts committed by Hungarians District of Columbia Circuit. against Hungarians in Hungary. My col- Argued March 9, 2017 leagues express concern that Hungarian law may have affirmatively authorized the Decided December 28, 2018 discrimination and genocide committed Background: Operator of recycling plant during the Holocaust. Ante at 1189. But petitioned for review of an order of the Hungarian law now outlaws both, 277 National Labor Relations Board (NLRB), F.Supp.3d at 58, and the defendants affir- 2015 WL 5047768, which determined that matively disavow any defense that genoci- operator, and staffing agency that supplied dal expropriations were lawful in the early workers, i.e., sorters to remove non-recycl- 1940s, Oral Arg. Tr. at 22–23, 38. In sum, able materials from stream lines, screen there is no bar to Hungarian law govern- cleaners to clear jams in sort lines, and ing the merits of this case, which will housekeepers to clean the areas around involve ‘‘garden-variety common-law sort lines, were joint employers for pur- causes of action such as conversion, unjust poses of local union’s petition to represent enrichment, and restitution.’’ Simon II, the workers as a bargaining unit under 812 F.3d at 141. National Labor Relations Act (NLRA). * * * * Board cross-applied for enforcement of the The district court correctly stated the order against operator and separately ap- governing law and reasonably weighed the plied for enforcement against staffing competing considerations in this case. Be- agency. INS v. CHADHA
Syllabus
IMMIGRATION AND NATURALIZATION SERVICE v. CHADHA ET AL.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 80-1832. Argued February 22, 1982-Reargued December 7, 1982- Decided June 23, 1983* Section 244(c)(2) of the Immigration and Nationality Act (Act) authorizes either House of Congress, by resolution, to invalidate the decision of the Executive Branch, pursuant to authority delegated by Congress to the Attorney General, to allow a particular deportable alien to remain in the United States. Appellee-respondent Chadha, an alien who had been lawfully admitted to the United States on a nonimnigrant student visa, remained in the United States after his visa had expired and was ordered by the Immigration and Naturalization Service (INS) to show cause why he should not be deported. He then applied for suspension of the de- portation, and, after a hearing, an Immigration Judge, acting pursuant to § 244(a)(1) of the Act, which authorizes the Attorney General, in his discretion, to suspend deportation, ordered the suspension, and reported the suspension to Congress as required by § 244(c)(1). Thereafter, the House of Representatives passed a resolution pursuant to § 244(c)(2) ve- toing the suspension, and the Immigration Judge reopened the deporta- tion proceedings. Chadha moved to terminate the proceedings on the ground that § 244(c)(2) is unconstitutional, but the judge held that he had no authority to rule on its constitutionality and ordered Chadha deported pursuant to the House Resolution. Chadha's appeal to the Board of Im- migration Appeals was dismissed, the Board also holding that it had no power to declare § 244(c)(2) unconstitutional. Chadha then filed a peti- tion for review of the deportation order in the Court of Appeals, and the INS joined him in arguing that § 244(c)(2) is unconstitutional. The Court of Appeals held that § 244(c)(2) violates the constitutional doctrine of separation of powers, and accordingly directed the Attorney General to cease taking any steps to deport Chadha based upon the House Resolution.
*Together with No. 80-2170, United States House of Representatives v. Immigration and Naturalization Service et al., and No. 80-2171, United States Senate v. Immigration and NaturalizationService et al., on certiorari to the same court. OCTOBER TERM, 1982
Syllabus 462 U. S.
Held: 1. This Court has jurisdiction to entertain the INS's appeal in No. 80-1832 under 28 U. S. C. § 1252, which provides that "[a]ny party" may appeal to the Supreme Court from a judgment of "any court of the United States" holding an Act of Congress unconstitutional in "any civil action, suit, or proceeding" to which the United States or any of its agen- cies is a party. A court of appeals is "a court of the United States" for purposes of § 1252, the proceeding below was a "civil action, suit, or pro- ceeding," the INS is an agency of the United States and was a party to the proceeding below, and the judgment below held an Act of Congress unconstitutional. Moreover, for purposes of deciding whether the INS was "any party" within the grant of appellate jurisdiction in § 1252, the INS was sufficiently aggrieved by the Court of Appeals' decision pro- hibiting it from taking action it would otherwise take. An agency's status as an aggrieved party under § 1252 is not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional. Pp. 929-931. 2. Section 244(c)(2) is severable from the remainder of § 244. Section 406 of the Act provides that if any particular provision of the Act is held invalid, the remainder of the Act shall not be affected. This gives rise to a presumption that Congress did not intend the validity of the Act as a whole, or any part thereof, to depend upon whether the veto clause of § 244(c)(2) was invalid. This presumption is supported by § 244's legisla- tive history. Moreover, a provision is further presumed severable if what remains after severance is fully operative as a law. Here, § 244 can survive as a "fully operative" and workable administrative mecha- nism without the one-House veto. Pp. 931-935. 3. Chadha has standing to challenge the constitutionality of § 244(c)(2) since he has demonstrated "injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed in- jury." Duke Power Co. v. CarolinaEnvironmental Study Group, Inc., 438 U. S.59, 79. Pp. 935-936. 4. The fact that Chadha may have other statutory relief available to him does not preclude him from challenging the constitutionality of § 244(c)(2), especially where the other avenues of relief are at most speculative. Pp. 936-937. 5. The Court of Appeals had jurisdiction under § 106(a) of the Act, which provides that a petition for review in a court of appeals "shall be the sole and exclusive procedure for the judicial review of all final orders of deportation... made against aliens within the United States pursu- ant to administrative proceedings" under § 242(b) of the Act. Section 106(a) includes all matters on which the final deportation order is contin- gent, rather than only those determinations made at the deportation INS v. CHADHA
919 Syllabus
hearing. Here, Chadha's deportation stands or falls on the validity of the challenged veto, the final deportation order having been entered only to implement that veto. Pp. 937-939. 6. A case or controversy is presented by these cases. From the time of the House's formal intervention, there was concrete adverseness, and prior to such intervention, there was adequate Art. III adverseness even though the only parties were the INS and Chadha. The INS's agreement with Chadha's position does not alter the fact that the INS would have deported him absent the Court of Appeals' judgment. Moreover, Congress is the proper party to defend the validity of a stat- ute when a Government agency, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is unconstitutional. Pp. 939-940. 7. These cases do not present a nonjusticiable political question on the asserted ground that Chadha is merely challenging Congress' authority under the Naturalization and Necessary and Proper Clauses of the Con- stitution. The presence of constitutional issues with significant political overtones does not automatically invoke the political question doctrine. Resolution of litigation challenging the constitutional authority of one of the three branches cannot be evaded by the courts simply because the issues have political implications. Pp. 940-943. 8. The congressional veto provision in § 244(c)(2) is unconstitutional. Pp. 944-959. (a) The prescription for legislative action in Art. I, § 1-requiring all legislative powers to be vested in a Congress consisting of a Senate and a House of Representatives-and § 7-requiring every bill passed by the House and Senate, before becoming law, to be presented to the Pres- ident, and, if he disapproves, to be repassed by two-thirds of the Senate and House-represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered procedure. This procedure is an integral part of the constitutional design for the separation of powers. Pp. 944-951. (b) Here, the action taken by the House pursuant to § 244(c)(2) was essentially legislative in purpose and effect and thus was subject to the procedural requirements of Art. I, § 7, for legislative action: passage by a majority of both Houses and presentation to the President. The one- House veto operated to overrule the Attorney General and mandate Chadha's deportation. The veto's legislative character is confirmed by the character of the congressional action it supplants; i. e., absent the veto provision of § 244(c)(2), neither the House nor the Senate, or both acting together, could effectively require the Attorney General to deport an alien once the Attorney General, in the exercise of legislatively OCTOBER TERM, 1982
Syllabus .462 U. S.
delegated authority, had determined that the alien should remain in the United States. Without the veto provision, this could have been achieved only by legislation requiring deportation. A veto by one House under § 244(c)(2) cannot be justified as an attempt at amending the standards set out in § 244(a)(1), or as a repeal of § 244 as applied to Chadha. The nature of the decision implemented by the one-House veto further manifests its legislative character. Congress must abide by its delegation of authority to the Attorney General until that delegation is legislatively altered or revoked. Finally, the veto's legislative charac- ter is confirmed by the fact that when the Framers intended to authorize either House of Congress to act alone and outside of its prescribed bi- cameral legislative role, they narrowly and precisely defined the proce- dure for such action in the Constitution. Pp. 951-959. 634 F. 2d 408, affied.
BURGER, C. J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKmuN, STEVENS, and O'CONNOR, JJ., joined. POWELL, J., filed an opinion concurring in the judgment, post, p. 959. WHITE, J., filed a dissenting opinion, post, p. 967. REHNQUIST, J., filed a dissenting opinion, in which WHITE, J., joined, post, p. 1013. Eugene Gressman reargued the cause for petitioner in No. 80-2170. With him on the briefs was Stanley M. Brand. Michael Davidson reargued the cause for petitioner in No. 80-2171. With him on the briefs were M. Elizabeth Culbreth and Charles Tiefer. Solicitor General Lee reargued the cause for the Immigra- tion and Naturalization Service in all cases. With him on the briefs were Assistant Attorney General Olson, Deputy Solic- itor General Geller, Deputy Assistant Attorney General Simms, Edwin S. Kneedler, David A. Strauss, and Thomas 0. Sargentich. Alan B. Morrison reargued the cause for Jagdish Rai Chadha in all cases. With him on the brief was John Cary Sims.t
tAntonin Scalia,Richard B. Smith, and David Ryrie Brink filed a brief for the American Bar Association as amicus curiae urging affirmance. Briefs of amici curiae were filed by Robert C. Eckhardt for Certain Members of the United States House of Representatives; and by Paul C. Rosenthal for the Counsel on Administrative Law of the Federal Bar Association. INS v. CHADHA
919 Opinion of the Court
CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted certiorari in Nos. 80-2170 and 80-2171, and postponed consideration of the question of jurisdiction in No. 80-1832. Each presents a challenge to the constitution- ality of the provision in §244(c)(2) of the Immigration and Nationality Act, 66 Stat. 216, as amended, 8 U. S. C. § 1254(c)(2), authorizing one House of Congress, by resolu- tion, to invalidate the decision of the Executive Branch, pur- suant to authority delegated by Congress to the Attorney General of the United States, to allow a particular deportable alien to remain in the United States. I Chadha is an East Indian who was born in Kenya and holds a British passport. He was lawfully admitted to the United States in 1966 on a nonimmigrant student visa. His visa expired on June 30, 1972. On October 11, 1973, the District Director of the Immigration and Naturalization Service or- dered Chadha to show cause why he should not be deported for having "remained in the United States for a longer time than permitted." App. 6. Pursuant to § 242(b) of the Immi- gration and Nationality Act (Act), 8 U. S. C. § 1252(b), a deportation hearing was held before an Immigration Judge on January 11, 1974. Chadha conceded that he was deport- able for overstaying his visa and the hearing was adjourned to enable him to file an application for suspension of depor- tation under § 244(a)(1) of the Act, 8 U. S. C. § 1254(a)(1). Section 244(a)(1), at the time in question, provided: "As hereinafter prescribed in this section, the Attor- ney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who applies to the Attorney General for suspension of depor- tation and- "(1) is deportable under any law of the United States except the provisions specified in paragraph (2) of this subsection; has been physically present in the United OCTOBER TERM, 1982
Opinion of the Court 462 U. S. States for a continuous period of not less than seven years immediately preceding the date of such applica- tion, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attor- ney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for perma- nent residence." ' After Chadha submitted his application for suspension of deportation, the deportation hearing was resumed on Febru- ary 7, 1974. On the basis of evidence adduced at the hear- ing, affidavits submitted with the application, and the results of a character investigation conducted by the INS, the Immi- gration Judge, on June 25, 1974, ordered that Chadha's de- portation be suspended. The Immigration Judge found that Chadha met the requirements of §244(a)(1): he had resided continuously in the United States for over seven years, was of good moral character, and would suffer "extreme hard- ship" if deported. Pursuant to § 244(c)(1) of the Act, 8 U. S. C. § 1254(c)(1), the Immigration Judge suspended Chadha's deportation and a report of the suspension was transmitted to Congress. Section 244(c)(1) provides: "Upon application by any alien who is found by the At- torney General to meet the requirements of subsection (a) of this section the Attorney General may in his discre- tion suspend deportation of such alien. If the deporta- tion of any alien is suspended under the provisions of this subsection, a complete and detailed statement of the
1Congress delegated the major responsibilities for enforcement of the Immigration and Nationality Act to the Attorney General. 8 U. S. C. § 1103(a). The Attorney General discharges his responsibilities through the Immigration and Naturalization Service, a division of the Department of Justice. Ibid. INS v. CHADHA
919 Opinion of the Court facts and pertinent provisions of law in the case shall be reported to the Congress with the reasons for such sus- pension. Such reports shall be submitted on the first day of each calendar month in which Congress is in session." Once the Attorney General's recommendation for suspen- sion of Chadha's deportation was conveyed to Congress, Con- gress had the power under § 244(c)(2) of the Act, 8 U. S. C. § 1254(c)(2), to vetoI the Attorney General's determination that Chadha should not be deported. Section 244(c)(2) provides: "(2) In the case of an alien specified in paragraph (1) of subsection (a) of this subsection- "if during the session of the Congress at which a case is reported, or prior to the close of the session of the Congress next following the session at which a case is reported, either the Senate or the House of Represent- atives passes a resolution stating in substance that it does not favor the suspension of such deportation, the Attorney General shall thereupon deport such alien or authorize the alien's voluntary departure at his own expense under the order of deportation in the manner provided by law. If, within the time above specified, neither the Senate nor the House of Representatives shall pass such a resolution, the Attorney General shall cancel deportation proceedings."
In constitutional terms, "veto" is used to describe the President's power under Art. I, § 7, of the Constitution. See Black's Law Dictionary 1403 (5th ed. 1979). It appears, however, that congressional devices of the type authorized by § 244(c)(2) have come to be commonly referred to as a "veto." See, e. g., Martin, The Legislative Veto and the Responsible Ex- ercise of Congressional Power, 68 Va. L. Rev. 253 (1982); Miller & Knapp, The Congressional Veto: Preserving the Constitutional Framework, 52 Ind. L. J. 367 (1977). We refer to the congressional "resolution" author- ized by § 244(c)(2) as a "one-House veto" of the Attorney General's decision to allow a particular deportable alien to remain in the United States. OCTOBER TERM, 1982
Opinion of the Court 462 U. S.
The June 25, 1974, order of the Immigration Judge sus- pending Chadha's deportation remained outstanding as a valid order for a year and a half. For reasons not disclosed by the record, Congress did not exercise the veto authority reserved to it under § 244(c)(2) until the first session of the 94th Congress. This was the final session in which Con- gress, pursuant to § 244(c)(2), could act to veto the Attorney General's determination that Chadha should not be deported. The session ended on December 19, 1975. 121 Cong. Rec. 42014, 42277 (1975). Absent congressional action, Chadha's deportation proceedings would have been canceled after this date and his status adjusted to that of a permanent resident alien. See 8 U. S. C. § 1254(d). On December 12, 1975, Representative Eilberg, Chairman of the Judiciary Subcommittee on Immigration, Citizenship, and International Law, introduced a resolution opposing "the granting of permanent residence in the United States to [six] aliens," including Chadha. H. Res. 926, 94th Cong., 1st Sess.; 121 Cong Rec. 40247 (1975). The resolution was re- ferred to the House Committee on the Judiciary. On De- cember 16, 1975, the resolution was discharged from further consideration by the House Committee on the Judiciary and submitted to the House of Representatives for a vote. 121 Cong. Rec. 40800. The resolution had not been printed and was not made available to other Members of the House prior to or at the time it was voted on. Ibid. So far as the record before us shows, the House consideration of the resolution was based on Representative Eilberg's statement from the floor that "[iut was the feeling of the committee, after reviewing 340 cases, that the aliens contained in the resolution [Chadha and five others] did not meet these statutory re- quirements, particularly as it relates to hardship; and it is the opinion of the committee that their deportation should not be suspended." Ibid. INS v. CHADHA
919 Opinion of the Court The resolution was passed without debate or recorded vote.3 Since the House action was pursuant to § 244(c)(2), the reso- lution was not treated as an Art. I legislative act; it was not
3It is not at all clear whether the House generally, or Subcommittee Chairman Eilberg in particular, correctly understood the relationship between H. Res. 926 and the Attorney General's decision to suspend- Chadha's deportation. Exactly one year previous to the House veto of the Attorney General's decision in this case, Representative Eilberg intro- duced a similar resolution disapproving the Attorney General's suspension of deportation in the case of six other aliens. H. Res. 1518, 93d Cong., 2d Sess. (1974). The following colloquy occurred on the floor of the House: "Mr. WYLIE. Mr. Speaker, further reserving the right to object, is this procedure to expedite the ongoing operations of the Department of Justice, as far as these people are concerned. Is it in any way contrary to what- ever action the Attorney General has taken on the question of deportation; does the gentleman know? "Mr. EILBERG. Mr. Speaker, the answer is no to the gentleman's final question. These aliens have been found to be deportable and the Special Inquiry Officer's decision denying suspension of deportation has been reversed by the Board of Immigration Appeals. We are complying with the law since all of these decisions have been referred to us for approval or disapproval, and there are hundreds of cases in this category. In these six cases however, we believe it would be grossly improper to allow these people to acquire the status of permanent resident aliens. "Mr. WYLIE. In other words, the gentleman has been working with the Attorney General's office? "Mr. EILBERG. Yes. "Mr. WYLIE. This bill then is in fact a confirmation of what the Attor- ney General intends to do? "Mr. EILBERG. The gentleman is correct insofar as it relates to the determination of deportability which has been made by the Department of Justice in each of these cases. "Mr. WYLIE. Mr. Speaker, I withdraw my reservation of objection." 120 Cong. Rec. 41412 (1974). Clearly, this was an obfuscation of the effect of a veto under § 244(c)(2). Such a veto in no way constitutes "a confirmation of what the Attorney General intends to do." To the contrary, such a resolution was meant to overrule and set aside, or "veto," the Attorney General's determination that, in a particular case, cancellation of deportation would be appropriate under the standards set forth in § 244(a)(1). OCTOBER TERM, 1982
Opinion of the Court 462 U. S. submitted to the Senate or presented to the President for his action. After the House veto of the Attorney General's decision to allow Chadha to remain in the United States, the Immigra- tion Judge reopened the deportation proceedings to imple- ment the House order deporting Chadha. Chadha moved to terminate the proceedings on the ground that § 244(c)(2) is unconstitutional. The Immigration Judge held that he had no authority to rule on the constitutional validity of § 244(c)(2). On November 8, 1976, Chadha was ordered de- ported pursuant to the House action. Chadha appealed the deportation order to the Board of Im- migration Appeals, again contending that §244(c)(2) is uncon- stitutional. The Board held that it had "no power to declare unconstitutional an act of Congress" and Chadha's appeal was dismissed. App. 55-56. Pursuant to § 106(a) of the Act, 8 U. S. C. § 1105a(a), Chadha ified a petition for review of the deportation order in the United States Court of Appeals for the Ninth Circuit. The Immigration and Naturalization Service agreed with Chadha's position before the Court of Appeals and joined him in arguing that § 244(c)(2) is unconstitutional. In light of the importance of the question, the Court of Appeals invited both the Senate and the House of Representatives to fie briefs amici curiae. After full briefing and oral argument, the Court of Appeals held that the House was without constitutional authority to order Chadha's deportation; accordingly it directed the At- torney General "to cease and desist from taking any steps to deport this alien based upon the resolution enacted by the House of Representatives." 634 F. 2d 408, 436 (1980). The essence of its holding was that § 244(c)(2) violates the con- stitutional doctrine of separation of powers. We granted certiorari in Nos. 80-2170 and 80-2171, and postponed consideration of our jurisdiction over the appeal in No. 80-1832, 454 U. S. 812 (1981), and we now affirm. INS v. CHADHA
919 Opinion of the Court II Before we address the important question of the constitu- tionality of the one-House veto provision of § 244(c)(2), we first consider several challenges to the authority of this Court to resolve the issue raised. A Appellate Jurisdiction Both Houses of Congress 4 contend that we are without jurisdiction under 28 U. S. C. § 1252 to entertain the INS appeal in No. 80-1832. Section 1252 provides: "Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam and the District Court of the Virgin Islands and any court of record of Puerto Rico, holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party." Parker v. Levy, 417 U. S. 733, 742, n. 10 (1974), makes clear that a court of appeals is a "court of the United States" for purposes of § 1252. It is likewise clear that the proceed- ing below was a "civil action, suit, or proceeding," that the INS is an agency of the United States and was a party to the proceeding below, and that that proceeding held an Act of Congress-namely, the one-House veto provision in § 244(c)(2)-unconstitutional. The express requisites for an appeal under § 1252, therefore, have been met.
4Nine Members of the House of Representatives disagree with the posi- tion taken in the briefs filed by the Senate and the House of Represent- atives and have filed a brief amici curiaeurging that the decision of the Court of Appeals be affirmed in this case. OCTOBER TERM, 1982
Opinion of the Court 462 U. S. In motions to dismiss the INS appeal, the congressional parties 5 direct attention, however, to our statement that "[a] party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it." Deposit GuarantyNational Bank v. Roper, 445 U. S. 326, 333 (1980). Here, the INS sought the invali- dation of § 244(c)(2), and the Court of Appeals granted that relief. Both Houses contend that the INS has already received what it sought from the Court of Appeals, is not an aggrieved party, and therefore cannot appeal from the deci- sion of the Court of Appeals. We cannot agree. The INS was ordered by one House of Congress to deport Chadha. As we have set out more fully, supra, at 928, the INS concluded that it had no power to rule on the constitu- tionality of that order and accordingly proceeded to imple- ment it. Chadha's appeal challenged that decision and the INS presented the Executive's views on the constitutionality of the House action to the Court of Appeals. But the INS brief to the Court of Appeals did not alter the agency's deci- sion to comply with the House action ordering deportation of Chadha. The Court of Appeals set aside the deportation proceedings and ordered the Attorney General to cease and desist from taking any steps to deport Chadha; steps that the Attorney General would have taken were it not for that decision. At least for purposes of deciding whether the INS is "any party" within the grant of appellate jurisdiction in § 1252, we hold that the INS was sufficiently aggrieved by the Court of Appeals decision prohibiting it from taking action it would otherwise take. It is apparent that Congress intended that
sThe Senate and House authorized intervention in this case, S. Res. 40 and H. R. Res. 49, 97th Cong., 1st Sess. (1981), and, on February 3, 1981, filed motions to intervene and petitioned for rehearing. The Court of Appeals granted the motions to intervene. Both Houses are therefore proper "parties" within the meaning of that term in 28 U. S. C. § 1254(1). See Batterton v. Francis, 432 U. S. 416, 424, n. 7 (1977). INS v. CHADHA
919 Opinion of the Court this Court take notice of cases that meet the technical prereq- uisites of § 1252; in other cases where an Act of Congress is held unconstitutional by a federal court, review in this Court is available only by writ of certiorari. When an agency of the United States is a party to a case in which the Act of Con- gress it administers is held unconstitutional, it is an ag- grieved party for purposes of taking an appeal under § 1252. The agency's status as an aggrieved party under § 1252 is not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional. The appeal in No. 80-1832 is therefore properly before us.6 B Severability Congress also contends that the provision for the one- House veto in § 244(c)(2) cannot be severed from § 244. Con- gress argues that if the provision for the one-House veto is held unconstitutional, all of § 244 must fall. If § 244 in its entirety is violative of the Constitution, it follows that the Attorney General has no authority to suspend Chadha's deportation under § 244(a)(1) and Chadha would be deported. From this, Congress argues that Chadha lacks standing to challenge the constitutionality of the one-House veto provi- sion because he could receive no relief even if his constitu- tional challenge proves successful. 7 Only recently this Court reaffirmed that the invalid por- tions of a statute are to be severed "'[u]nless it is evident that
'In addition to meeting the statutory requisites of § 1252, of course, an appeal must present a justiciable case or controversy under Art. III. Such a controversy clearly exists in No. 80-1832, as in the other two cases, because of the presence of the two Houses of Congress as adverse parties. See infra, at 939; see also Director, OWCP v. PeriniNorth River Asso- ciates, 459 U. S. 297, 302-305 (1982). 7In this case we deem it appropriate to address questions of severability first. But see Buckley v. Valeo, 424 U. S. 1, 108-109 (1976); United States v. Jackson, 390 U. S. 570, 585 (1968). OCTOBER TERM, 1982
Opinion of the Court 462 U. S. the Legislature would not have enacted those provisions which are within its power, independently of that which is not."' Buckley v. Valeo, 424 U. S. 1, 108 (1976), quoting Champlin Refining Co. v. Corporation Comm'n of Okla- homa, 286 U. S. 210, 234 (1932). Here, however, we need not embark on that elusive inquiry since Congress itself has provided the answer to the question of severability in § 406 of the Immigration and Nationality Act, note following 8 U. S. C. § 1101, which provides: "If any particular provision of this Act, or the applica- tion thereof to any person or circumstance, is held invalid, the remainderof the Act and the application of .such provision to other persons or circumstances shall not be affected thereby." (Emphasis added.) This language is unambiguous and gives rise to a presump- tion that Congress did not intend the validity of the Act as a whole, or of any part of the Act, to depend upon whether the veto clause of § 244(c)(2) was invalid. The one-House veto provision in § 244(c)(2) is clearly a "particular provision" of the Act as that language is used in the severability clause. Congress clearly intended "the remainder of the Act" to stand if "any particular provision" were held invalid. Con- gress could not have more plainly authorized the presumption that the provision for a one-House veto in § 244(c)(2) is sever- able from the remainder of § 244 and the Act of which it is a part. See ElectricBond & Share Co. v. SEC, 303 U. S.419, 434 (1938). The presumption as to the severability of the one-House veto provision in §244(c)(2) is supported by the legislative history of § 244. That section and its precursors supplanted the long-established pattern of dealing with deportations like Chadha's on a case-by-case basis through private bills. Al- though it may be that Congress was reluctant to delegate final authority over cancellation of deportations, such reluc- tance is not sufficient to overcome the presumption of sever- ability raised by § 406. INS v. CHADHA
919 Opinion of the Court The Immigration Act of 1924, ch. 190, § 14, 43 Stat. 162, required the Secretary of Labor to deport any alien who en- tered or remained in the United States unlawfully. The only means by which a deportable alien could lawfully remain in the United States was to have his status altered by a private bill enacted by both Houses and presented to the President pursuant to the procedures set out in Art. I, § 7, of the Con- stitution. These private bills were found intolerable by Con- gress. In the debate on a 1937 bill introduced by Represent- ative Dies to authorize the Secretary to grant permanent residence in "meritorious" cases, Dies stated: "It was my original thought that the way to handle all these meritorious cases was through special bills. I am absolutely convinced as a result of what has occurred in this House that it is impossible to deal with this situation through special bills. We had a demonstration of that fact not long ago when 15 special bills were before this House. The House consumed 52 hours considering four bills and made no disposition of any of the bills." 81 Cong. Rec. 5542 (1937). Representative Dies' bill passed the House, id., at 5574, but did not come to a vote in the Senate. 83 Cong. Rec. 8992-8996 (1938). Congress first authorized the Attorney General to suspend the deportation of certain aliens in the Alien Registration Act of 1940, ch. 439, § 20, 54 Stat. 671. That Act provided that an alien was to be deported, despite the Attorney General's decision to the contrary, if both Houses, by concurrent reso- lution, disapproved the suspension. In 1948, Congress amended the Act to broaden the cate- gory of aliens eligible for suspension of deportation. In addi- tion, however, Congress limited the authority of the Attor- ney General to suspend deportations by providing that the Attorney General could not cancel a deportation unless both Houses affirmatively voted by concurrent resolution to ap- prove the Attorney General's action. Act of July 1, 1948, OCTOBER TERM, 1982
Opinion of the Court 462 U. S. ch. 783, 62 Stat. 1206. The provision for approval by con- current resolution in the 1948 Act proved almost as burden- some as private bills. Just one year later, the House Judi- ciary Committee, in support of the predecessor to § 244(c)(2), stated in a Report: "In the light of experience of the last several months, the committee came to the conclusion that the require- ment of affirmative action by both Houses of the Con- gress in many thousands of individual cases which are submitted by the Attorney General every year, is not workable and places upon the Congress and particularly on the Committee on the Judiciary responsibilities which it cannot assume. The new responsibilities placed upon the Committee on the Judiciary [by the concurrent reso- lution mechanism] are of purely administrative nature and they seriously interfere with the legislative work of the Committee on the Judiciary and would, in time, in- terfere with the legislative work of the House." H. R. Rep. No. 362, 81st Cong., 1st Sess., 2 (1949). The proposal to permit one House of Congress to veto the Attorney General's suspension of an alien's deportation was incorporated in the Immigration and Nationality Act of 1952, Pub. L. 414, § 244(a), 66 Stat. 214. Plainly, Congress' desire to retain a veto in this area cannot be considered in isolation but must be viewed in the context of Congress' irritation with the burden of private immigration bills. This legislative his- tory is not sufficient to rebut the presumption of severability raised by § 406 because there is insufficient evidence that Congress would have continued to subject itself to the oner- ous burdens of private bills had it known that § 244(c)(2) would be held unconstitutional. A provision is further presumed severable if what remains after severance "is fully operative as a law." Champlin Re- fining Co. v. Corporation Comm'n, supra, at 234. There can be no doubt that § 244 is "fully operative" and workable administrative machinery without the veto provision in § 244(c)(2). Entirely independent of the one-House veto, the INS v. CHADHA
919 Opinion of the Court administrative process enacted by Congress authorizes the Attorney General to suspend an alien's deportation under §244(a). Congress' oversight of the exercise of this dele- gated authority is preserved since all such suspensions will continue to be reported to it under § 244(c)(1). Absent the passage of a bill to the contrary,8 deportation proceedings will be canceled when the period specified in § 244(c)(2) has ex- pired." Clearly, § 244 survives as a workable administrative mechanism without the one-House veto. C Standing We must also reject the contention that Chadha lacks standing because a consequence of his prevailing will advance
8Without the provision for one-House veto, Congress would presumably retain the power, during the time allotted in § 244(c)(2), to enact a law, in accordance with the requirements of Art. I of the Constitution, mandating a particular alien's deportation, unless, of course, other constitutional prin- ciples place substantive limitations on such action. Cf. Attorney General Jackson's attack on H. R. 9766, 76th Cong., 3d Sess. (1940), a bill to re- quire the Attorney General to deport an individual alien. The Attorney General called the bill "an historical departure from an unbroken American practice and tradition. It would be the first time that an act of Congress singled out a named individual for deportation." S. Rep. No. 2031, 76th Cong., 3d Sess., pt. 1, p. 9 (1940) (reprinting Jackson's letter of June 18, 1940). See n. 17, infra. 'Without the one-House veto, § 244 resembles the "report and wait" pro- vision approved by the Court in Sibbach v. Wilson & Co., 312 U. S. 1 (1941). The statute examined in Sibbach provided that the newly promul- gated Federal Rules of Civil Procedure "shall not take effect until they shall have been reported to Congress by the Attorney General at the be- ginning of a regular session thereof and until after the close of such ses- sion." Act of June 19, 1934, ch. 651, § 2, 48 Stat. 1064. This statute did not provide that Congress could unilaterally veto the Federal Rules. Rather, it gave Congress the opportunity to review the Rules before they became effective and to pass legislation barring their effectiveness if the Rules were found objectionable. This technique was used by Congress when it acted in 1973 to stay, and ultimately to revise, the proposed Rules of Evidence. Compare Act of Mar. 30, 1973, Pub. L. 93-12, 87 Stat. 9, with Act of Jan. 2, 1975, Pub. L. 93-595, 88 Stat. 1926. OCTOBER TERM, 1982
Opinion of the Court 462 U. S. the interests of 'the Executive Branch in a separation-of- powers dispute with Congress, rather than simply Chadha's private interests. Chadha has demonstrated "injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury . . ." Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 79 (1978). If the veto provision violates the Constitution, and is severable, the deportation order against Chadha will be canceled. Chadha therefore has standing to challenge the order of the Executive mandated by the House veto. D Alternative Relief It is contended that the Court should decline to decide the constitutional question presented by these cases because Chadha may have other statutory relief available to him. It is argued that since Chadha married a United States citizen on August 10, 1980, it is possible that other avenues of relief may be open under §§201(b), 204, and 245 of the Act, 8 U. S. C. §§ 1151(b), 1154, and 1255. It is true that Chadha may be eligible for classification as an "immediate relative" and, as such, could lawfully be accorded permanent resi- dence. Moreover, in March 1980, just prior to the decision of the Court of Appeals in these cases, Congress enacted the Refugee Act of 1980, Pub. L. 96-212, 94 Stat. 102, under which the Attorney General is authorized to grant asylum, and then permanent residence, to any alien who is unable to return to his country of nationality because of "a well- founded fear of persecution on account of race." It is urged that these two intervening factors constitute a prudential bar to our consideration of the constitutional ques- tion presented in these cases. See Ashwander v. TVA, 297 U. S.288, 346 (1936) (Brandeis, J., concurring). If we could perceive merit in this contention we might well seek to avoid deciding the constitutional claim advanced. But at most INS v. CHADHA
919 Opinion of the Court these other avenues of relief are speculative. It is by no means certain, for example, that Chadha's classification as an immediate relative would result in the adjustment of Chadha's status from nonimmigrant to permanent resident. See Menezes v. INS, 601 F. 2d 1028 (CA9 1979). If Chadha is successful in his present challenge he will not be deported and will automatically become eligible to apply for citi- zenship. 10 A person threatened with deportation cannot be denied the right to challenge the constitutional validity of the process which led to his status merely on the basis of speculation over the availability of other forms of relief. E Jurisdiction It is contended that the Court of Appeals lacked jurisdic- tion under § 106(a) of the Act, 8 U. S. C. § 1105a(a). That section provides that a petition for review in the Court of Appeals "shall be the sole and exclusive procedure for the judicial review of all final orders of deportation ... made against aliens within the United States pursuant to admin- istrative proceedings under section 242(b) of this Act." Congress argues that the one-House veto authorized by § 244(c)(2) takes place outside the administrative proceedings conducted under §242(b), and that the jurisdictional grant contained in § 106(a) does not encompass Chadha's constitu- tional challenge. In Cheng Fan Kwok v. INS, 392 U. S. 206, 216 (1968), this Court held that "§ 106(a) embrace[s] only those determi- 'Depending on how the INS interprets its statutory duty under §244 apart from the challenged portion of § 244(c)(2), Chadha's status may be retroactively adjusted to that of a permanent resident as of December 19, 1975--the last session in which Congress could have attempted to stop the suspension of Chadha's deportation from ripening into cancellation of deportation. See 8 U. S. C. § 1254(d). In that event, Chadha's 5-year waiting period to become a citizen under § 316(a) of the Act, 8 U. S. C. § 1427(a), would have elapsed. OCTOBER TERM, 1982
Opinion of the Court 462 U. S. nations made during a proceeding conducted under § 242(b), including those determinations made incident to a motion to reopen such proceedings." It is true that one court has read Cheng Fan Kwok to preclude appeals similar to Chadha's. See Dastmalchi v. INS, 660 F. 2d 880 (CA3 1981).11 How- ever, we agree with the Court of Appeals in these cases that the term "final orders" in § 106(a) "includes all matters on which the validity of the final order is contingent, rather than only those determinations actually made at the hearing." 634 F. 2d, at 412. Here, Chadha's deportation stands or falls on the validity of the challenged veto; the final order of deportation was entered against Chadha only to implement the action of the House of Representatives. Although the Attorney General was satisfied that the House action was invalid and that it should not have any effect on his decision to suspend deportation, he appropriately let the controversy take its course through the courts. This Court's decision in Cheng Fan Kwok, supra, does not bar Chadha's appeal. There, after an order of deportation had been entered, the affected alien requested the INS to stay the execution of that order. When that request was de- nied, the alien sought review in the Court of Appeals under § 106(a). This Court's holding that the Court of Appeals lacked jurisdiction was based on the fact that the alien "did not 'attack the deportation order itself but instead [sought] relief not inconsistent with it."' 392 U. S., at 213, quoting
11Under the Third Circuit's reasoning, judicial review under § 106(a) would not extend to the constitutionality of § 244(c)(2) because that issue could not have been tested during the administrative deportation proceed- ings conducted under § 242(b). The facts in Dastmalchi are distinguish- able, however. In Dastmalchi,Iranian aliens who had entered the United States on nonimmigrant student visas challenged a regulation that re- quired them to report to the District Director of the INS during the Ira- nian hostage crisis. The aliens reported and were ordered deported after a § 242(b) proceeding. The aliens in Dastmalchicould have been deported irrespective of the challenged regulation. Here, in contrast, Chadha's de- portation would have been canceled but for § 244(c)(2). INS v. CHADHA
919 Opinion of the Court Mui v. Esperdy, 371 F. 2d 772, 777 (CA2 1966). Here, in contrast, Chadha directly attacks the deportation order it- self, and the relief he seeks--cancellation of deportation-is plainly inconsistent with the deportation order. Accord- ingly, the Court of Appeals had jurisdiction under § 106(a) to decide these cases. F Case or Controversy It is also contended that this is not a genuine controversy but "a friendly, non-adversary, proceeding," Ashwander v. TVA, 297 U. S., at 346 (Brandeis, J., concurring), upon which the Court should not pass. This argument rests on the fact that Chadha and the INS take the same position on the constitutionality of the one-House veto. But it would be a curious result if, in the administration of justice, a person could be denied access to the courts because the Attorney General of the United States agreed with the legal argu- ments asserted by the individual. A case or controversy is presented by these cases. First, from the time of Congress' formal intervention, see n. 5, supra, the concrete adverseness is beyond doubt. Con- gress is both a proper party to defend the constitutional- ity of §244(c)(2) and a proper petitioner under 28 U. S. C. § 1254(1). Second, prior to Congress' intervention, there was adequate Art. III adverseness even though the only par- ties were the INS and Chadha. We have already held that the INS's agreement with the Court of Appeals' decision that § 244(c)(2) is unconstitutional does not affect that agency's "aggrieved" status for purposes of appealing that decision under 28 U. S. C. § 1252, see supra,at 929-931. For similar reasons, the INS's agreement with Chadha's position does not alter the fact that the INS would have deported Chadha absent the Court of Appeals' judgment. We agree with the Court of Appeals that "Chadha has asserted a concrete con- troversy, and our decision will have real meaning: if we rule for Chadha, he will not be deported; if we uphold § 244(c)(2), OCTOBER TERM, 1982
Opinion of the Court 462 U. S. the INS will execute its order and deport him." 634 F. 2d, at 419.2 Of course, there may be prudential, as opposed to Art. III, concerns about sanctioning the adjudication of these cases in the absence of any participant supporting the validity of § 244(c)(2). The Court of Appeals properly dispelled any such concerns by inviting and accepting briefs from both Houses of Congress. We have long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inappli- cable or unconstitutional. See Cheng Fan Kwok v. INS, 392 U. S., at 210, n. 9; United States v. Lovett, 328 U. S. 303 (1946). G Political Question It is also argued that these cases present a nonjusti- ciable political question because Chadha is merely challeng- ing Congress' authority under the Naturalization Clause, U. S. Const., Art. I, §8, cl. 4, and the Necessary and Proper Clause, U. S. Const., Art. I, § 8, cl. 18. It is argued that Congress' Art. I power "To establish an uniform Rule of Naturalization," combined with the Necessary and Proper Clause, grants it unreviewable authority over the regulation of aliens. The plenary authority of Congress over aliens under Art. I, § 8, cl. 4, is not open to question, but what is
"A relevant parallel can be found in our recent decision in Bob Jones University v. United States, 461 U. S. 574 (1983). There, the United States agreed with Bob Jones University and Goldsboro Christian Schools that certain Revenue Rulings denying tax-exempt status to schools that discriminated on the basis of race were invalid. Despite its agreement with the schools, however, the United States was complying with a court order enjoining it from granting tax-exempt status to any school that dis- criminated on the basis of race. Even though the Government largely agreed with the opposing party on the merits of the controversy, we found an adequate basis for jurisdiction in the fact that the Government intended to enforce the challenged law against that party. See id., at 585, n. 9. INS v. CHADHA
919 Opinion of the Court challenged here is whether Congress has chosen a constitu- tionally permissible means of implementing that power. As we made clear in Buckley v. Valeo, 424 U. S. 1 (1976): "Con- gress has plenary authority in all cases in which it has sub- stantive legislative jurisdiction, McCulloch v. Maryland, 4 Wheat. 316 (1819), so long as the exercise of that authority does not offend some other constitutional restriction." Id., at 132. A brief review of those factors which may indicate the presence of a nonjusticiable political question satisfies us that our assertion of jurisdiction over these cases does no violence to the political question doctrine. As identified in Baker v. Carr, 369 U. S. 186, 217 (1962), a political question may arise when any one of the following circumstances is present: "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonju- dicial discretion; or the impossibility of a court's under- taking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrass- ment from multifarious pronouncements by various de- partments on one question." Congress apparently directs its assertion of nonjusticiabil- ity to the first of the Baker factors by asserting that Chadha's claim is "an assault on the legislative authority to enact Sec- tion 244(c)(2)." Brief for Petitioner in No. 80-2170, p. 48. But if this turns the question into a political question virtu- ally every challenge to the constitutionality of a statute would be a political question. Chadha indeed argues that one House of Congress cannot constitutionally veto the At- torney General's decision to allow him to remain in this coun- try. No policy underlying the political question doctrine OCTOBER-TERM, 1982
Opinion of the Court 462 U. S. suggests that Congress or the Executive, or both acting in concert and in compliance with Art. I, can decide the con- stitutionality of a statute; that is a decision for the courts. 3 Other Baker factors are likewise inapplicable to this case. As we discuss more fully below, Art. I provides the "judi- cially discoverable and manageable standards" of Baker for resolving the question presented by these cases. Those standards forestall reliance by this Court on nonjudicial "pol- icy determinations" or any showing of disrespect for a coordi- nate branch. Similarly, if Chadha's arguments are accepted, §244(c)(2) cannot stand, and, since the constitutionality of that statute is for this Court to resolve, there is no possibility of "multifarious pronouncements" on this question. It is correct that this controversy may, in a sense, be termed "political." But the presence of constitutional issues with significant political overtones does not automatically in-
"The suggestion is made that § 244(c)(2) is somehow immunized from constitutional scrutiny because the Act containing § 244(c)(2) was passed by Congress and approved by the President. Marbury v. Madison, 1 Cranch 137 (1803), resolved that question. The assent of the Executive to a bill which contains a provision contrary to the Constitution does not shield it from judicial review. See Smith v. Maryland, 442 U. S. 735, 740, n. 5 (1979); National League of Cities v. Usery, 426 U. S. 833, 841, n. 12 (1976); Buckley v. Valeo, 424 U. S. 1 (1976); Myers v. United States, 272 U. S. 52 (1926). See also n. 22, infra. In any event, 11 Presidents, from Mr. Wilson through Mr. Reagan, who have been presented with this issue have gone on record at some point to challenge congressional vetoes as unconstitutional. See Henry, The Legislative Veto: In Search of Con- stitutional Limits, 16 Harv. J. Legis. 735, 737-738, n. 7 (1979) (collecting citations to Presidential statements). Perhaps the earliest Executive expression on the constitutionality of the congressional veto is found in At- torney General William D. Mitchell's opinion of January 24, 1933, to Presi- dent Hoover. 37 Op. Atty. Gen. 56. Furthermore, it is not uncommon for Presidents to approve legislation containing parts which are objection- able on constitutional grounds. For example, after President Roosevelt signed the Lend-Lease Act of 1941, Attorney General Jackson released a memorandum explaining the President's view that the provision allowing the Act's authorization to be terminated by concurrent resolution was un- constitutional. Jackson, A Presidential Legal Opinion, 66 Harv. L. Rev. 1353 (1953). INS v. CHADHA
919 Opinion of the Court yoke the political question doctrine. Resolution of litigation challenging the constitutional authority of one of the three branches cannot be evaded by courts because the issues have political implications in the sense urged by Congress. Mar- bury v. Madison, 1 Cranch 137 (1803), was also a "political" case, involving as it did claims under a judicial commission alleged to have been duly signed by the President but not delivered. But "courts cannot reject as 'no law suit' a bona fide controversy as to whether some action denominated 'political' exceeds constitutional authority." Baker v. Carr, supra, at 217. In Field v. Clark, 143 U. S. 649 (1892), this Court ad- dressed and resolved the question whether "a bill signed by the Speaker of the House of Represent- atives and by the President of the Senate, presented to and approved by the President of the United States, and delivered by the latter to the Secretary of State, as an act passed by Congress, does not become a law of the United States if it had not in fact been passed by Congress.... ".... We recognize, on one hand, the duty of this court, from the performance of which it may not shrink, to give full effect to the provisions of the Constitution relating to the enactment of laws that are to operate wherever the authority and jurisdiction of the United States extend. On the other hand, we cannot be unmindful of the conse- quences that must result if this court should feel obliged, in fidelity to the Constitution, to declare that an enrolled bill, on which depend public and private interests of vast magnitude, and which has been ... deposited in the public archives, as an act of Congress, ... did not become a law." Id., at 669-670 (emphasis in original). H The contentions on standing and justiciability have been fully examined, and we are satisfied the parties are properly before us. The important issues have been fully briefed and OCTOBER TERM, 1982
Opinion of the Court 462 U. S. twice argued, see 458 U. S. 1120 (1982). The Court's duty in these cases, as Chief Justice Marshall declared in Cohens v. Virginia, 6 Wheat. 264, 404 (1821), is clear: "Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty." III A We turn now to the question whether action of one House of Congress under § 244(c)(2) violates strictures of the Con- stitution. We begin, of course, with the presumption that the challenged statute is valid. Its wisdom is not the con- cern of the courts; if a challenged action does not violate the Constitution, it must be sustained: "Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not sit as a committee of review, nor are we vested with the power of veto." TVA v. Hill, 437 U. S. 153, 194-195 (1978). By the same token, the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives-or the hallmarks-of democratic govern- ment and our inquiry is sharpened rather than blunted by the fact that congressional veto provisions are appearing with in- creasing frequency in statutes which delegate authority to executive and independent agencies: "Since 1932, when the first veto provision was enacted into law, 295 congressional veto-type procedures have been inserted in 196 different statutes as follows: from 1932 to 1939, five statutes were affected; from 1940-49, nineteen statutes; between 1950-59, thirty-four statutes; and from 1960-69, forty-nine. From the year 1970 through 1975, at least one hundred sixty-three such pro- INS. v. CHADHA
919 Opinion of the Court visions were included in eighty-nine laws." Abourezk, The Congressional Veto: A Contemporary Response to Executive Encroachment on Legislative Prerogatives, 52 Ind. L. Rev. 323, 324 (1977). See also Appendix to JUSTICE WHITE's dissent, post, at 1003. JUSTICE WHITE undertakes to make a case for the proposi-. tion that the one-House veto is a useful "political invention," post, at 972, and we need not challenge that assertion. We can even concede this utilitarian argument although the long- range political wisdom of this "invention" is arguable. It has been vigorously debated, and it is instructive to compare the views of the protagonists. See, e. g., Javits & Klein, Con- gressional Oversight and the Legislative Veto: A Constitu- tional Analysis, 52 N. Y. U. L. Rev. 455 (1977), and Martin, The Legislative Veto and the Responsible Exercise of Con- gressional Power, 68 Va. L. Rev. 253 (1982). But policy arguments supporting even useful "political inventions" are subject to the demands of the Constitution which defines powers and, with respect to this subject, sets out just how those powers are to be exercised. Explicit and unambiguous provisions of the Constitution prescribe and define the respective functions of the Congress and of the Executive in the legislative process. Since the precise terms of those familiar provisions are critical to the resolution of these cases, we set them out verbatim. Article I provides: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Art. I, § 1. (Emphasis added.) "Every Bill which shall have passed the House of Rep- resentatives and the Senate, shall, before it becomes a law, be presented to the President of the United States .... " Art. I, § 7, cl. 2. (Emphasis added.) "Every Order, Resolution, or Vote to which the Con- currence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) OCTOBER TERM, 1982
Opinion of the Court 462 U. S. shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Repre- sentatives, according to the Rules and Limitations prescribed in the Case of a Bill." Art. I, §7, cl. 3. (Emphasis added.) These provisions of Art. I are integral parts of the con- stitutional design for the separation of powers. We have re- cently noted that "[t]he principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the document that they drafted in Philadelphia in the summer of 1787." Buckley v. Valeo, 424 U. S., at 124. Just as we relied on the textual provision of Art. II, § 2, cl. 2, to vindicate the principle of separation of powers in Buckley, we see that the purposes underlying the Presentment Clauses, Art. I, § 7, cls. 2, 3, and the bicameral requirement of Art. I, § 1, and § 7, cl. 2, guide our resolu- tion of the important question presented in these cases. The very structure of the Articles delegating and separating powers under Arts. I, II, and III exemplifies the concept of separation of powers, and we now turn to Art. I. B The Presentment Clauses The records of the Constitutional Convention reveal that the requirement that all legislation be presented to the Presi- dent before becoming law was uniformly accepted by the Framers."' Presentment to the President and the Presiden-
"The widespread approval of the delegates was commented on by Joseph Story: "In the convention there does not seem to have been much diversity of opinion on the subject of the propriety of giving to the president a negative on the laws. The principal points of discussion seem to have been, whether the negative should be absolute, or qualified; and if the latter, by what number of each house the bill should subsequently be passed, in order to become a law; and whether the negative should in either case be exclu- INS v. CHADHA
919 Opinion of the Court tial veto were considered so imperative that the draftsmen took special pains to assure that these requirements could not be circumvented. During the final debate on Art. I, § 7, el. 2, James Madison expressed concern that it might easily be evaded by the simple expedient of calling a proposed law a "resolution!' or "vote" rather than a "bill." 2 Farrand 301-302. As a consequence, Art. I, § 7, cl. 3, supra, at 945- 946, was added. 2 Farrand 304-305. The decision to provide the President with a limited and qualified power to nullify proposed legislation by veto was based on the profound conviction of the Framers that the powers conferred on Congress were the powers to be most carefully circumscribed. It is beyond doubt that lawmaking was a power to be shared by both Houses and the President. In The Federalist No. 73 (H. Lodge ed. 1888), Hamilton focused on the President's role in making laws: "If even no propensity had ever discovered itself in the legislative body to invade the rights of the Executive, the rules of just reasoning and theoretic propriety would of themselves teach us that the one ought not to be left to the mercy of the other, but ought to possess a con- stitutional and effectual power of self-defence." Id., at 458. See also The Federalist No. 51. In his Commentaries on the Constitution, Joseph Story makes the same point. 1 J. Story, Commentaries on the Constitution of the United States 614-615 (3d ed. 1858). The President's role in the lawmaking process also reflects the Framers' careful efforts to check whatever propensity a particular Congress might have to enact oppressive, improvi- sively vested in the president alone, or in him jointly with some other de- partment of the government." 1 J. Story, Commentaries on the Constitu- tion of the United States 611 (3d ed. 1858). See 1 M. Farrand, The Records of the Federal Convention of 1787, pp. 21, 97-104, 138-140 (1911) (hereinafter Farrand); id., at 73-80, 181, 298, 301-305. OCTOBER TERM, 1982
Opinion of the Court 462 U. S. dent, or ill-considered measures. The President's veto role in the legislative process was described later during public debate on ratification: "It establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse un- friendly to the public good, which may happen to influ- ence a majority of that body. "... The primary inducement to conferring the power in question upon the Executive is, to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design." The Federalist No. 73, supra, at 458 (A. Hamilton). See also The Pocket Veto Case, 279 U. S. 655, 678 (1929); Myers v. United States, 272 U. S. 52, 123 (1926). The Court also has observed that the Presentment Clauses serve the important purpose of assuring that a "national" perspective is grafted on the legislative process: "The President is a representative of the people just as the members of the Senate and of the House are, and it may be, at some times, on some subjects, that the Presi- dent elected by all the people is rather more represent- ative of them all than are the members of either body of the Legislature whose constituencies are local and not countrywide ... ." Myers v. United States, supra, at 123. C Bicameralism The bicameral requirement of Art. I, §§ 1, 7, was of scarcely less concern to the Framers than was the Presiden- tial veto and indeed the two concepts are interdependent. By providing that no law could take effect without the con- currence of the prescribed majority of the Members of both Houses, the Framers reemphasized their belief, already re- INS v. CHADHA
919 Opinion of the Court marked upon in connection with the Presentment Clauses, that legislation should not be enacted unless it has been care- fully and fully considered by the Nation's elected officials. In the Constitutional Convention debates on the need for a bicameral legislature, James Wilson, later to become a Justice of this Court, commented: "Despotism comes on mankind in different shapes. sometimes in an Executive, sometimes in a military, one. Is there danger of a Legislative despotism? Theory & practice both proclaim it. If the Legislative authority be not restrained, there can be neither liberty nor stability; and it can only be restrained by dividing it within itself, into distinct and independent branches. In a single house there is no check, but the inadequate one, of the virtue & good sense of those who compose it." 1 Farrand 254. Hamilton argued that a Congress comprised of a single House was antithetical to the very purposes of the Constitu- tion. Were the Nation to adopt a Constitution providing for only one legislative organ, he warned: "[W]e shall finally accumulate, in a single body, all the most important prerogatives of sovereignty, and thus entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived. Thus we should create in reality that very tyranny which the adversaries of the new Constitution either are, or af- fect to be, solicitous to avert." The Federalist No. 22, p. 135 (H. Lodge ed. 1888). This view was rooted in a general skepticism regarding the fallibility of human nature later commented on by Joseph Story: "Public bodies, like private persons, are occasionally under the dominion of strong passions and excitements; impatient, irritable, and impetuous.... If [a legislature] OCTOBER TERM, 1982
Opinion of the Court 462 U. S. feels no check but its own will, it rarely has the firmness to insist upon holding a question long enough under its own view, to see and mark it in all its bearings and rela- tions on society." 1 Story, supra, at 383-384. These observations are consistent with what many of the Framers expressed, none more cogently than Madison in pointing up the need to divide and disperse power in order to protect liberty: "In republican government, the legislative authority nec- essarily predominates. The remedy for this inconve- niency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit." The Federalist No. 51, p. 324 (H. Lodge ed. 1888) (some- times attributed to "Hamilton or Madison" but now gen- erally attributed to Madison). See also The Federalist No. 62. However familiar, it is useful to recall that apart from their fear that special interests could be favored at the expense of public needs, the Framers were also concerned, although not of one mind, over the apprehensions of the smaller states. Those states feared a commonality of interest among the larger states would work to their disadvantage; represent- atives of the larger states, on the other hand, were skeptical of a legislature that could pass laws favoring a minority of the people. See 1 Farrand 176-177, 484-491. It need hardly be repeated here that the Great Compromise, under which one House was viewed as representing the people and the other the states, allayed the fears of both the large and small states. 15
"The Great Compromise was considered so important by the Framers that they inserted a special provision to ensure that it could not be altered, even by constitutional amendment, except with the consent of the states affected. See U. S. Const., Art V. INS v. CHADHA
919 Opinion of the Court We see therefore that the Framers were acutely conscious that the bicameral requirement and the Presentment Clauses would serve essential constitutional functions. The Presi- dent's participation in the legislative process was to protect the Executive Branch from Congress and to protect the whole people from improvident laws. The division of the Congress into two distinctive bodies assures that the legisla- tive power would be exercised only after opportunity for full study and debate in separate settings. The President's uni- lateral veto power, in turn, was limited by the power of two- thirds of both Houses of Congress to overrule a veto thereby precluding final arbitrary action of one person. See id., at 99-104. It emerges clearly that the prescription for legisla- tive action in Art. I, §§ 1, 7, represents the Framers' decision that the legislative power of the Federal Government be ex- ercised in accord with a single, finely wrought and exhaus- tively considered, procedure.
IV The Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility. The hydraulic pressure inher- ent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted. Although not "hermetically" sealed from one another, Buckley v. Valeo, 424 U. S., at 121, the powers delegated to the three Branches are functionally identifiable. When any Branch acts, it is presumptively exercising the power the Constitution has delegated to it. See J. W. Hampton & Co. v. United States, 276 U. S. 394, 406 (1928). When the Exec- utive acts, he presumptively acts in an executive or adminis- trative capacity as defined in Art. II. And when, as here, OCTOBER TERM, 1982
Opinion of the Court 462 U. S. one House of Congress purports to act, it is presumptively acting within its assigned sphere. Beginning with this presumption, we must nevertheless establish that the challenged action under § 244(c)(2) is of the kind to which the procedural requirements of Art. I, § 7, apply. Not every action taken by either House is subject to the bicameralism and presentment requirements of Art. I. See infra, at 955, and nn. 20, 21. Whether actions taken by either House are, in law and fact, an exercise of legislative power depends not on their form but upon "whether they contain matter which is properly to be regarded as legislative in its character and effect." S. Rep. No. 1335, 54th Cong., 2d Sess., 8 (1897). Examination of the action taken here by one House pursu- ant to § 244(c)(2) reveals that it was essentially legislative in purpose and effect. In purporting to exercise power defined in Art. I, § 8, cl. 4, to "establish an uniform Rule of Natural- ization," the House took action that had the purpose and effect of altering the legal rights, duties, and relations of persons, including the Attorney General, Executive Branch officials and Chadha, all outside the Legislative Branch. Section 244(c)(2) purports to authorize one House of Con- gress to require the Attorney General to deport an individual alien whose deportation otherwise would be canceled under § 244. The one-House veto operated in these cases to over- rule the Attorney General and mandate Chadha's deporta- tion; absent the House action, Chadha would remain in the United States. Congress has acted and its action has altered Chadha's status. The legislative character of the one-House veto in these cases is confirmed by the character of the congressional ac- tion it supplants. Neither the House of Representatives nor the Senate contends that, absent the veto provision in § 244(c)(2), either of them, or both of them acting together, could effectively require the Attorney General to deport an alien once the Attorney General, in the exercise of legisla- INS v. CHADHA
919 Opinion of the Court tively delegated authority, 6 had determined the alien should remain in the United States. Without the challenged provi- sion in § 244(c)(2), this could have been achieved, if at all, only
"Congress protests that affirming the Court of Appeals in these cases will sanction "lawmaking by the Attorney General.... Why is the Attor- ney General exempt from submitting his proposed changes in the law to the full bicameral process?" Brief for Petitioner in No. 80-2170, p. 40. To be sure, some administrative agency action-rulemaking, for example-may resemble "lawmaking." See 5 U. S. C. § 551(4), which defines an agency's "rule" as "the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or pre- scribe law or policy ... ." This Court has referred to agency activity as being "quasi-legislative" in character. Humphrey's Executor v. United States, 295 U. S. 602, 628 (1935). Clearly, however, "[i]n the framework of our Constitution, the President's power to see that the laws are faith- fully executed refutes the idea that he is to be a lawmaker." Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 587 (1952). See Buckley v. Valeo, 424 U. S., at 123. When the Attorney General performs his duties pursuant to § 244, he does not exercise "legislative" power. See Ernst & Ernst v. Hochfelder, 425 U. S. 185, 213-214 (1976). The bicameral proc- ess is not necessary as a check on the Executive's administration of the laws because his administrative activity cannot reach beyond the limits of the statute that created it-a statute duly enacted pursuant to Art. I, §§ 1, 7. The constitutionality of the Attorney General's execution of the authority delegated to him by § 244 involves only a question of delegation doctrine. The courts, when a case or controversy arises, can always "as- certain whether the will of Congress has been obeyed," Yakus v. United States, 321 U. S. 414, 425 (1944), and can enforce adherence to statutory standards. See Youngstown Sheet & Tube Co. v. Sawyer, supra, at 585; Ethyl Corp. v. EPA, 176 U. S. App. D. C. 373, 440, 541 F. 2d 1, 68 (en banc) (separate statement of Leventhal, J.), cert. denied, 426 U. S. 941 (1976); L. Jaffe, Judicial Control of Administrative Action 320 (1965). It is clear, therefore, that the Attorney General acts in his presumptively Art. II capacity when he administers the Immigration and Nationality Act. Executive action under legislatively delegated authority that might resem- ble "legislative" action in some respects is not subject to the approval of both Houses of Congress and the President for the reason that the Con- stitution does not so require. That kind of Executive action is always sub- ject to check by the terms of the legislation that authorized it; and if that authority is exceeded it is open to judicial review as well as the power of OCTOBER TERM, 1982
Opinion of the Court 462 U. S. by legislation requiring deportation. 7 Similarly, a veto by one House of Congress under § 244(c)(2) cannot be justified as an attempt at amending the standards set out in § 244(a)(1), or as a repeal of § 244 as applied to Chadha. Amendment and repeal of statutes, no less than enactment, must conform with Art. L8 The nature of the decision implemented by the one-House veto in these cases further manifests its legislative character. After long experience with the clumsy, time-consuming pri- vate bill procedure, Congress made a deliberate choice to delegate to the Executive Branch, and specifically to the Attorney General, the authority to allow deportable aliens to remain in this country in certain specified circumstances. It is not disputed that this choice to delegate authority is pre- cisely the kind of decision that can be implemented only in accordance with the procedures set out in Art. I. Dis- agreement with the Attorney General's decision on Chadha's deportation-that is, Congress' decision to deport Chadha- no less than Congress' original choice to delegate to the At- torney General the authority to make that decision, involves determinations of policy that Congress can implement in only one way; bicameral passage followed by presentment to the
Congress to modify or revoke the authority entirely. A one-House veto is clearly legislative in both character and effect and is not so checked; the need for the check provided by Art. I, §§ 1, 7, is therefore clear. Con- gress' authority to delegate portions of its power to administrative agen- cies provides no support for the argument that Congress can constitution- ally control administration of the laws by way of a congressional veto. 17We express no opinion as to whether such legislation would violate any constitutional provision. See n. 8, supra. 8During the Convention of 1787, the application of the President's veto to repeals of statutes was addressed, and the Framers were apparently content with Madison's comment that "[a]s to the difficulty of repeals, it was probable that in doubtful cases the policy would soon take place of limiting the duration of laws as to require renewal instead of repeal." 2 Farrand 587. See Ginnane, The Control of Federal Administration by Congressional Resolutions and Committees, 66 Harv. L. Rev. 569, 587- 599 (1953). There is no provision allowing Congress to repeal or amend laws by other than legislative means pursuant to Art. I. INS v. CHADHA
919 Opinion of the Court President. Congress must abide by its delegation of author- ity until that delegation is legislatively altered or revoked.19 Finally, we see that when the Framers intended to author- ize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and pre- cisely defined the procedure for such action. There are four provisions in the Constitution,20 explicit and unambiguous, by which one House may act alone with the unreviewable force of law, not subject to the President's veto: (a) The House of Representatives alone was given the power to initiate impeachments. Art. I, § 2, cl. 5; (b) The Senate alone was given the power to conduct trials following impeachment on charges initiated by the House and to convict following trial. Art. I, § 3, cl. 6; (c) The Senate alone was given final unreviewable power to approve or to disapprove Presidential appointments. Art. II, §2, cl. 2; (d)The Senate alone was given unreviewable power to rat- ify treaties negotiated by the President. Art. II, § 2, cl. 2. Clearly, when the Draftsmen sought to confer special pow- ers on one House, independent of the other House, or of the President, they did so in explicit, unambiguous terms.21
'This does not mean that Congress is required to capitulate to 'the ac- cretion of policy control by forces outside its chambers." Javits & Klein, Congressional Oversight and the Legislative Veto: A Constitutional Analy- sis, 52 N. Y. U. L. Rev. 455, 462 (1977). The Constitution provides Congress with abundant means to oversee and control its administrative creatures. Beyond the obvious fact that Congress ultimately controls ad- ministrative agencies in the legislation that creates them, other means of control, such as durational limits on authorizations and formal reporting requirements, lie well within Congress' constitutional power. See id., at 460-461; Kaiser, Congressional Action to Overturn Agency Rules: Alterna- tives to the "Legislative Veto," 32 Ad. L. Rev. 667 (1980). See also n. 9, supra. 'See also U. S. Const., Art. II; § 1, and Amdt. 12. "An exception from the Presentment Clauses was ratified in Hol- lingsworth v. Virginia, 3 Dall. 378 (1798). There the Court held Presi- dential approval was unnecessary for a proposed constitutional amendment OCTOBER TERM, 1982
Opinion of the Court 462 U. S. These carefully defined exceptions from presentment and bi- cameralism underscore the difference between the legislative functions of Congress and other unilateral but important and binding one-House acts provided for in the Constitution. These exceptions are narrow, explicit, and separately justi- fied; none of them authorize the action challenged here. On the contrary, they provide further support for the conclusion that congressional authority is not to be implied and for the conclusion that the veto provided for in § 244(c)(2) is not authorized by the constitutional design of the powers of the Legislative Branch. Since it is clear that the action by the House under § 244(c)(2) was not within any of the express constitutional exceptions authorizing one House to act alone, and equally which had passed both Houses of Congress by the requisite two-thirds majority. See U. S. Const., Art. V. One might also include another "exception" to the rule that congressional action having the force of law be subject to the bicameral requirement and the Presentment Clauses. Each House has the power to act alone in determining specified internal matters. Art. I, § 7, cls. 2, 3, and § 5, cl. 2. However, this "exception" only empowers Congress to bind itself and is noteworthy only insofar as it further indicates the Framers' intent that Congress not act in any legally binding manner outside a closely circum- scribed legislative arena, except in specific and enumerated instances. Although the bicameral check was not provided for in any of these pro- visions for independent congressional action, precautionary alternative checks are evident. For example, Art. 11, § 2, requires that two-thirds of the Senators present concur in the Senate's consent to a treaty, rather than the simple majority required for passage of legislation. See The Federal- ist No. 64 (J. Jay); The Federalist No. 66 (A. Hamilton); The Federalist No. 75 (A. Hamilton). Similarly, the Framers adopted an alternative pro- tection, in the stead of Presidential veto and bicameralism, by requiring the concurrence of two-thirds of the Senators present for a conviction of impeachment. Art. I, § 3. We also note that the Court's holding in Hollingsworth, supra, that a resolution proposing an amendment to the Constitution need not be presented to the President, is subject to two al- ternative protections. First, a constitutional amendment must command the votes of two-thirds of each House. Second, three-fourths of the states must ratify any amendment. INS v. CHADHA
919 Opinion of the Court clear that it was an exercise of legislative power, that action was subject to the standards prescribed in Art. I. The bicameral requirement, the Presentment Clauses, the Presi- dent's veto, and Congress' power to override a veto were intended to erect enduring checks on each Branch and to protect the people from the improvident exercise of power by mandating certain prescribed steps. To preserve those
"JUSTICE POWELL'S position is that the one-House veto in this case is a judicial act and therefore unconstitutional as beyond the authority vested in Congress by the Constitution. We agree that there is a sense in which one-House action pursuant to §244(c)(2) has a judicial cast, since it pur- ports to "review" Executive action. In this case, for example, the sponsor of the resolution vetoing the suspension of Chadha's deportation argued that Chadha "did not meet [the] statutory requirements" for suspension of deportation. Supra, at 926. To be sure, it is normally up to the courts to decide whether an agency has complied with its statutory mandate. See n. 16, supra. But the attempted analogy between judicial action and the one-House veto is less than perfect. Federal courts do not enjoy a roving mandate to correct alleged excesses of administrative agencies; we are lim- ited by Art. III to hearing cases and controversies and no justiciable case or controversy was presented by the Attorney General's decision to allow Chadha to remain in this country. We are aware of no decision, and JUS- TICE POWELL has cited none, where a federal court has reviewed a decision of the Attorney General suspending deportation of an alien pursuant to the standards set out in § 244(a)(1). This is not surprising, given that no party to such action has either the motivation or the right to appeal from it. As JUSTICE WmTE correctly notes, post, at 1001-1002, 'the courts have not been given the authority to review whether an alien should be given per- manent status; review is limited to whether the Attorney General has properly applied the statutory standards for" denying a request for sus- pension of deportation. Foti v. INS, 375 U. S. 217 (1963), relied on by JUSTICE POWELL, addressed only "whether a refusal by the Attorney Gen- eral to grant a suspension of deportation is one of those 'final orders of de- portation' of which direct review by Courts of Appeals is authorized under § 106(a) of the Act." Id., at 221. Thus, JUSTICE POWELL's statement that the one-House veto in this case is "clearly adjudicatory," post, at 964, simply is not supported by his accompanying assertion that the House has "assumed a function ordinarily entrusted to the federal courts." Post, at 965. We are satisfied that the one-House veto is legislative in purpose and effect and subject to the procedures set out in Art. I. OCTOBER TERM, 1982
Opinion of the Court 462 U. S. checks, and maintain the separation of powers, the carefully defined limits on the power of each Branch must not be eroded. To accomplish what has been attempted by one House of Congress in this case requires action in conformity with the express procedures of the Constitution's prescrip- tion for legislative action: passage by a majority of both Houses and presentment to the President." The veto authorized by § 244(c)(2) doubtless has been in many respects a convenient shortcut; the "sharing" with the Executive by Congress of its authority over aliens in this manner is, on its face, an appealing compromise. In purely practical terms, it is obviously easier for action to be taken by one House without submission to the President; but it is crys-
Neither can we accept the suggestion that the one-House veto provi- sion in § 244(c)(2) either removes or modifies the bicameralism and presen- tation requirements for the enactment of future legislation affecting aliens. See Atkins v. United States, 214 Ct. Cl. 186, 250-251, 556 F. 2d 1028, 1063-1064 (1977), cert. denied, 434 U. S.1009 (1978); Brief for Petitioner in No. 80-2170, p. 40. The explicit prescription for legislative action con- tained in Art. I cannot be amended by legislation. See n. 13, supra. JUSTICE WHITE suggests that the Attorney General's action under § 244(c)(1) suspending deportation is equivalent to a proposal for legisla- tion and that because congressional approval is indicated "by the failure to veto, the one-House veto satisfies the requirement of bicameral approval." Post, at 997. However, as the Court of Appeals noted, that approach "would analogize the effect of the one house disapproval to the failure of one house to vote affirmatively on a private bill." 634 F. 2d 408, 435 (1980). Even if it were clear that Congress entertained such an arcane theory when it enacted § 244(c)(2), which JUSTICE WHITE does not sug- gest, this would amount to nothing less than an amending of Art. I. The legislative steps outlined in Art. I are not empty formalities; they were de- signed to assure that both Houses of Congress and the President partici- pate in the exercise of lawmaking authority. This does not mean that leg- islation must always be preceded by debate; on the contrary, we have said that it is not necessary for a legislative body to "articulate its reasons for enacting a statute." United States Railroad Retirement Board v. Fritz, 449 U. S. 166, 179 (1980). But the steps required by Art. I, H 1, 7, make certain that there is an opportunity for deliberation and debate. To allow Congress to evade the strictures of the Constitution and in effect enact Ex- ecutive proposals into law by mere silence cannot be squared with Art. I. INS v. CHADHA
919 POWELL, J., concurring in judgment tal clear from the records of the Convention, contemporane- ous writings and debates, that the Framers ranked other val- ues higher than efficiency. The records of the Convention and debates in the states preceding ratification underscore the common desire to define and limit the exercise of the newly created federal powers affecting the states and the people. There is unmistakable expression of a determina- tion that legislation by the national Congress be a step-by- step, deliberate and deliberative process. The choices we discern as having been made in the Constitutional Convention impose burdens on governmental processes that often seem clumsy, inefficient, even unwork- able, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary govermental acts to go unchecked. There is no support in the Constitution or decisions of this Court for the proposition that the cumbersomeness and delays often en- countered in complying with explicit constitutional standards may be avoided, either by the Congress or by the President. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution. V We hold that the congressional veto provision in § 244(c)(2) is severable from the Act and that it is unconstitutional. Ac- cordingly, the judgment of the Court of Appeals is Affirmed.
JUSTICE POWELL, concurring in the judgment. The Court's decision, based on the Presentment Clauses, Art. I, § 7, cls. 2 and 3, apparently will invalidate every use of the legislative veto. The breadth of this holding gives one pause. Congress has included the veto in literally hundreds OCTOBER TERM, 1982
POWELL, J., concurring in judgment 462 U. S. of statutes, dating back to the 1930's. Congress clearly views this procedure as essential to controlling the delegation of power to administrative agencies.1 One reasonably may disagree with Congress' assessment of the veto's utility, 2 but the respect due its judgment as a coordinate branch of Gov- ernment cautions that our holding should be no more exten- sive than necessary to decide these cases. In my view, the cases may be decided on a narrower ground. When Con- gress finds that a particular person does not satisfy the statu- tory criteria for permanent residence in this country it has assumed a judicial function in violation of the principle of separation of powers. Accordingly, I concur only in the judgment. I A The Framers perceived that "[tihe accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether heredi- tary, self appointed, or elective, may justly be pronounced the very definition of tyranny." The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison). Theirs was not a baseless fear. Under British rule, the Colonies suffered the abuses of unchecked executive power that were attributed, at least popularly, to a hereditary monarchy. See Levi, Some As- pects of Separation of Powers, 76 Colum. L. Rev. 369, 374 (1976); The Federalist No. 48. During the Confederation,
1As JUSTICE WHITE's dissenting opinion explains, the legislative veto has been included in a wide variety of statutes, ranging from bills for exec- utive reorganization to the War Powers Resolution. See post, at 968-972. Whether the veto complies with the Presentment Clauses may well turn on the particular context in which it is exercised, and I would be hesitant to conclude that every veto is unconstitutional on the basis of the unusual ex- ample presented by this litigation. 2See Martin, The Legislative Veto and the Responsible Exercise of Con- gressional Power, 68 Va. L. Rev. 253 (1982); ConsumerEnergy Council of America v. FERC, 218 U. S. App. D. C. 34, 84, 673 F. 2d 425, 475 (1982). INS v. CHADHA
919 POWELL, J., concurring in judgment the States reacted by removing power from the executive and placing it in the hands of elected legislators. But many legislators proved to be little better than the Crown. "The supremacy of legislatures came to be recognize,! as the su- premacy of faction and the tyranny of shifting majorities. The legislatures confiscated property, erected paper money schemes, [and] suspended the ordinary means of collecting debts." Levi, supra, at 374-375. One abuse that was prevalent during the Confederation was the exercise of judicial power by the state legislatures. The Framers were well acquainted with the danger of sub- jecting the determination of the rights of one person to the "tyranny of shifting majorities." Jefferson observed that members of the General Assembly in his native Virginia had not been prevented from assuming judicial power, and "'[t]hey have accordingly in many instances decided rights which should have been left to judiciary controversy."'3 The Federalist No. 48, supra, at 336 (emphasis in original) (quoting T. Jefferson, Notes on the State of Virginia 196 (London ed. 1787)). The same concern also was evident in the reports of the Council of the Censors, a body that was charged with determining whether the Pennsylvania Legisla- ture had complied with the State Constitution. The Council found that during this period "[t]he constitutional trial by jury had been violated; and powers assumed, which had not been delegated by the Constitution .... [C]ases belonging
'Jefferson later questioned the degree to which the Constitution insu- lates the judiciary. See D. Malone, Jefferson the President: Second Term, 1805-1809, pp. 304-305 (1974). In response to Chief Justice Marshall's rulings during Aaron Burr's trial, Jefferson stated that the judiciary had favored Burr-whom Jefferson viewed as clearly guilty of treason-at the expense of the country. He predicted that the people "'will see then and amend the error in our Constitution, which makes any branch independent of the nation."' Id., at 305 (quoting Jefferson's letter to William Giles). The very controversy that attended Burr's trial, however, demonstrates the wisdom in providing a neutral forum, removed from political pressure, for the determination of one person's rights. OCTOBER TERM, 1982
POWELL, J., concurring in judgment 462 U. S. to the judiciary department, frequently [had been] drawn within legislative cognizance and determination." The Fed- eralist No. 48, at 336-337. It was to prevent the recurrence of such abuses that the Framers vested the executive, legislative, and judicial pow- ers in separate branches. Their concern that a legislature should not be able unilaterally to impose a substantial depri- vation on one person was expressed not only in this general allocation of power, but also in more specific provisions, such as the Bill of Attainder Clause, Art. I, § 9, cl. 3. As the Court recognized in United States v. Brown, 381 U. S. 437, 442 (1965), "the Bill of Attainder Clause was intended not as a narrow, technical ... prohibition, but rather as an implementation of the separation of powers, a general safe- guard against legislative exercise of the judicial function, or more simply-trial by legislature." This Clause, and the separation-of-powers doctrine generally, reflect the Framers' concern that trial by a legislature lacks the safeguards neces- sary to prevent the abuse of power.
B The Constitution does not establish three branches with precisely defined boundaries. See Buckley v. Valeo, 424 U. S. 1, 121 (1976) (percuriam). Rather, as Justice Jackson wrote: ' hile the Constitution diffuses power the better to secure liberty, it also contemplates that practice will inte- grate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (concurring in judg- ment). The Court thus has been mindful that the boundaries between each branch should be fixed "according to common sense and the inherent necessities of the governmental co- ordination." J. W. Hampton & Co. v. United States, 276 U. S. 394, 406 (1928). But where one branch has impaired or sought to assume a power central to another branch, the INS v. CHADHA
919 POWELL, J., concurring in judgment Court has not hesitated to enforce the doctrine. See Buck- ley v. Valeo, supra, at 123. Functionally, the doctrine may be violated in two ways. One branch may interfere impermissibly with the other's performance of its constitutionally assigned function. See Nixon v. Administrator of General Services, 433 U. S. 425, 433 (1977); United States v. Nixon, 418 U. S. 683 (1974). Al- ternatively, the doctrine may be violated when one branch assumes a function that more properly is entrusted to an- other. See Youngstown Sheet & Tube Co. v. Sawyer, supra, at 587; Springer v. Philippine Islands, 277 U. S. 189, 203 4 (1928). These cases present the latter situation.
II Before considering whether Congress impermissibly as- sumed a judicial function, it is helpful to recount briefly Congress' actions. Jagdish Rai Chadha, a citizen of Kenya, stayed in this country after his student visa expired. Al- though he was scheduled to be deported, he requested the Immigration and Naturalization Service to suspend his deportation because he met the statutory criteria for per- manent residence in this country. After a hearing,5 the Service granted Chadha's request and sent-as required by
'The House and the Senate argue that the legislative veto does not pre- vent the executive from exercising its constitutionally assigned function. Even assuming this argument is correct, it does not address the concern that the Congress is exercising unchecked judicial power at the expense of individual liberties. It was precisely to prevent such arbitrary action that the Framers adopted the doctrine of separation of powers. See, e. g., Myers v. United States, 272 U. S. 52, 293 (1926) (Brandeis, J., dissenting). 5The Immigration and Naturalization Service, a division of the Depart- ment of Justice, administers the Immigration and Nationality Act on behalf of the Attorney General, who has primary responsiblity for the Act's enforcement. See 8 U. S. C. § 1103. The Act establishes a detailed administrative procedure for determining when a specific person is to be deported, see § 1252(b), and provides for judicial review of this decision, see § 1105a; Foti v. INS, 375 U. S. 217 (1963). OCTOBER TERM, 1982
POWELL, J., concurring in judgment 462 U. S. the reservation of the veto right-a report of its action to Congress. In addition to the report on Chadha, Congress had before it the names of 339 other persons whose deportations also had been suspended by the Service. The House Committee on the Judiciary decided that six of these persons, including Chadha, should not be allowed to remain in this country. Accordingly, it submitted a resolution to the House, which stated simply that "the House of Representatives does not approve the granting of permanent residence in the United States to the aliens hereinafter named." 121 Cong. Rec. 40800 (1975). The resolution was not distributed prior to the vote,6 but the Chairman of the Judiciary Subcommittee on Immigration, Citizenship, and International Law explained to the House: "It was the feeling of the committee, after reviewing 340 cases, that the aliens contained in the resolution did not meet [the] statutory requirements, particularly as it relates to hardship; and it is the opinion of the committee that their deportation should not be suspended." Ibid. (remarks of Rep. Eilberg). Without further explanation and without a recorded vote, the House rejected the Service's determination that these six people met the statutory criteria. On its face, the House's action appears clearly adjudica- tory.7 The House did not enact a general rule; rather it ' Normally the House would have distributed the resolution before acting on it, see 121 Cong. Rec. 40800 (1975), but the statute providing for the legislative veto limits the time in which Congress may veto the Service's determination that deportation should be suspended. See 8 U. S. C. § 1254(c)(2). In this case Congress had Chadha's report before it for ap- proximately a year and a half, but failed to act on it until three days before the end of the limitations period. Accordingly, it was required to abandon its normal procedures for considering resolutions, thereby increasing the danger of arbitrary and ill-considered action. 7The Court concludes that Congress' action was legislative in character because each branch "presumptively act[s] within its assigned sphere." Ante, at 952. The Court's presumption providep a useful starting point, INS v. CHADHA
919 POWELL, J., concurring in judgment made its own determination that six specific persons did not comply with certain statutory criteria. It thus undertook the type of decision that traditionally has been left to other branches. Even if the House did not make a de novo deter- mination, but simply reviewed the Immigration and Nat- uralization Service's findings, it still assumed a function ordinarily entrusted to the federal courts." See 5 U. S. C. § 704 (providing generally for judicial review of final agency action); cf. Foti v. INS, 375 U. S. 217 (1963) (holding that courts of appeals have jurisdiction to review INS decisions denying suspension of deportation). Where, as here, Con- gress has exercised a power "that cannot possibly be re- garded as merely in aid of the legislative function of Con- but does not conclude the inquiry. Nor does the fact that the House's action alters an individual's legal status indicate, as the Court reasons, see ante, at 952-954, that the action is legislative rather than adjudicative in nature. In determining whether one branch unconstitutionally has as- sumed a power central to another branch, the traditional characterization of the assumed power as legislative, executive, or judicial may provide some guidance. See Springer v. Philippine Islands, 277 U. S. 189, 203 (1928). But reasonable minds may disagree over the character of an act, and the more helpful inquiry, in my view, is whether the act in question raises the dangers the Framers sought to avoid. 8The Court reasons in response to this argument that the one-House veto exercised in this case was not judicial in nature because the decision of the Immigration and Naturalization Service did not present a justiciable issue that could have been reviewed by a court on appeal. See ante, at 957, n. 22. The Court notes that since the administrative agency de- cided the case in favor of Chadha, there was no aggrieved party who could appeal. Reliance by the Court on this fact misses the point. Even if review of the particular decision to suspend deportation is not committed to the courts, the House of Representatives assumed a function that gener- ally is entrusted to an impartial tribunual. In my view, the Legislative Branch in effect acted as an appellate court by overruling the Service's application of established law to Chadha. And unlike a court or an admin- istrative agency, it did not provide Chadha with the right to counsel or a hearing before acting. Although the parallel is not entirely complete, the effect on Chadha's personal rights would not have been different in princi- ple had he been acquitted of a federal crime and thereafter found by one House of Congress to have been guilty. OCTOBER TERM, 1982
POWELL, J., concurring in judgment 462 U. S. gress," Buckley v. Valeo, 424 U. S., at 138, the decisions of this Court have held that Congress impermissibly assumed a function that the Constitution entrusted to another branch, see id., at 138-141; cf. Springer v. Philippine Islands, 277 U. S., at 202. The impropriety of the House's assumption of this function is confirmed by the fact that its action raises the very danger the Framers sought to avoid-the exercise of unchecked power. In deciding whether Chadha deserves to be de- ported, Congress is not subject to any internal constraints that prevent it from arbitrarily depriving him of the right to remain in this country.' Unlike the judiciary or an adminis- trative agency, Congress is not bound by established sub- stantive rules. Nor is it subject to the procedural safe- guards, such as the right to counsel and a hearing before an impartial tribunal, that are present when a court or an agency 10 adjudicates individual rights. The only effective constraint on Congress' power is political, but Congress is most accountable politically when it prescribes rules of gen- eral applicability. When it decides rights of specific per- sons, those rights are subject to "the tyranny of a shifting majority."
9When Congress grants particular individuals relief or benefits under its spending power, the danger of oppressive action that the separation of powers was designed to avoid is not implicated. Similarly, Congress may authorize the admission of individual aliens by special Acts, but it does not follow that Congress unilaterally may make a judgment that a particular alien has no legal right to remain in this country. See Memorandum Con- cerning H. R. 9766 Entitled "An Act to Direct the Deportation of Harry Renton Bridges," reprinted in S. Rep. No. 2031, 76th Cong., 3d Sess., pt. 1, p. 8 (1940). As Attorney General Robert Jackson remarked, such a practice "would be an historical departure from an unbroken American practice and tradition." Id., at 9. "OWe have recognized that independent regulatory agencies and depart- ments of the Executive Branch often exercise authority that is 'judicial in nature." Buckley v. Valeo, 424 U. S. 1, 140-141 (1976). This function, however, forms part of the agencies' execution of public law and is subject to the procedural safeguards, including judicial review, provided by the Admin- istrative Procedure Act, see 5 U. S. C. § 551 et seq. See also n. 5, supra. INS v. CHADHA
919 WHITE, J., dissenting Chief Justice Marshall observed: "It is the peculiar prov- ince of the legislature to prescribe general rules for the government of society; the application of those rules to in- dividuals in society would seem to be the duty of other departments." Fletcher v. Peck, 6 Cranch 87, 136 (1810). In my view, when Congress undertook to apply its rules to Chadha, it exceeded the scope of its constitutionally pre- scribed authority. I would not reach the broader question whether legislative vetoes are invalid under the Presentment Clauses. JUSTICE WHITE, dissenting. Today the Court not only invalidates §244(c)(2) of the Immigration and Nationality Act, but also sounds the death knell for nearly 200 other statutory provisions in which Con- gress has reserved a "legislative veto." For this reason, the Court's decision is of surpassing importance. And it is for this reason that the Court would have been well advised to decide the cases, if possible, on the narrower grounds of separation of powers, leaving for full consideration the con- stitutionality of other congressional review statutes oper- ating on such varied matters as war powers and agency rulemaking, some of which concern the independent regula- tory agencies.1 The prominence of the legislative veto mechanism in our contemporary political system and its importance to Con- gress can hardly be overstated. It has become a central
' As JUSTICE PowELL observes in his separate opinion, "the respect due [Congress'] judgment as a coordinate branch of Government cautions that our holding should be no more extensive than necessary to decide these cases." Ante, at 960. The Court of Appeals for the Ninth Circuit also recognized that "we are not here faced with a situation in which the unforeseeability of future circumstances or the broad scope and complexity of the subject matter of an agency's rulemaking authority preclude the ar- ticulation of specific criteria in the governing statute itself. Such factors might present considerations different from those we find here, both as to the question of separation of powers and the legitimacy of the unicameral device." 634 F. 2d 408, 433 (1980) (footnote omitted). OCTOBER TERM, 1982
WHITE, J., dissenting 462 U. S. means by which Congress secures the accountability of exec- utive and independent agencies. Without the legislative veto, Congress is faced with a Hobson's choice: either to re- frain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite speci- ficity to cover endless special circumstances across the entire policy landscape, or in the alternative, to abdicate its law- making function to the Executive Branch and independent agencies. To choose the former leaves major national prob- lems unresolved; to opt for the latter risks unaccountable policymaking by those not elected to fill that role. Accord- ingly, over the past five decades, the legislative veto has been placed in nearly 200 statutes.2 The device is known in every field of governmental concern: reorganization, budgets, foreign affairs, war powers, and regulation of trade, safety, energy, the environment, and the economy.
The legislative veto developed initially in response to the problems of reorganizing the sprawling Government struc- ture created in response to the Depression. The Reorga- nization Acts established the chief model for the legislative veto. When President Hoover requested authority to reor- ganize the Government in 1929, he coupled his request that the "Congress be willing to delegate its authority over the problem (subject to defined principles) to the Executive" with a proposal for legislative review. He proposed that the Executive "should act upon approval of a joint committee of Congress or with the reservation of power of revision by Congress within some limited period adequate for its consid- eration." Public Papers of the Presidents, Herbert Hoover, 1929, p. 432 (1974). Congress followed President Hoover's suggestion and authorized reorganization subject to legisla-
2A selected list and brief description of these provisions is appended to this opinion. INS v. CHADHA
919 WHrrE, J., dissenting tive review. Act of June 30, 1932, § 407, 47 Stat. 414. Al- though the reorganization authority reenacted in 1933 did not contain a legislative veto provision, the provision returned during the Roosevelt administration and has since been re- newed numerous times. Over the years, the provision was used extensively. Presidents submitted 115 Reorganization Plans to Congress of which 23 were disapproved by Congress pursuant to legislative veto provisions. See App. A to Brief for United States Senate on Reargument. Shortly after adoption of the Reorganization Act of 1939, 53 Stat. 561, Congress and the President applied the legisla- tive veto procedure to resolve the delegation problem for na- tional security and foreign affairs. World War II occasioned the need to transfer greater authority to the President in these areas. The legislative veto offered the means by which Congress could confer additional authority while pre- serving its own constitutional role. During World War II, Congress enacted over 30 statutes conferring powers on the Executive with legislative veto provisions.' President Roosevelt accepted the veto as the necessary price for ob- 4 taining exceptional authority. Over the quarter century following World War II, Presi- dents continued to accept legislative vetoes by one or both Houses as constitutional, while regularly denouncing provi- sions by which congressional Committees reviewed Execu- tive activity.' The legislative veto balanced delegations of
$Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif. L. Rev. 983, 1089-1090 (1975) (listing statutes). 4The Roosevelt administration submitted proposed legislation containing veto provisions and defended their constitutionality. See, e. g., General Counsel to the Office of Price Administration, Statement on Constitutional- ity of Concurrent Resolution Provision of Proposed Price Control Bill (H. R. 5479), reprinted in Price-Control Bill: Hearings on H. R. 5479 before the House Committee on Banking and Currency, 77th Cong., 1st Sess., pt. 1, p. 983 (1941). 'Presidential objections to the veto, until the veto by President Nixon of the War Powers Resolution, principally concerned bills authorizing Coin- OCTOBER TERM, 1982
WHITE, J., dissenting 462 U. S. statutory authority in new areas of governmental involve- ment: the space program, international agreements on nu- clear energy, tariff arrangements, and adjustment of federal 6 pay rates. During the 1970's the legislative veto was important in re- solving a series of major constitutional disputes between the President and Congress over claims of the President to broad impoundment, war, and national emergency powers. The mittee vetoes. As the Senate Subcommittee on Separation of Powers found in 1969, "an accommodation was reached years ago on legislative ve- toes exercised by the entire Congress or by one House, [while] disputes have continued to arise over the committee form of the veto." S. Rep. No. 91-549, p. 14 (1969). Presidents Kennedy and Johnson proposed en- actment of statutes with legislative veto provisions. See National Wilder- ness Preservation Act: Hearings on S. 4 before the Senate Committee on Interior and Insular Affairs, 88th Cong., 1st Sess., 4 (1963) (President Kennedy's proposals for withdrawal of wilderness areas); President's Mes- sage to the Congress Transmitting the Budget for Fiscal Year 1970, 5 Weekly Comp. Pres. Doc. 70, 73 (1969) (President Johnson's proposals allowing legislative veto of tax surcharge). The administration of Presi- dent Kennedy submitted a memorandum supporting the constitutionality of the legislative veto. See General Counsel of the Department of Agricul- ture, Constitutionality of Title I of H. R. 6400, 87th Cong., 1st Session (1961), reprinted in Legislative Policy of the Bureau of the Budget: Hear- ing before the Subcommittee on Conservation and Credit of the House Committee on Agriculture, 89th Cong., 2d Sess., 27,31-32 (1966). During the administration of President Johnson, the Department of Justice again defended the constitutionality of the legislative veto provision of the Re- organization Act, as contrasted with provisions for a Committee veto. See Separation of Powers: Hearings before the Subcommittee on Separa- tion of Powers of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 206 (1967) (testimony of Frank M. Wozencraft, Assistant Attorney General for the Office of Legal Counsel). ' National Aeronautics and Space Act of 1958, Pub. L. 85-568, § 302, 72 Stat. 433 (space program); Atomic Energy Act Amendments of 1958, Pub. L. 85-479, § 4, 72 Stat. 277 (cooperative nuclear agreements); Trade Ex- pansion Act of 1962, Pub. L. 87-794, § 351, 76 Stat. 899, 19 U. S. C. § 1981 (tariff recommended by International Trade Commission may be imposed by concurrent resolution of approval); Postal Revenue and Federal Salary Act of 1967, Pub. L. 90-206, § 255(i)(1), 81 Stat. 644. INS v. CHADHA
919 WHrrE, J., dissenting key provision of the War Powers Resolution, 50 U. S. C. § 1544(c), authorizes the termination by concurrent resolution of the use of armed forces in hostilities. A similar measure resolved the problem posed by Presidential claims of inherent power to impound appropriations. Congressional Budget and Impoundment Control Act of 1974, 31 U. S. C. § 1403. In conference, a compromise was achieved under which per- manent impoundments, termed "rescissions," would require approval through enactment of legislation. In contrast, tem- porary impoundments, or "deferrals," would become effec- tive unless disapproved by one House. This compromise provided the President with flexibility, while preserving ulti- mate congressional control over the budget.7 Although the War Powers Resolution was enacted over President Nixon's veto, the Impoundment Control Act was enacted with the President's approval. These statutes were followed by oth- ers resolving similar problems: the National Emergencies Act, § 202, 90 Stat. 1255, 50 U. S. C. § 1622, resolving the longstanding problems with unchecked Executive emergency power; the International Security Assistance and Arms Ex- port Control Act, §211, 90 Stat. 740, 22 U. S. C. §2776(b), resolving the problem of foreign arms sales; and the Nuclear Non-Proliferation Act of 1978, §§ 303(a), 304(a), 306, 307, 401, 92 Stat. 130, 134, 137, 138, 144-145, 42 U. S. C. §§2160(f), 2155(b), 2157(b), 2158, 2153(d) (1976 ed., Supp. V), resolving the problem of exports of nuclear technology. In the energy field, the legislative veto served to balance broad delegations in legislation emerging from the energy crisis of the 1970's.1 In the educational field, it was found
7The Impoundment Control Act's provision for legislative review has been used extensively. Presidents have submitted hundreds of proposed budget deferrals, of which 65 have been disapproved by resolutions of the House or Senate with no protest by the Executive. See App. B to Brief for United States Senate on Reargument. 8The veto appears in a host of broad statutory delegations concerning energy rationing, contingency plans, strategic oil reserves, allocation of OCTOBER TERM, 1982
WHITE, J., dissenting 462 U. S. that fragmented and narrow grant programs "inevitably lead to Executive-Legislative confrontations" because they in- aptly limited the Commissioner of Education's authority. S. Rep. No. 93-763, p. 69 (1974). The response was to grant the Commissioner of Education rulemaking authority, sub- ject to a legislative veto. In the trade regulation area, the veto preserved congressional authority over the Federal Trade Commission's broad mandate to make rules to prevent businesses from engaging in "unfair or deceptive acts or prac- tices in commerce." 9 Even this brief review suffices to demonstrate that the leg- islative veto is more than "efficient, convenient, and useful." Ante, at 944. It is an important if not indispensable political invention that allows the President and Congress to resolve major constitutional and policy differences, assures the accountability of independent regulatory agencies, and pre- energy production materials, oil exports, and naval petroleum reserve pro- duction. Naval Petroleum Reserves Production Act of 1976, Pub. L. 94-258, § 201(3), 90 Stat. 309, 10 U. S. C. § 7422(c)(2)(C); Energy Policy and Conservation Act, Pub. L. 94-163, §§ 159, 201, 401(a), and 455, 89 Stat. 886, 890, 941, and 950, 42 U. S. C. §§ 6239 and 6261, 15 U. S. C. §§ 757 and 760a (strategic oil reserves, rationing and contingency plans, oil price controls and product allocation); Federal Nonnuclear Energy Re- search and Development Act of 1974, Pub. L. 93-577, § 12, 88 Stat. 1892-1893, 42 U. S. C. § 5911 (allocation of energy production materials); Act of Nov. 16, 1973, Pub. L. 93-153, § 101, 87 Stat. 582, 30 U. S. C. § 185(u) (oil exports). 9Congress found that under the agency's "very broad authority to prohibit conduct which is 'unfair or deceptive'... the FTC can regulate virtually every aspect of America's commercial life. . . .The FTC's rules are not merely narrow interpretations of a tightly drawn statute; instead, they are broad policy pronouncements which Congress has an obligation to study and review." 124 Cong. Rec. 5012 (1978) (statement by Rep. Broyhill). A two-House legislative veto was added to constrain that broad delegation. Federal Trade Commission Improvements Act of 1980, § 21(a), 94 Stat. 393, 15 U. S. C. § 57a-l(a) (1976 ed., Supp. V). The constitutionality of that provision is presently pending before us. United States Senate v. Federal Trade Commission, No. 82-935; United States House of Repre- sentatives v. Federal Trade Commission, No. 82-1044. INS v. CHADHA
919 WMTE, J., dissenting serves Congress' control over lawmaking. Perhaps there are other means of accommodation and accountability, but the increasing reliance of Congress upon the legislative veto suggests that the alternatives to which Congress must now turn are not entirely satisfactory."
"While Congress could write certain statutes with greater specificity, it is unlikely that this is a realistic or even desirable substitute for the legisla- tive veto. The controversial nature of many issues would prevent Con- gress from reaching agreement on many major problems if specificity were required in their enactments. Fuchs, Administrative Agencies and the Energy Problem, 47 Ind. L. J. 606, 608 (1972); Stewart, Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1695-1696 (1975). For example, in the deportation context, the solution is not for Congress to create more refined categorizations of the deportable aliens whose status should be subject to change. In 1979, the Immigration and Naturalization Service proposed regulations setting forth factors to be considered in the exercise of discretion under numerous provisions of the Act, but not includ- ing § 244, to ensure "fair and uniform" adjudication "under appropriate dis- cretionary criteria." 44 Fed. Reg. 36187 (1979). The proposed rule was canceled in 1981, because "[tlhere is an inherent failure in any attempt to list those factors which should be considered in the exercise of discretion. It is impossible to list or foresee all of the adverse or favorable factors which may be present in a given set of circumstances." 46 Fed. Reg. 9119 (1981). Oversight hearings and congressional investigations have their purpose, but unless Congress is to be rendered a think tank or debating society, they are no substitute for the exercise of actual authority. The "delaying" procedure approved in Sibbach v. Wilson & Co., 312 U. S. 1, 15 (1941), while satisfactory for certain measures, has its own shortcomings. Be- cause a new law must be passed to restrain administrative action, Con- gress must delegate authority without the certain ability of being able to check its exercise. Finally, the passage of corrective legislation after agency regulations take effect or Executive Branch officials have acted entails the drawbacks endemic to a retroactive response. 'Post hoc substantive revision of legis- lation, the only available corrective mechanism in the absence of postenact- ment review could have serious prejudicial consequences; if Congress ret- roactively tampered with a price control system after prices have been set, the economy could be damaged and private rights seriously impaired; if Congress rescinded the sale of arms to a foreign country, our relations with that country would be severely strained; and if Congress reshuffled the bu- reaucracy after a President's reorganization proposal had taken effect, the OCTOBER TERM, 1982
WHITE, J., dissenting 462 U. S. The history of the legislative veto also makes clear that it has not been a sword with which Congress has struck out to aggrandize itself at the expense of the other branches-the concerns of Madison and Hamilton. Rather, the veto has been a means of defense, a reservation of ultimate authority necessary if Congress is to fulfill its designated role under Art. I as the Nation's lawmaker. While the President has often objected to particular legislative vetoes, generally those left in the hands of congressional Committees, the Ex- ecutive has more often agreed to legislative review as the price for a broad delegation of authority. To be sure, the President may have preferred unrestricted power, but that could be precisely why Congress thought it essential to retain a check on the exercise of delegated authority. II For all these reasons, the apparent sweep of the Court's decision today is regretable. The Court's Art. I analysis ap- pears to invalidate all legislative vetoes irrespective of form or subject. Because the legislative veto is commonly found as a check upon rulemaking by administrative agencies and upon broad-based policy decisions of the Executive Branch, it is particularly unfortunate that the Court reaches its decision in cases involving the exercise of a veto over deportation decisions regarding particular individuals. Courts should always be wary of striking statutes as unconstitutional; to strike an entire class of statutes based on consideration of a somewhat atypical and more readily indictable exemplar of the class is irresponsible. It was for cases such as these that Justice Brandeis wrote: "The Court has frequently called attention to the 'great gravity and delicacy' of its function in passing upon the validity of an act of Congress .... results could be chaotic." Javits & Klein, Congressional Oversight and the Legislative Veto: A Constitutional Analysis, 52 N. Y. U. L. Rev. 455, 464 (1977) (footnote omitted). INS v. CHADHA
919 WHITE, J., dissenting "The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' Liverpool, N. Y. & P. S. S. Co. v. Emigration Commissioners, [113 U. S. 33, 39 (1885)]." Ashwander v. TVA, 297 U. S. 288, 345, 347 (1936) (concurring opinion). Unfortunately, today's holding is not so limited. 11
"Perhaps I am wrong and the Court remains open to consider whether certain forms of the legislative veto are reconcilable with the Art. I re- quirements. One possibility for the Court and Congress is to accept that a resolution of disapproval cannot be given legal effect in its own right, but may serve as a guide in the interpretation of a delegation of law- making authority. The exercise of the veto could be read as a manifesta- tion of legislative intent, which, unless itself contrary to the authorizing statute, serves as the definitive construction of the statute. Therefore, an agency rule vetoed by Congress would not be enforced in the courts be- cause the veto indicates that the agency action departs from the congres- sional intent. This limited role for a redefined legislative veto follows in the steps of the longstanding practice of giving some weight to subsequent legislative reaction to administrative rulemaking. The silence of Congress after con- sideration of a practice by the Executive may be equivalent to acquiescence and consent that the practice be continued until the power exercised be re- voked. United States v. Midwest Oil Co., 236 U. S. 459, 472-473 (1915). See also Zemel v. Rusk, 381 U. S. 1, 11-12 (1965) (relying on congressional failure to repeal administration interpretation); Haig v. Agee, 453 U. S. 280 (1981) (same); Bob Jones University v. United States, 461 U. S. 574 (1983) (same); MerrillLynch, Pierce,Fenner & Smith, Inc. v. Curran, 456 U. S. 353, 384 (1982) (relying on failure to disturb judicial decision in later revision of law). Reliance on subsequent legislative reaction has been limited by the fear of overturning the intent of the original Congress and the unreliability of discerning the views of a subsequent Congress. Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 117-118 (1980); United States v. Price, 361 U. S. 304, 313 (1960). These concerns are not forceful when the original statute authorizes subsequent legislative review. The presence of the review provision constitutes an express authorization for a subsequent Congress to participate in defining the meaning of the law. Second, the disapproval resolution allows for a reliable determina- tion of congressional intent. Without the review mechanism, uncertainty over the inferences to draw from subsequent congressional action is under- OCTOBER TERM, 1982
WHITE, J., dissenting 462 U. S. If the legislative veto were as plainly unconstitutional as the Court strives to suggest, its broad ruling today would be more comprehensible. But, the constitutionality of the leg- islative veto is anything but clear-cut. The issue divides scholars,' courts, 3 Attorneys General, 4 and the two other standable. The refusal to pass an amendment, for example, may indicate opposition to that position but could mean that Congress believes the amendment is redundant with the statute as written. By contrast, the ex- ercise of a legislative veto is an unmistakable indication that the agency or Executive decision at issue is disfavored. This is not to suggest that the failure to pass a veto resolution should be given any weight whatever. "For commentary generally favorable to the legislative veto, see Abou- rezk, Congressional Veto: A Contemporary Response to Executive En- croachment on Legislative Prerogatives, 52 Ind. L. J. 323 (1977); Cooper & Cooper, The Legislative Veto and the Constitution, 30 Geo. Wash. L. Rev. 467 (1962); Dry, The Congressional Veto and the Constitutional Separation of Powers, in The Presidency in the Constitutional Order 195 (J. Bessette & J. Tulis eds. 1981); Javits & Klein, supra n. 10, at 455; Miller & Knapp, The Congressional Veto: Preserving the Constitutional Framework, 52 Ind. L. J. 367 (1977); Nathanson, Separation of Powers and Administrative Law: Delegation, the Legislative Veto, and the "Inde- pendent" Agencies, 75 Nw. U. L. Rev. 1064 (1981); Newman & Keaton, Congress and the Faithful Execution of Laws-Should Legislators Super- vise Administrators?, 41 Calif. L. Rev. 565 (1953); Pearson, Oversight: A Vital Yet Neglected Congressional Function, 23 Kan. L. Rev. 277 (1975); Rodino, Congressional Review of Executive Action, 5 Seton Hall L. Rev. 489 (1974); Schwartz, Legislative Veto and the Constitution-A Reexami- nation, 46 Geo. Wash. L. Rev. 351 (1978); Schwartz, Legislative Control of Administrative Rules and Regulations: I. The American Experience, 30 N. Y. U. L. Rev. 1031 (1955); Stewart, Constitutionality of the Legislative Veto, 13 Harv. J. Legis. 593 (1976). For commentary generally unfavorable to the legislative veto, see J. Bolton, The Legislative Veto: Unseparating the Powers (1977); Bruff & Gellhorn, Congressional Control of Administrative Regulation: A Study of Legislative Vetoes, 90 Harv. L. Rev. 1369 (1977); Dixon, The Congres- sional Veto and Separation of Powers: The Executive On a Leash?, 56 N. C. L. Rev. 423 (1978); FitzGerald, Congressional Oversight or Con- gressional Foresight: Guidelines From the Founding Fathers, 28 Ad. L. Rev. 429 (1976); Ginnane, The Control of Federal Administration by Con- gressional Resolutions and Committees, 66 Harv. L. Rev. 569 (1953); [Footnotes 18 and 14 are on p. 977] INS v. CHADHA
919 WroTE, J., dissenting branches of the National Government. If the veto devices so flagrantly disregarded the requirements of Art. I as the Court today suggests, I find it incomprehensible that Con- gress, whose Members are bound by oath to uphold the Con- stitution, would have placed these mechanisms in nearly 200 separate laws over a period of 50 years. The reality of the situation is that the constitutional ques- tion posed today is one of immense difficulty over which the Executive and Legislative Branches-as well as scholars and judges-have understandably disagreed. That disagree- ment stems from the silence of the Constitution on the pre- cise question: The Constitution does not directly authorize or prohibit the legislative veto. Thus, our task should be to de- termine whether the legislative veto is consistent with the purposes of Art. I and the principles of separation of powers which are reflected in that Article and throughout the Con-
Henry, The Legislative Veto: In Search of Constitutional Limits, 16 Harv. J. Legis. 735 (1979); Martin, The Legislative Veto and the Responsible Exercise of Congressional Power, 68 Va. L. Rev. 253 (1982); Scalia, The Legislative Veto: A False Remedy For System Overload, 3 Regulation 19 (Nov.-Dec. 1979); Watson, supra n. 3, at 983; Comment, Congressional Over- sight of Administrative Discretion: Defining the Proper Role of the Legisla- tive Veto, 26 Am. U. L. Rev. 1018 (1977); Note, Congressional Veto of Ad- ministrative Action: The Probable Response to a Constitutional Challenge, 1976 Duke L. J. 285; Recent Developments, The Legislative Veto in the Arms Export Control Act of 1976,9 Law &Polry Intl Bus. 1029 (1977). "Compare Atkins v. United States, 214 Ct. Cl. 186, 556 F. 2d 1028 (1977) (upholding legislative veto provision in Federal Salary Act, 2 U. S. C. § 351 et seq.), cert. denied, 434 U. S. 1009 (1978), with Consumer Energy Council ofAmerica v. FERC, 218 U. S. App. D. C. 34, 673 F. 2d 425 (1982) (holding unconstitutional the legislative veto provision in the Natural Gas Policy Act of 1978, 15 U. S. C. §§ 3301-3342 (1976 ed., Supp. V)), appeals docketed, Nos. 81-2008, 81-2020, 81-2151, and 81-2171, and cert. pending, Nos. 82-177 and 82-209. "See, e. g., 6Op. Atty. Gen. 680, 683 (1854); Dept. of Justice, Memoran- dum re Constitutionality of Provisions in Proposed Reorganization Bills Now Pending in Congress, reprinted in S. Rep. No. 232, 81st Cong., 1st Sess., 19-20 (1949); Jackson, A Presidential Legal Opinion, 66 Harv. L. Rev. 1353 (1953); 43 Op. Atty. Gen. No. 10, p. 2 (1977). OCTOBER TERM, 1982
WHITE, J., dissenting 462 U. S. stitution."1 We should not find the lack of a specific constitu- tional authorization for the legislative veto surprising, and I would not infer disapproval of the mechanism from its absence. From the summer of 1787 to the present the Gov- ernment of the United States has become an endeavor far beyond the contemplation of the Framers. Only within the last half century has the complexity and size of the Federal Government's responsibilities grown so greatly that the Congress must rely on the legislative veto as the most effec- tive if not the only means to insure its role as the Nation's lawmaker. But the wisdom of the Framers was to anticipate that the Nation would grow and new problems of governance would require different solutions. Accordingly, our Federal Government was intentionally chartered with the flexibility to respond to contemporary needs without losing sight of fundamental democratic principles. This was the spirit in which Justice Jackson penned his influential concurrence in the Steel Seizure Case: "The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Con- stitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dis- persed powers into a workable government." Youngs- town Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952). This is the perspective from which we should approach the novel constitutional questions presented by the legislative veto. In my view, neither Art. I of the Constitution nor the doctrine of separation of powers is violated by this mecha-
5I limit my concern here to those legislative vetoes which require either one or both Houses of Congress to pass resolutions of approval or dis- approval, and leave aside the questions arising from the exercise of such powers by Committees of Congress. INS v. CHADHA
919 WHITE, J., dissenting nism by which our elected Representatives preserve their voice in the governance of the Nation. III The Court holds that the disapproval of a suspension of deportation by the resolution of one House of Congress is an exercise of legislative power without compliance with the prerequisites for lawmaking set forth in Art. I of the Consti- tution. Specifically, the Court maintains that the provisions of § 244(c)(2) are inconsistent with the requirement of bicam- eral approval, implicit in Art. I, § 1, and the requirement that all bills and resolutions that require the concurrence of both Houses be presented to the President, Art. I, § 7, cls. 2 and 3.16 I do not dispute the Court's truismatic exposition of these Clauses. There is no question that a bill does not become a law until it is approved by both the House and the Senate, and presented to the President. Similarly, I would not hesitate to strike an action of Congress in the form of a con- current resolution which constituted an exercise of original lawmaking authority. I agree with the Court that the Presi-
8I agree with JUsTICE REHNQUIST that Congress did not intend the one- House veto provision of § 244(c)(2) to be severable. Although the general rule is that the presence of a saving clause creates a presumption of divisi- bility, Champlin Refining Co. v. CorporationComm'n of Oklahoma, 286 U. S. 210, 235 (1932), I read the saving clause contained in § 406 of the Im- migration and Nationality Act as primarily pertaining to the severability of major parts of the Act from one another, not the divisibility of different provisions within a single section. Surely, Congress would want the natu- ralization provisions of the Act to be severable from the deportation sec- tions. But this does not support preserving § 244 without the legislative veto any more than a saving provision would justify preserving immigra- tion authority without quota limits. More relevant is the fact that for 40 years Congress has insisted on retaining a voice on individual suspension cases-it has frequently re- jected bills which would place final authority in the Executive Branch. It is clear that Congress believed its retention crucial. Given this history, the Court's rewriting of the Act flouts the will of Congress. OCTOBER TERM, 1982
WHITE, J., dissenting 462 U. S. dent's qualified veto power is a critical element in the distri- bution of powers under the Constitution, widely endorsed among the Framers, and intended to serve the President as a defense against legislative encroachment and to check the "passing of bad laws, through haste, inadvertence, or design." The Federalist No. 73, p. 458 (H. Lodge ed. 1888) (A. Hamilton). The records of the Convention reveal that it is the first purpose which figured most prominently but I acknowledge the vitality of the second. Id., at 443. I also agree that the bicameral approval required by Art. I, §§ 1, 7, "was of scarcely less concern to the Framers than was the Presidential veto," ante, at 948, and that the need to divide and disperse legislative power figures significantly in our scheme of Government. All of this, Part III of the Court's opinion, is entirely unexceptionable. It does not, however, answer the constitutional question before us. The power to exercise a legislative veto is not the power to write new law without bicameral approval or Presi- dential consideration. The veto must be authorized by stat- ute and may only negative what an Executive department or independent agency has proposed. On its face, the legisla- tive veto no more allows one House of Congress to make law than does the Presidential veto confer such power upon the President. Accordingly, the Court properly recognizes that it "must nevertheless establish that the challenged action under § 244(c)(2) is of the kind to which the procedural re- quirements of Art. I, § 7, apply" and admits that "[n]ot every action taken by either House is subject to the bicameralism and presentation requirements of Art. I." Ante, at 952.
A The terms of the Presentment Clauses suggest only that bills and their equivalent are subject to the requirements of bicameral passage and presentment to the President. Arti- cle I, § 7, cl. 2, stipulates only that "Every Bill which shall have passed the House of Representatives and the Senate, INS v. CHADHA
919 WHITE, J., dissenting shall, before it becomes a law, be presented to the President" for approval or disapproval, his disapproval then subject to being overridden by a two-thirds vote of both Houses. Sec- tion 7, c. 3, goes further: "Every Order, Resolution, or Vote to which the Con- currence of the Senate and House of Representatives. may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Represent- atives, according to the Rules and Limitations pre- scribed in the Case of a Bill." Although the Clause does not specify the actions for which the concurrence of both Houses is "necessary," the proceed- ings at the Philadelphia Convention suggest its purpose was to prevent Congress from circumventing the presentation re- quirement in the making of new legislation. James Madison observed that if the President's veto was confined to bills, it could be evaded by calling a proposed law a "resolution" or "vote" rather than a 'till." Accordingly, he proposed that "or resolve" should be added after "bill" in what is now Clause 2 of § 7. 2 M. Farrand, The Records of the Federal Convention of 1787, pp. 301-302 (1911). After a short dis- cussion on the subject, the amendment was rejected. On the following day, however, Randolph renewed the proposal in the substantial form as it now appears, and the motion passed. Id., at 304-305; 5 J. Elliot, Debates on the Federal Constitution 431 (1845). The chosen language, Madison's comment, and the brevity of the Convention's consideration, all suggest a modest role was intended for the Clause and no broad restraint on congressional authority was contemplated. See Stewart, Constitutionality of the Legislative Veto, 13 Harv. J. Legis. 593, 609-611 (1976). This reading is consist- ent with the historical background of the Presentment Clause itself which reveals only that the Framers were concerned OCTOBER TERM, 1982
WHITE, J., dissenting 462 U. S. with limiting the methods for enacting new legislation. The Framers were aware of the experience in Pennsylvania where the legislature had evaded the requirements attached to the passing of legislation by the use of "resolves," and the criticisms directed at this practice by the Council of Cen- sors. 7 There is no record that the Convention contem- plated, let alone intended, that these Art. I requirements would someday be invoked to restrain the scope of congres- 18 sional authority pursuant to duly enacted law.
"7The Pennsylvania Constitution required that all "bills of [a] public na- ture" had to be printed after being introduced and had to lie over until the following session of the legislature before adoption. Pa. Const., § 15 (1776). These printing and layover requirements applied only to "bills." At the time, measures could also be enacted as a resolve, which was al- lowed by the Constitution as "urgent temporary legislation" without such requirements. A. Nevins, The American States During and After the Revolution 152 (1969). Using this method, the Pennsylvania Legislature routinely evaded printing and layover requirements through adoption of resolves. Ibid. A 1784 report of a committee of the Council of Censors, a state body responsible for periodically reviewing the state government's adherence to its Constitution, charged that the procedures for enacting legislation had been evaded though the adoption of resolves instead of bills. Report of the Committee of the Council of Censors 13 (1784). See Nevins, supra,at 190. When three years later the federal Constitutional Convention assem- bled in Philadelphia, the delegates were reminded, in the course of discuss- ing the President's veto, of the dangers pointed out by the Council of Cen- sors Report. 5 J. Elliot, Debates on the Federal Constitution 430 (1845). Furthermore, Madison, who made the motion that led to the Presentment Clause, knew of the Council of Censors Report, The Federalist No. 50, p. 319 (H. Lodge ed. 1888), and was aware of the Pennsylvania experience. See The Federalist No. 48, supra, at 311-312. We have previously recog- nized the relevance of the Council of Censors Report in interpreting the S. Constitution.8 See Powell v. McCormack, 395 U. 486, 529-530 (1969). 'sAlthough the legislative veto was not a feature of congressional enact- ments until the 20th century, the practices of the first Congresses demon- strate that the constraints of Art. I were not envisioned as a constitutional straitjacket. The First Congress, for example, began the practice of arming its Committees with broad investigatory powers without the pas- sage of legislation. See A. Josephy, On the Hill: A History of the Amer- INS v. CHADHA
919 WHITE, J., dissenting When the Convention did turn its attention to the scope of Congress' lawmaking power, the Framers were expansive. The Necessary and Proper Clause, Art. I, § 8, cl. 18, vests
can Congress 81-83 (1979). More directly pertinent is the First Congress' treatment of the Northwest Territories Ordinance of 1787. The Ordi- nance, initially drafted under the Articles of Confederation on July 13, 1787, was the document which governed the territory of the United States northwest of the Ohio River. The Ordinance authorized the Territories to adopt laws, subject to disapproval in Congress. "The governor and judges, or a majority of them, shall adopt and publish in the district, such laws of the original states, criminal and civil, as may be necessary, and best suited to the circumstances of the district, and report them to Congress, from time to time; which laws shall be in force in the district until the organization of the general assembly therein, unless dis- approved of by Congress;but afterwards the legislature shall have author- ity to alter them as they shall think fit" (emphasis added). After the Constitution was ratified, the Ordinance was reenacted to con- form to the requirements of the Constitution. Act of Aug. 7, 1789, ch. 8, 1 Stat. 50-51. Certain provisions, such as one relating to appointment of officials by Congress, were changed because of constitutional concerns, but the language allowing disapproval by Congress was retained. Subsequent provisions for territorial laws contained similar language. See, e. g., 48 U. S. C. § 1478. Although at times Congress disapproved of territorial actions by passing legislation, see, e. g., Act of Mar. 3, 1807, ch. 44, 2 Stat. 444, on at least two occasions one House of Congress passed resolutions to disapprove ter- ritorial laws, only to have the other House fail to pass the measure for rea- sons pertaining to the subject matter of the bills. First, on February 16, 1795, the House of Representatives passed a concurrent resolution disap- proving in one sweep all but one of the laws that the Governors and judges of the Northwest Territory had passed at a legislative session on August 1, 1792. 4 Annals of Cong. 1227. The Senate, however, refused to concur. Id., at 830. See B. Bond, The Civilization of the Old Northwest 70-71 (1934). Second, on May 9, 1800, the House passed a resolution to disap- prove of a Mississippi territorial law imposing a license fee on taverns. H. R. Jour., 6th Cong., 1st Sess., 706 (1826 ed.). The Senate unsuccess- fully attempted to amend the resolution to strike down all laws of the Mis- sissippi Territory enacted since June 30, 1799. 5 C. Carter, Territorial Papers of the United States-Mississippi 94-95 (1937). The histories of the Territories, the correspondence of the era, and the congressional Re- ports contain no indication that such resolutions disapproving of territorial laws were to be presented to the President or that the authorization for OCTOBER TERM, 1982
WHITE, J., dissenting 462 U. S.
Congress with the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the fore- going Powers [the enumerated powers of § 8] and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." It is long settled that Congress may "exercise its best judgment in the selection of measures, to carry into execution the constitutional powers of the government," and "avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances." McCulloch v. Maryland, 4 Wheat. 316, 415-416, 420 (1819). B The Court heeded this counsel in approving the modern administrative state. The Court's holding today that all legislative-type action must be enacted through the law- making process ignores that legislative authority is routinely delegated to the Executive Branch, to the independent regulatory agencies, and to private individuals and groups. "The rise of administrative bodies probably has been the most significant legal trend of the last century.... They have become a veritable fourth branch of the Gov- ernment, which has deranged our three-branch legal the- ories ...." FTC v. Ruberoid Co., 343 U. S. 470, 487 (1952) (Jackson, J. dissenting). such a "congressional veto" in the Act of Aug. 7, 1789, was of doubtful constitutionality. The practices of the First Congress are not so clear as to be dispositive of the constitutional question now before us. But it is surely significant that this body, largely composed of the same men who authored Art. I and se- cured ratification of the Constitution, did not view the Constitution as for- bidding a precursor of the modern day legislative veto. See J. W. Hamp- ton & Co. v. United States, 276 U. S. 394, 412 (1928) ("In this first Congress sat many members of the Constitutional Convention of 1787. This Court has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our gov- ernment and framers of our Constitution were actively participating in public affairs, long acquiesced in, fixes the construction to be given its provisions"). INS v. CHADHA
919 WHITE, J., dissenting This Court's decisions sanctioning such delegations make clear that Art. I does not require all action with the effect of legislation to be passed as a law. Theoretically, agencies and officials were asked only to "fill up the details," and the rule was that "Congress cannot dele- gate any part of its legislative power except under the llmita-. tion of a prescribed standard." United States v. Chicago, M., St. P. & P. R. Co., 282 U. S. 311, 324 (1931). Chief Jus- tice Taft elaborated the standard in J. W. Hampton & Co. v. United States, 276 U. S. 394, 409 (1928): "If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power." In practice, however, restrictions on the scope of the power that could be delegated diminished and all but disappeared. In only two instances did the Court find an unconstitutional delegation. Panama Refining Co. v. Ryan, 293 U. S. 388 (1935); A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935). In other cases, the 'Intelligible principle" through which agencies have at- tained enormous control over the economic affairs of the country was held to include such formulations as "just and reasonable," Tagg Bros. & Moorhead v. United States, 280 U. S. 420 (1930); '"public interest," New York CentralSecuri- ties Corp. v. United States, 287 U. S. 12 (1932); "public con- venience, interest, or necessity," FederalRadio Comm'n v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266, 285 (1933); and "unfair methods of competition." FTC v. Gratz, 253 U. S. 421 (1920). The wisdom and the constitutionality of these broad dele- gations are matters that still have not been put to rest. But for present purposes, these cases establish that by virtue of congressional delegation, legislative power can be exercised by independent agencies and Executive departments without the passage of new legislation. For some time, the sheer amount of law-the substantive rules that regulate private conduct and direct the operation of government-made by OCTOBER TERM, 1982
WroTE, J., dissenting 462 U. S. the agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process. There is no question but that agency rulemaking is lawmaking in any functional or realistic sense of the term. The Administrative Procedure Act, 5 U. S. C. § 551(4), provides that a "rule" is an agency statement "designed to implement, interpret, or prescribe law or policy." When agencies are authorized to prescribe law through substantive rulemaking, the adminis- trator's regulation is not only due deference, but is accorded "legislative effect." See, e. g., Schweiker v. Gray Panthers, 453 U. S. 34, 43-44 (1981); Batterton v. Francis, 432 U. S. 416 (1977). 19 These regulations bind courts and officers of the Federal Government, may pre-empt state law, see, e. g., Fidelity Federal Savings & Loan Assn. v. De la (uesta, 458 U. S.141 (1982), and grant rights to and impose obligations on the public. In sum, they have the force of law. If Congress may delegate lawmaking power to independ- ent and Executive agencies, it is most difficult to understand Art. I as prohibiting Congress from also reserving a check on legislative power for itself. Absent the veto, the agencies receiving delegations of legislative or quasi-legislative power may issue regulations having the force of law without bicam-
"9 Legislative, or substantive, regulations are Issued by an agency pur- suant to statutory authority and... implement the statute, as, for exam- ple, the proxy rules issued by the Securities and Exchange Commission .... Such rules have the force and effect of law.' U. S. Dept. of Jus- tice, Attorney General's Manual on the Administrative Procedure Act 30, n. 3 (1947)." Batterton v. Francis, 432 U. S., at 425, n. 9. Substantive agency regulations are clearly exercises of lawmaking au- thority; agency interpretations of their statutes are only arguably so. But as Henry Monaghan has observed: "Judicial deference to agency 'interpre- tation' of law is simply one way of recognizing a delegation of lawmaking authority to an agency." Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 26 (1983) (emphasis deleted). See, e. g., NLRB v. Hearst Publications, Inc., 322 U. S. 111 (1944); NLRB v. Hendricks County RuralElectric Membership Corp., 454 U. S.170 (1981). INS v. CHADHA
919 WroTE, J., dissenting eral approval and without the President's signature. It is thus not apparent why the reservation of a veto over the exercise of that legislative power must be subject to a more exacting test. In both cases, it is enough that the initial stat- utory authorizations comply with the Art. I requirements. Nor are there strict limits on the agents that may receive such delegations of legislative authority so that it might be said that the Legislature can delegate authority to others but not to itself. While most authority to issue rules and regula- tions is given to the Executive Branch and the independent regulatory agencies, statutory delegations to private persons have also passed this Court's scrutiny. In Currin v. Wal- lace, 306 U. S. 1 (1939), the statute provided that restrictions upon the production or marketing of agricultural commodities was to become effective only upon the favorable vote by a prescribed majority of the affected farmers. United States v. Rock Royal Co-operative, Inc., 307 U. S.533, 577 (1939), upheld an Act which gave producers of specified commodities the right to veto marketing orders issued by the Secretary of Agriculture. Assuming Currin and Rock Royal Co- operative remain sound law, the Court's decision today sug- gests that Congress may place a "veto" power over suspensions of deportation in private hands or in the hands of an independ- ent agency, but is forbidden to reserve such authority for itself. Perhaps this odd result could be justified on other constitutional grounds, such as the separation of powers, but certainly it cannot be defended as consistent with the Court's view of the Art. I presentment and bicameralism commands. °
"As the Court acknowledges, the 'provisions of Art. I are integral parts of the constitutional design for the separation of powers." Ante, at 946. But these separation-of-powers concerns are that legislative power be ex- ercised by Congress, executive power by the President, and judicial power by the Courts. A scheme which allows delegation of legislative power to the President and the departments under his control, but forbids a check on its exercise by Congress itself obviously denigrates the separation- OCTOBER TERM, 1982
WHiTE, J., dissenting 462 U. S. The Court's opinion in the present cases comes closest to facing the reality of administrative lawmaking in considering the contention that the Attorney General's action in suspend- ing deportation under § 244 is itself a legislative act. The Court posits that the Attorney General is acting in an Art. II enforcement capacity under § 244. This characterization is at odds with Mahler v. Eby, 264 U. S. 32, 40 (1924), where the power conferred on the Executive to deport aliens was considered a delegation of legislative power. The Court sug- gests, however, that the Attorney General acts in an Art. II capacity because "[tlhe courts, when a case or controversy arises, can always 'ascertain whether the will of Congress has been obeyed,' Yakus v. United States, 321 U. S. 414, 425 (1944), and can enforce adherence to statutory standards." Ante, at 953, n. 16. This assumption is simply wrong, as the Court itself points out: "We are aware of no decision... where a federal court has reviewed a decision of the Attorney General suspending deportation of an alien pursuant to the standards set out in § 244(a)(1). This is not surprising, given that no party to such action has either the motivation or the right to appeal from it." Ante, at 957, n. 22. It is perhaps on the erroneous premise that judicial review may check abuses of the § 244 power that the Court also submits that "[t]he bicameral process is not necessary as a check on the Executive's administration of the laws because his adminis- trative activity cannot reach beyond the limits of the statute that created it-a statute duly enacted pursuant to Art. I, §§ 1, 7." Ante, at 953, n. 16. On the other hand, the Court's reasoning does persuasively explain why a resolution of dis- of-powers concerns underlying Art. I. To be sure, the doctrine of separa- tion of powers is also concerned with checking each branch's exercise of its characteristic authority. Section 244(c)(2) is fully consistent with the need for checks upon congressional authority, infta, at 994-996, and the legisla- tive veto mechanism, more generally is an important check upon Executive authority, supra, at 967-974. INS v. CHADHA
919 WmTE,J., dissenting approval under § 244(c)(2) need not again be subject to the bicameral process. Because it serves only to check the Attorney General's exercise of the suspension authority granted by § 244, the disapproval resolution-unlike the At- torney General's action--"cannot reach beyond the limits of the statute that created it-a statute duly enacted pursuant to Art. I." More fundamentally, even if the Court correctly charac- terizes the Attorney General's authority under § 244 as an Art. II Executive power, the Court concedes that certain ad- ministrative agency action, such as rulemaking, "may resem- ble lawmaking" and recognizes that "[tihis Court has referred to agency activity as being 'quasi-legislative' in character. Humphrey's Executor v. United States, 295 U. S. 602, 628 (1935)." Ante, at 953, n. 16. Such rules and adjudications by the agencies meet the Court's own definition of legislative action for they "alte[r] the legal rights, duties, and relations of persons... outside the Legislative Branch," ante, at 952, and involve "determinations of policy," ante, at 954. Under the Court's analysis, the Executive Branch and the independ- ent agencies may make rules with the effect of law while Con- gress, in whom the Framers confided the legislative power, Art. I, § 1, may not exercise a veto which precludes such rules from having operative force. If the effective function- ing of a complex modern government requires the delegation of vast authority which, by virtue of its breadth, is legisla- tive or "quasi-legislative" in character, I cannot accept that Art. I-which is, after all, the source of the nondelegation doctrine-should forbid Congress to qualify that grant with a 21 legislative veto.
1 The Court's other reasons for holding the legislative veto subject to the presentment and bicameral passage requirements require but brief discus- sion. First, the Court posits that the resolution of disapproval should be considered equivalent to new legislation because absent the veto authority of §244(c)(2) neither House could, short of legislation, effectively require the Attorney General to deport an alien once the Attorney General has OCTOBER TERM, 1982
WHITE, J., dissenting 462 U. S. C The Court also takes no account of perhaps the most rel- evant consideration: However resolutions of disapproval under § 244(c)(2) are formally characterized, in reality, a de- parture from the status quo occurs only upon the concurrence of opinion among the House, Senate, and President. Res- ervations of legislative authority to be exercised by Congress should be upheld if the exercise of such reserved authority is consistent with the distribution of and limits upon legislative power that Art. I provides. 1 As its history reveals, § 244(c)(2) withstands this analysis. Until 1917, Congress had not broadly provided for the de- portation of aliens. Act of Feb. 5, 1917, § 19, 39 Stat. 889. The Immigration Act of 1924 enlarged the categories of determined that the alien should remain in the United States. Ante, at 952-954. The statement is neither accurate nor meaningful. The Attor- ney General's power under the Act is only to "suspend" the order of deportation; the "suspension" does not cancel the deportation or adjust the alien's status to that of a permanent resident alien. Cancellation of deportation and adjustment of status must await favorable action by Con- gress. More important, the question is whether §244(c)(2) as written is constitutional, and no law is amended or repealed by the resolution of dis- approval which is, of course, expressly authorized by that section. The Court also argues that the legislative character of the challenged action of one House is confirmed by the fact that "when the Framers in- tended to authorize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action." Ante, at 955. Leaving aside again the above-refuted premise that all action with a legislative character requires passage in a law, the short answer is that all of these carefully defined ex- ceptions to the presentment and bicameralism strictures do not involve action of the Congress pursuant to a duly enacted statute. Indeed, for the most part these powers-those of impeachment, review of appointments, and treaty ratification--are not legislative powers at all. The fact that it was essential for the Constitution to stipulate that Congress has the power to impeach and try the President hardly demonstrates a limit upon Con- gress' authority to reserve itself a legislative veto, through statutes, over subjects within its lawmaking authority. INS v. CHADHA
919 WHITE, J., dissenting aliens subject to mandatory deportation, and substantially in- creased the likelihood of hardships to individuals by abolish- ing in most cases the previous time limitation of three years within which deportation proceedings had to be commenced. Immigration Act of 1924, ch. 190, 43 Stat. 153. Thousands of persons, who either had entered the country in more le- nient times or had been smuggled in as children, or had over- stayed their permits, faced the prospect of deportation. En- forcement of the Act grew more rigorous over the years with the deportation of thousands of aliens without regard to the mitigating circumstances of particular cases. See Mansfield, The Legislative Veto and the Deportation of Aliens, 1 Public Administration Review 281 (1941). Congress provided relief in certain cases through the passage of private bills. In 1933, when deportations reached their zenith, the Secre- tary of Labor temporarily suspended numerous deportations on grounds of hardship, 78 Cong. Rec. 11783 (1934), and pro- posed legislation to allow certain deportable aliens to remain in the country. H. R. 9725, 73d Cong., 2d Sess. (1934). The Labor Department bill was opposed, however, as "grant- [ing] too much discretionary authority," 78 Cong. Rec. 11790 (1934) (remarks of Rep. Dirksen), and it failed decisively. Id., at 11791. The following year, the administration proposed bills to au- thorize an interdepartmental committee to grant permanent residence to deportable aliens who had lived in the United States for 10 years or who had close relatives here. S.2969 and H. R. 8163, 74th Cong., 1st Sess. (1935). These bills were also attacked as an "abandonment of congressional con- trol over the deportation of undesirable aliens," H. R. Rep. No. 1110, 74th Cong., 1st Sess., pt. 2, p. 2 (1935), and were not enacted. A similar fate awaited a bill introduced in the 75th Congress that would have authorized the Secretary to grant permanent residence to up to 8,000 deportable aliens. The measure passed the House, but did not come to a vote in the Senate. H. R. 6391, 75th Cong., 1st Sess., 83 Cong. Rec. 8992-8996 (1938). OCTOBER TERM, 1982
WHITE, J., dissenting 462 U. S.
The succeeding Congress again attempted to find a leg- islative solution to the deportation problem. The initial House bill required congressional action to cancel individual deportations, 84 Cong. Rec. 10455 (1939), but the Senate amended the legislation to provide that deportable aliens should not be deported unless the Congress by Act or resolu- tion rejected the recommendation of the Secretary. H. R. 5138, § 10, as reported with amendments by S. Rep. No. 1721, 76th Cong., 3d Sess., 2 (1940). The compromise solution, the immediate predecessor to § 244(c), allowed the Attor- ney General to suspend the deportation of qualified aliens. Their deportation would be canceled and permanent resi- dence granted if the House and Senate did not adopt a con- current resolution of disapproval. S. Rep. No. 1796, 76th Cong., 3d Sess., 5-6 (1940). The Executive Branch played a major role in fashioning this compromise, see 86 Cong. Rec. 8345 (1940), and President Roosevelt approved the leg- islation, which became the Alien Registration Act of 1940, ch. 439, 54 Stat. 670. In 1947, the Department of Justice requested legislation authorizing the Attorney General to cancel deportations without congressional review. H. R. 2933, 80th Cong., 1st Sess. (1947). The purpose of the proposal was to "save time and energy of everyone concerned ... ." Regulating Powers of the Attorney General to Suspend Deportation of Aliens: Hearings on H. R. 245, H. R. 674, H. R. 1115, and H. R. 2933 before the Subcommittee on Immigration of the House Committee on the Judiciary, 80th Cong., 1st Sess., 34 (1947). The Senate Judiciary Committee objected, stating that "affirmative action by the Congress in all suspension cases should be required before deportation proceedings may be canceled." S. Rep. No. 1204, 80th Cong., 2d Sess., 4 (1948). See also H. R. Rep. No. 647, 80th Cong., 1st Sess., 2 (1947). Congress not only rejected the Department's re- quest for final authority but also amended the Immigration Act to require that cancellation of deportation be approved INS v. CHADHA
919 WrrE, J., dissenting by a concurrent resolution of the Congress. President Tru- man signed the bill without objection. Act of July 1, 1948, ch. 783, 62 Stat. 1206. Practice over the ensuing several years convinced Con- gress that the requirement of affirmative approval was "not workable ... and would, in time, interfere with the legis- lative work of the House." House Judiciary Committee, H. R. Rep. No. 362, 81st Cong., 1st Sess., 2 (1949). In pre- paring the comprehensive Immigration and Nationality Act of 1952, the Senate Judiciary Committee recommended that for certain classes of aliens the adjustment of status be sub- ject to the disapproval of either House; but deportation of an alien "who is of the criminal, subversive, or immoral classes or who overstays his period of admission," would be can- celed only upon a concurrent resolution disapproving the deportation. S. Rep. No. 1515, 81st Cong., 2d Sess., 610 (1950). Legislation reflecting this change was passed by both Houses, and enacted into law as part of the Immigration and Nationality Act of 1952 over President Truman's veto, which was not predicated on the presence of a legislative veto. Pub. L. 414, § 244(a), 66 Stat. 214. In subsequent years, the Congress refused further requests that the Attorney General be given final authority to grant discretionary relief for speci- fied categories of aliens, and § 244 remained intact to the present. Section 244(a)(1) authorizes the Attorney General, in his discretion, to suspend the deportation of certain aliens who are otherwise deportable and, upon Congress' approval, to adjust their status to that of aliens lawfully admitted for per- manent residence. In order to be eligible for this relief, an alien must have been physically present in the United States for a continuous period of not less than seven years, must prove he is of good moral character, and must prove that he or his immediate family would suffer "extreme hardship" if he is deported. Judicial review of a denial of relief may be sought. Thus, the suspension proceeding "has two phases: a OCTOBER TERM, 1982
WHITE, J., dissenting 462 U. S. determination whether the statutory conditions have been met, which generally involves a question of law, and a deter- mination whether relief shall be granted, which [ultimately] is confided to the sound discretion of the Attorney General [and his delegates]." 2 C. Gordon & H. Rosenfield, Immi- gration Law and Procedure § 7.9a(5), p. 7-134 (rev. ed. 1983). There is also a third phase to the process. Under § 244(c) (1) the Attorney General must report all such suspensions, with a detailed statement of facts and reasons, to the Con- gress. Either House may then act, in that session or the next, to block the suspension of deportation by passing a resolution of disapproval. § 244(c)(2). Upon congressional approval of the suspension-by its silence-the alien's per- manent status is adjusted to that of a lawful resident alien. The history of the Immigration and Nationality Act makes clear that § 244(c)(2) did not alter the division of actual au- thority between Congress and the Executive. At all times, whether through private bills, or through affirmative concur- rent resolutions, or through the present one-House veto, a permanent change in a deportable allen's status could be ac- complished only with the agreement of the Attorney General, the House, and the Senate. 2 The central concern of the presentment and bicameralism requirements of Art. I is that when a departure from the legal status quo is undertaken, it is done with the approval of the President and both Houses of Congress-or, in the event of a Presidential veto, a two-thirds majority in both Houses. This interest is fully satisfied by the operation of § 244(c)(2). The President's approval is found in the Attorney General's action in recommending to Congress that the deportation order for a given alien be suspended. The House and the Senate indicate their approval of the Executive's action by not passing a resolution of disapproval within the statutory period. Thus, a change in the legal status quo-the deport- ability of the alien-is consummated only with the approval INS v. CHADHA
919 WHITE, J., dissenting of each of the three relevant actors. The disagreement of any one of the three maintains the alien's pre-existing status: the Executive may choose not to recommend suspension; the House and Senate may each veto the recommendation. The effect on the rights and obligations of the affected individuals and upon the legislative system is precisely the same as if a private bill were introduced but failed to receive the neces- sary approval. "The President and the two Houses enjoy exactly the same say in what the law is to be as would have been true for each without the presence of the one-House veto, and nothing in the law is changed absent the concur- rence of the President and a majority in each House." Atkins v. United States, 214 Ct. Cl. 186, 250, 556 F. 2d 1028, 1064 (1977), cert. denied, 434 U. S. 1009 (1978). This very construction of the Presentment Clauses which the Executive Branch now rejects was the basis upon which the Executive Branch defended the constitutionality of the Reorganization Act, 5 U. S. C. § 906(a) (1982 ed.), which pro- vides that the President's proposed reorganization plans take effect only if not vetoed by either House. When the Depart- ment of Justice advised the Senate on the constitutionality of congressional review in reorganization legislation in 1949, it stated: "In this procedure there is no question involved of the Congress taking legislative action beyond its initial passage of the Reorganization Act." S. Rep. No. 232, 81st Cong., 1st Sess., 20 (1949) (Dept. of Justice Memorandum). This also represents the position of the Attorney General more recently.2
'In his opinion on the constitutionality of the legislative review provi- sions of the most recent reorganization statute, 5 U. S. C. §906(a) (1982 ed.), Attorney General Bell stated that "the statement in Article I, § 7, of the procedural steps to be followed in the enactment of legislation does not exclude other forms of action by Congress.... The procedures prescribed in Article I §7, for congressional action are not exclusive." 43 Op. Atty. Gen. No. 10, pp. 2-3 (1977). "[I]f the procedures provided in a given stat- ute have no effect on the constitutional distribution of power between OCTOBER TERM, 1982
WHITE, J., dissenting 462 U. S. Thus understood, § 244(c)(2) fully effectuates the purposes of the bicameralism and presentment requirements. I now briefly consider possible objections to the analysis. First, it may be asserted that Chadha's status before legis- lative disapproval is one of nondeportation and that the exer- cise of the veto, unlike the failure of a private bill, works a change in the status quo. This position plainly ignores the statutory language. At no place in § 244 has Congress dele- gated to the Attorney General any final power to determine which aliens shall be allowed to remain in the United States. Congress has retained the ultimate power to pass on such changes in deportable status. By its own terms, §244(a) states that whatever power the Attorney General has been delegated to suspend deportation and adjust status is to be exercisable only "[a]s hereinafter prescribed in this section." Subsection (c) is part of that section. A grant of "suspen- sion" does not cancel the alien's deportation or adjust the allen's status to that of a permanent resident alien. A suspension order is merely a "deferment of deportation," McGrath v. Kristensen, 340 U. S. 162, 168 (1950), which can mature into a cancellation of deportation and adjustment of status only upon the approval of Congress-by way of si- lence-under § 244(c)(2). Only then does the statute author- ize the Attorney General to "cancel deportation proceed- ings," § 244(c)(2), and "record the alien's lawful admission for permanent residence...." § 244(d). The Immigration and Naturalization Service's action, on behalf of the Attorney General, "cannot become effective without ratification by Congress." 2 C. Gordon & H. Rosenfield, Immigration Law the legislature and the executive," then the statute is constitutional. Id., at 3. In the case of the reorganization statute, the power of the President to refuse to submit a plan, combined with the power of either House of Congress to reject a submitted plan, suffices under the standard to make the statute constitutional. Although the Attorney General sought to limit his opinion to the reorganization statute, and the Executive opposes the instant statute, I see no Art. I basis to distinguish between the two. INS v. CHADHA
919 WHITE, J., dissenting and Procedure § 8.14, p. 8-121 (rev. ed. 1983). Until that ratification occurs, the Executive's action is simply a recom- mendation that Congress finalize the suspension-in itself, it works no legal change. Second, it may be said that this approach leads to the incongruity that the two-House veto is more suspect than its one-House brother. Although the idea may be initially counterintuitive, on close analysis, it is not at all unusual that the one-House veto is of more certain constitutionality than the two-House version. If the Attorney General's action is a proposal for legislation, then the disapproval of but a single House is all that is required to prevent its passage. Because approval is indicated by the failure to veto, the one-House veto satisfies the requirement of bicameral approval. The two-House version may present a different question. The concept that "neither branch of Congress, when acting sepa- rately, can lawfully exercise more power than is conferred by the Constitution on the whole body," Kilbourn v. Thompson, 103 U. S. 168, 182 (1881), is fully observed.2 Third, it may be objected that Congress cannot indicate its approval of legislative change by inaction. In the Court of Appeals' view, inaction by Congress "could equally imply endorsement, acquiescence, passivity, indecision, or indiffer- ence," 634 F. 2d 408, 435 (1980), and the Court appears to echo this concern, ante, at 958, n. 23. This objection appears more properly directed at the wisdom of the legislative veto than its constitutionality. The Constitution does not and cannot guarantee that legislators will carefully scrutinize leg- islation and deliberate before acting. In a democracy it is the electorate that holds the legislators accountable for the wisdom of their choices. It is hard to maintain that a private bill receives any greater individualized scrutiny than a reso-
Of course, when the authorizing legislation requires approval to be ex- pressed by a positive vote, then the two-House veto would clearly comply with the bicameralism requirement under any analysis. OCTOBER TERM, 1982
WHITE, J., dissenting 462 U. S. lution of disapproval under § 244(c)(2). Certainly the legisla- tive veto is no more susceptible to this attack than the Court's increasingly common practice of according weight to the failure of Congress to disturb an Executive or independ- ent agency's action. See n. 11, supra. Earlier this Term, the Court found it important that Congress failed to act on bills proposed to overturn the Internal Revenue Service's in- terpretation of the requirements for tax-exempt status under § 501(c)(3) of the Internal Revenue Code. Bob Jones Uni- versity v. United States, 461 U. S. 574, 600-601 (1983). If Congress may be said to have ratifed the Internal Revenue Service's interpretation without passing new legislation, Congress may also be said to approve a suspension of de- portation by the Attorney General when it fails to exercise its veto authority.'* The requirements of Art. I are not compro- mised by the congressional scheme. IV The Court of Appeals struck §244(c)(2) as violative of the constitutional principle of separation of powers. It is true that the purpose of separating the authority of Government is to prevent unnecessary and dangerous concentration of power in one branch. For that reason, the Framers saw fit to divide and balance the powers of Government so that each branch would be checked by the others. Virtually every part of our constitutional system bears the mark of this judgment.
2'The Court's doubts that Congress entertained this "arcane" theory when it enacted § 244(c)(2) disregards the fact that this is the historical basis upon which the legislative vetoes contained in the Reorganization Acts have been defended, n. 22, supra, and that the Reorganization Acts then provided the precedent articulated in support of other legislative veto provisions. See, e. g., 87 Cong. Rec. 735 (1941) (Rep. Dirksen) (citing Re- organization Act in support of proposal to include a legislative veto in Lend-Lease Act); H. R. Rep. No. 93-658, p. 42 (1973) (citing Reorganiza- tion Act as "sufficient precedent" for legislative veto provision for Im- poundment Control Act). INS v. CHADHA
919 WHITE, J., dissenting But the history of the separation-of-powers doctrine is also a history of accommodation and practicality. Apprehensions of an overly powerful branch have not led to undue prophy- lactic measures that handicap the effective working of the National Government as a whole. The Constitution does not contemplate total separation of the three branches of Govern- ment. Buckley v. Valeo, 424 U. S. 1, 121 (1976). "[A] her- metic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively." Ibid.' Our decisions reflect this judgment. As already noted, the Court, recognizing that modern government must address a formidable agenda of complex policy issues, countenanced the delegation of extensive legislative authority to Exec- utive and independent agencies. J. W. Hampton & Co. v. United States, 276 U. S. 394, 406 (1928). The separation- of-powers doctrine has heretofore led to the invalidation of Government action only when the challenged action violated some express provision in the Constitution. In Buckley v. Valeo, supra, at 118-124 (per curiam), and Myers v. United States, 272 U. S. 52 (1926), congressional action com- promised the appointment power of the President. See also Springer v. Philippine Islands, 277 U. S. 189, 200-201 (1928). In United States v. Klein, 13 Wall. 128 (1872), an Act of Congress was struck for encroaching upon judicial
Madison emphasized that the principle of separation of powers is pri- marily violated "where the whole power of one department is exercised by the same hands which possess the whole power of another department." The Federalist No. 47, pp. 325-3?6 (J. Cooke ed. 1961). Madison noted that the oracle of the separation doctrine, Montesquieu, in writing that the legislative, executive, and judicial powers should not be united "in the same person or body of magistrates," did not mean "that these depart- ments ought to have no partialagency in, or control over the acts of each other." Id., at 325 (emphasis in original). Indeed, according to Montes- quieu, the legislature is uniquely fit to exercise an additional function: "to examine in what manner the laws that it has made have been executed." W. Gwyn, The Meaning of Separation of Powers 102 (1965). 1000 OCTOBER TERM, 1982
WHITE, J., dissenting 462 U. S. power, but the Court found that the Act also impinged upon the Executive's exclusive pardon power. Art. II, § 2. Be- cause we must have a workable efficient Government, this is as it should be. This is the teaching of Nixon v. Administrator of Gen- eral Services, 433 U. S. 425 (1977), which, in rejecting a separation-of-powers objection to a law requiring that the Administrator take custody of certain Presidential papers, set forth a framework for evaluating such claims: "[I]n determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it-prevents the Executive Branch from accomplishing its constitution- ally assigned functions. United States v. Nixon, 418 U. S., at 711-712. Only where the potential for dis- ruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Con- gress." Id., at 443. Section 244(c)(2) survives this test. The legislative veto provision does not "preven[t] the Executive Branch from accomplishing its constitutionally assigned functions." First, it is clear that the Executive Branch has no "constitutionally assigned" function of suspending the deportation of aliens. "'[Olver no conceivable subject is the legislative power of Congress more complete than it is over' the admission of aliens." Kleindienst v. Mandel, 408 U. S. 753, 766 (1972), quoting Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 320, 339 (1909). Nor can it be said that the inher- ent function of the Executive Branch in executing the law is involved. The Steel Seizure Case resolved that the Art. II mandate for the President to execute the law is a directive to enforce the law which Congress has written. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). "The duty of the President to see that the laws be executed is a INS v. CHADHA 1001
919 WHITE, J., dissenting duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power." Myers v. United States, 272 U. S., at 177 (Holmes, J., dissenting); id., at 247 (Brandeis, J., dissenting). Here, §244 grants the Executive only a qualified suspension au- thority, and it is only that authority which the President is. constitutionally authorized to execute. Moreover, the Court believes that the legislative veto we consider today is best characterized as an exercise of legisla- tive or quasi-legislative authority. Under this characteriza- tion, the practice does not, even on the surface, constitute an infringement of executive or judicial prerogative. The At- torney General's suspension of deportation is equivalent to a proposal for legislation. The nature of the Attorney Gen- eral's role as recommendatory is not altered because § 244 provides for congressional action through disapproval rather than by ratification. In comparison to private bills, which must be initiated in the Congress and which allow a Presiden- tial veto to be overriden by a two-thirds majority in both Houses of Congress, § 244 augments rather than reduces the Executive Branch's authority. So understood, congressional review does not undermine, as the Court of Appeals thought, the "weight and dignity" that attends the decisions of the Executive Branch. Nor does §244 infringe on the judicial power, as JUSTICE POWELL would hold. Section 244 makes clear that Congress has reserved its own judgment as part of the statutory proc- ess. Congressional action does not substitute for judicial re- view of the Attorney General's decisions. The Act provides for judicial review of the refusal of the Attorney General to suspend a deportation and to transmit a recommendation to Congress. INS v. Jong Ha Wang, 450 U. S.139 (1981) (per curiam). But the courts have not been given the authority to review whether an alien should be given permanent status; review is limited to whether the Attorney General has prop- 1002 OCTOBER TERM, 1982
WHITE, J., dissenting 462 U. S.
erly applied the statutory standards for essentially denying the alien a recommendation that his deportable status be changed by the Congress. Moreover, there is no constitu- tional obligation to provide any judicial review whatever for a failure to suspend deportation. "The power of Congress, therefore, to expel, like the power to exclude aliens, or any specified class of aliens, from the country, may be exercised entirely through executive officers; or Congress may call in the aid of the judiciary to ascertain any contested facts on which an alien's right to be in the country has been made by Congress to depend." Fong Yue Ting v. United States, 149 U. S. 698, 713-714 (1893). See also Tutun v. United States, 270 U. S.568, 576 (1926); Ludecke v. Watkins, 335 U. S. 160, 171-172 (1948); Harisiades v. Shaughnessy, 342 U. S. 580, 590 (1952). I do not suggest that all legislative vetoes are necessarily consistent with separation-of-powers principles. A legisla- tive check on an inherently executive function, for example, that of initiating prosecutions, poses an entirely different question. But the legislative veto device here-and in many other settings-is far from an instance of legislative tyranny over the Executive. It is a necessary check on the unavoid- ably expanding power of the agencies, both Executive and in- dependent, as they engage in exercising authority delegated by Congress. V I regret that I am in disagreement with my colleagues on the fundamental questions that these cases present. But even more I regret the destructive scope of the Court's hold- ing. It reflects a profoundly different conception of the Con- stitution than that held by the courts which sanctioned the modern adminstrative state. Today's decision strikes down in one fell swoop provisions in more laws enacted by Con- gress than the Court has cumulatively invalidated in its his- tory. I fear it will now be more difficult to "insur[e] that the fundamental policy decisions in our society will be made not INS v. CHADHA
919 Appendix to opinion of WHITE, J., dissenting by an appointed official but by the body immediately respon- sible to the people," Arizona v. California, 373 U. S. 546, 626 (1963) (Harlan, J., dissenting in part). I must dissent. APPENDIX TO OPINION OF WHITE, J., DISSENTING STATUTES WITH PROVISIONS AUTHORIZING CONGRESSIONAL REVIEW This compilation, reprinted from the Brief for the United States Senate, identifies and describes briefly current statu- tory provisions for a legislative veto by one or both Houses of Congress. Statutory provisions for a veto by Committees of the Congress and provisions which require legislation (i. e., passage of a joint resolution) are not included. The 55 stat- utes in the compilation (some of which contain more than one provision for legislative review) are divided into six broad categories: foreign affairs and national security, budget, in- ternational trade, energy, rulemaldng and miscellaneous. "A. "FOREIGN AFFAIRS AND NATIONAL SECURITY "1. Act for International Development of 1961, Pub. L. No. 87-195, § 617, 75 Stat. 424, 444, [as amended,] 22 U. S. C. 2367 [(1976 ed., Supp. V)] (Funds made available for foreign assistance under the Act may be terminated by con- current resolution). "2. War Powers Resolution, Pub. L. No. 93-148, §5, 87 Stat. 555, 556-557 (1973), [as amended,] 50 U. S. C. 1544 [(1976 ed. and Supp. V)] (Absent declaration of war, Presi- dent may be directed by concurrent resolution to remove United States armed forces engaged in foreign hostilities.) "3. Department of Defense Appropriation Authorization Act, 1974, Pub. L. No. 93-155, § 807, 87 Stat. 605, 615 (1973), 50 U. S. C. 1431 (National defense contracts obligating the United States for any amount in excess of $25,000,000 may be disapproved by resolution of either House). 1004 OCTOBER TERM, 1982
Appendix to opinion of WHITE, J., dissenting 462 U. S. "4. Department of Defense Appropriation Authorization Act, 1975, Pub. L. No. 93-365, §709(c), 88 Stat. 399, 408 (1974), [as amended,] 50 U. S. C. app. 2403-1(c) [(1976 ed., Supp. V)] (Applications for export of defense goods, tech- nology or techniques may be disapproved by concurrent resolution). "5. H. R. J. Res. 683, Pub. L. No. 94-110, § 1, 89 Stat. 572 (1975), 22 U. S. C. 2441 note (Assignment of civilian person- nel to Sinai may be disapproved by concurrent resolution). "6. International Development and Food Assistance Act of 1975, Pub. L. No. 94-161, § 310, 89 Stat. 849, 860, [as amended,] 22 U. S. C. 2151n [(1976 ed., Supp. V)] (Foreign assistance to countries not meeting human rights standards may be terminated by concurrent resolution). "7. International Security Assistance and Arms [Export] Control Act of 1976, Pub. L. No. 94-329, § [211(a)], 90 Stat. 729, 743, [as amended,] 22 U. S. C. 2776(b) [(1976 ed. and Supp. V)] (President's letter of offer to sell major defense equipment may be disapproved by concurrent resolution). "8. National Emergencies Act, Pub. L. No. 94-412, § 202, 90 Stat. 1255 (1976), 50 U. S. C. 1622 (Presidentially de- clared national emergency may be terminated by concurrent resolution). "9. International Navigational Rules Act of 1977, Pub. L. No. 95-75, § 3(d), 91 Stat. 308, 33 U. S. C. § 1602(d) [(1976 ed., Supp. V)] (Presidential proclamation of International Regulations for Preventing Collisions at Sea may be disap- proved by concurrent resolution). "10. International Security Assistance Act of 1977, Pub. L. No. 95-92, § 16, 91 Stat. 614, 622, 22 U. S. C. § 2753(d)(2) (President's proposed transfer of arms to a third country may be disapproved by concurrent resolution). "11. Act of December [28], 1977, Pub. L. No. 95-223, § [207(b)], 91 Stat. 1625, 1628, 50 U. S. C. 1706(b) [(1976 ed., Supp. V)] (Presidentially declared national emergency and exercise of conditional powers may be terminated by concur- rent resolution). INS v. CHADHA
919 Appendix to opinion of WHrTS, J., dissenting "12. Nuclear Non-Proliferation Act of 1978, Pub. L. No. 95- 242, §§ [303(a), 304(a)], 306, 307, 401, 92 Stat. 120, 130, 134, 137-38, 139, 144, 42 U. S. C. §§ 2160(f), 2155(b), 2157(b), [2158] 2153(d) [(1976 ed., Supp. V)] (Cooperative agreements concerning storage and disposition of spent nuclear fuel, pro- posed export of nuclear facilities, materials or technology and proposed agreements for international cooperation in nuclear reactor development may be disapproved by concurrent resolution). "B. "BUDGET "13. Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344, § 1013, 88 Stat. 297, 334-35, 31 U. S. C. 1403 (The proposed deferral of budget authority provided for a specific project or purpose may be disapproved by an impoundment resolution by either House). "C. "INTERNATIONAL TRADE "14. Trade Expansion Act of 1962, Pub. L. No. 87-794, § 351, 76 Stat. 872, 899, 19 U. S. C. 1981(a) (Tariff or duty recommended by Tariff Commission may be imposed by con- current resolution of approval). "15. Trade Act of 1974, Pub. L. No. 93-618, §§ 203(c), 302(b), 402(d), 407, 88 Stat. 1978, 2016, 2043, 2057-60, 2063-64, [as amended,] 19 U. S. C. 2253(c), 2412(b), 2432, [2437 (1976 ed. and Supp. V)] (Proposed Presidential actions on import relief and actions concerning certain countries may be disapproved by concurrent resolution; various Presiden- tial proposals for waiver extensions and for extension of non- discriminatory treatment to products of foreign countries may be disapproved by simple (either House) or concurrent resolutions). "16. Export-Import Bank Amendments of 1974, Pub. L. No. 93-646, § 8, 88 Stat. 2333, 2336, 12 U. S. C. [635e(b)] (Presidentially proposed limitation for exports to USSR in 1006 OCTOBER TERM, 1982
Appendix to opinion of WroTE, J., dissenting 462 U. S. excess of $300,000,000 must be approved by concurrent resolution). "D. "ENERGY "17. Act of November 16, 1973, Pub. L. No. 93-153, § 101, 87 Stat. 576, 582, 30 U. S. C. 185(u) (Continuation of oil ex- ports being made pursuant to President's finding that such exports are in the national interest may be disapproved by concurrent resolution). "18. Federal Nonnuclear Energy Research and Devel- opment Act of 1974, Pub. L. No. 93-577, § 12, 88 Stat. 1878, 1892-1893, 42 U. S. C. 5911 (Rules or orders proposed by the President concerning allocation or acquisition of es- sential materials may be disapproved by resolution of either House). "19. Energy Policy and Conservation Act, Pub. L. No. 94- 163, § 551, 89 Stat. 871, 965 (1975), 42 U. S. C. 6421(c) (Cer- tain Presidentially proposed 'energy actions' involving fuel economy and pricing may be disapproved by resolution of either House). "20. Naval Petroleum Reserves Production Act of 1976, Pub. L. No. 94-258, § [201(3)], 90 Stat. 303, 309, 10 U. S. C. 7422(c)(2)(C) (President's extension of production period for naval petroleum reserves may be disapproved by resolution of either House).
"22. Department of Energy Act of 1978-Civilian Applica- tions, Pub. L. No. 95-238, §§ 107, 207(b), 92 Stat. 47, 55, 70, 22 U. S. C. 3224a, 42 U. S. C. 5919(m) [(1976 ed., Supp. V)] (International agreements and expenditures by Secretary of Energy of appropriations for foreign spent nuclear fuel stor- age must be approved by concurrent resolution, if not con- sented to by legislation;) (plans for such use of appropriated funds may be disapproved by either House;) (financing in excess of $50,000,000 for demonstration facilities must be approved by resolution in both Houses). INS v. CHADHA 1007
919 Appendix to opinion of WroTE, J., dissenting "23. Outer Continental Shelf Lands Act Amendments of 1978, Pub. L. No. 95-372, §§205(a), 208, 92 Stat. 629, 641, 668, 43 U. S. C. §§1337(a), 1354(c) [(1976 ed., Supp. V)] (Establishment by Secretary of Energy of oil and gas lease bidding system may be disapproved by resolution of either House;) (export of oil and gas may be disapproved by concur- rent resolution). "24. Natural Gas Policy Act of 1978, Pub. L. No. 95-621, §§ 122(c)(1) and (2), 202(c), 206(d)(2), 507, 92 Stat. 3350, 3370, 3371, 3372, 3380, 3406, 15 U. S. C. 3332, 3342(c), 3346(d)(2), 3417 [(1976 ed., Supp. V)] (Presidential reimposition of natu- ral gas price controls may be disapproved by concurrent reso- lution;) (Congress may reimpose natural gas price controls by concurrent resolution;) (Federal Energy Regulatory Com- mission (FERC) amendment to pass through incremental costs of natural gas, and exemptions therefrom, may be dis- approved by resolution of either House;) (procedure for con- gressional review established). "25. Export Administration Act of 1979, Pub. L. No. 96- 72, § [7(d)(2)(B)] 7(g)(3), 93 Stat. 503, 518, 520, 50 U. S. C. app. 2406(d)(2)(B), 2406(g)(3) [(1976 ed., Supp. V)] (Presi- dent's proposal to [export] domestically produce[d] crude oil must be approved by concurrent resolution;) (action by Secretary of Commerce to prohibit or curtail export of agricultural commodities may be disapproved by concurrent resolution). "26. Energy Security Act, Pub. L. No. 96-294, §§ 104 (b)(3), 104(e), 126(d)(2), 126(d)(3), 128, 129, 132(a)(3), 133 (a)(3), 137(b)(5), 141(d), 179(a), 803, 94 Stat. 611, 618, 619, 620, 623-26, 628-29, 649, 650-52, 659, 660, 664, 666, 679, 776 (1980) 50 U. S. C. app. 2091-93, 2095, 2096, 2097, 42 U. S. C. 8722, 8724, 8725, 8732, 8733, 8737, 8741, 8779, 6240 [(1976 ed., Supp. V)] (Loan guarantees by Departments of Defense, Energy and Commerce in excess of specified amounts may be disapproved by resolution of either House;) (President's proposal to provide loans or guarantees in excess 1008 OCTOBER TERM, 1982
Appendix to opinion of WHITE, J., dissenting 462 U. S. of established amounts may be disapproved by resolution of either House;) (proposed award by President of individual contracts for purchase of more than 75,000 barrels per day of crude oil may be disapproved by resolution of either House;) (President's proposals to overcome energy shortage through synthetic fuels development, and individual contracts to pur- chase more than 75,000 barrels per day, including use of loans or guarantees, may be disapproved by resolution of either House;) (procedures for either House to disapprove proposals made under Act are established;) (request by Synthetic Fuels Corporation (SFC) for additional time to submit its compre- hensive strategy may be disapproved by resolution of either House;) (proposed amendment to comprehensive strategy by SFC Board of Directors may be disapproved by concurrent resolution of either House or by failure of both Houses to pass concurrent resolution of approval;) (procedure for either House to disapprove certain proposed actions of SFC is es- tablished;) (procedure for both Houses to approve by concur- rent resolution or either House to reject concurrent resolu- tion for proposed amendments to comprehensive strategy of SFC is established;) (proposed loans and loan guarantees by SFC may be disapproved by resolution of either House;) (ac- quisition by SFC of a synthetic fuels project which is receiv- ing financial assistance may be disapproved by resolution of either House;) (SFC contract renegotiations exceeding initial cost estimates by 175% may be disapproved by resolution of either House;) (proposed financial assistance to synthetic fuel projects in Western Hemisphere outside United States may be disapproved by resolution of either House;) (President's request to suspend provisions requiring build up of reserves and limiting sale or disposal of certain crude oil reserves must be approved by resolution of both Houses). "E. "RULEMAKING "27. Education Amendments of 1974, Pub. L. No. 93-380, § [509(a)], 88 Stat. 484, 567, 20 U. S. C. 1232(d)(1) [(1976 ed., INS v. CHADHA 1009
919 Appendix to opinion of WHITE, J., dissenting Supp. V)] (Department of Education regulations may be dis- approved by concurrent resolution). "28. Federal Education Campaign Act Amendments of. 1979, Pub. L. No. 96-187, § 109, 93 Stat. 1339, 1364, 2 U. S. C. 438(d)(2) [(1976 ed., Supp. V)] (Proposed rules and regulations of the Federal Election Commission may be dis- approved by resolution of either House). "29. Act of January 2, 1975, Pub. L. No. 93-595, § [2(a)(1)], 88 Stat. 1926, 1948, 28 U. S. C. 2076 (Proposed amendments by Supreme Court of Federal Rules of Evidence may be disapproved by resolution of either House). "30. Act of August 9, 1975, Pub. L. No. 94-88, § 208, 89 Stat. 433, 436-37, 42 U. S. C. 602 note (Social Security standards proposed by Secretary of Health and Human Serv- ices may be disapproved by either House). "31. Airline Deregulation Act of 1978, Pub. L. No. 95-504, §43(f)(3), 92 Stat. 1705, 1752, 49 U. S. C. 1552(f) [(1976 ed., Supp. V)] (Rules or regulations governing employee protec- tion program may be disapproved by resolution of either House). "32. Education Amendments of 1978, Pub. L. No. 95-561, §§ 1138, [212(b)], 1409, 92 Stat. 2143, 2327, 2341, 2369, 25 U. S. C. 2018, 20 U. S. C. [927], 1221-3(e) [(1976 ed., Supp. V)] (Rules and regulations proposed under the Act may be disapproved by concurrent resolution). "33. Civil Rights of Institutionalized Persons Act, Pub. L. No. 96-247, § 7(b)(1), 94 Stat. 349, 352-353 (1980) 42 U. S. C. 1997e [(1976 ed., Supp. V)] (Attorney General's proposed standards for resolution of grievances of adults confined in correctional facilities may be disapproved by resolution of either House). "34. Federal Trade Commission Improvements Act of 1980, Pub. L. No. 96-252, § 21(a), 94 Stat. 374, 393, 15 U. S. C. 57a-1 [(1976 ed., Supp. V)] (Federal Trade Commis- sion rules may be disapproved by concurrent resolution). "35. Department of Education Organization Act, Pub. L. No. 96-88, § 414(b), 93 Stat. 668, 685 (1979), 20 U. S. C. 3474 1010 OCTOBER TERM, 1982
Appendix to opinion of WHITE, J., dissenting 462 U. S.
[(1976 ed., Supp. V)] (Rules and regulations promulgated with respect to the various functions, programs and responsibili- ties transferred by this Act, may be disapproved by concur- rent resolution). "36. Multiemployer Pension Plan Amendments Act of 1980, Pub. L. No. 96-364, § 102, 94 Stat. 1208, 1213, 29 U. S. C. 1322a [(1976 ed., Supp. V)] (Schedules proposed by Pension Benefit Guaranty Corporation (PBGO) which requires an in- crease in premiums must be approved by concurrent resolu- tion;) (revised premium schedules for voluntary supplemental coverage proposed by PBGC may be disapproved by concur- rent resolution). "37. Farm Credit Act Amendments of 1980, Pub. L. No. 96-592, § 508, 94 Stat. 3437, 3450, 12 U. S. C. [2252 (1976 ed., Supp. V)] (Certain Farm Credit Administration regulations may be disapproved by concurrent resolution or delayed by resolution of either House.) "38. Comprehensive Environmental Response, Compensa- tion, and Liability Act of 1980, Pub. L. No. 96-510, § 305, 94 Stat. 2767, 2809, 42 U. S. C. 9655 [(1976 ed., Supp. V)] (Environmental Protection Agency regulations concerning hazardous substances releases, liability and compensation may be disapproved by concurrent resolution or by the adop- tion of either House of a concurrent resolution which is not disapproved by the other House). "39. National Historic Preservation Act Amendments of 1980, Pub. L. No. 96-515, § 501, 94 Stat. 2987, 3004, 16 U. S. C. 470w-6 [(1976 ed., Supp. V)] (Regulation proposed by the Secretary of the Interior may be disapproved by con- current resolution). "40. Coastal Zone Management Improvement Act of 1980, Pub. L. No. 96-464, § 12, 94 Stat. 2060, 2067, 16 U. S. C. 1463a [(1976 ed., Supp. V)] (Rules proposed by the Secretary of Commerce may be disapproved by concurrent resolution). "41. Act of December 17, 1980, Pub. L. No. 96-539, § 4, 94 Stat. 3194, 3195, 7 U. S. C. 136w [(1976 ed., Supp. V)] (Rules or regulations promulgated by the Administrator of the Envi- INS v. CHADHA
919 Appendix to opinion of WHITE, J., dissenting ronmental Protection Agency under the Federal Insecticide, Fungicide and Rodenticide Act may be disapproved by con- current resolution). "42. Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, §§ 533(a)(2), 1107(d), 1142, 1183(a)(2), 1207, 95 Stat. 357, 453, 626, 654, 659, 695, 718-20, 20 U. S. C.. 1089, 23 U. S. C. 402(j), 45 U. S. C. 761, 767, 564(c)(3), 15 U. S. C. 2083, 1276, 1204 [(1976 ed., Supp. V)] (Secretary of Education's schedule of expected family contributions for Pell Grant recipients may be disapproved by resolution of either House;) (rules promulgated by Secretary of Transportation for programs to reduce accidents, injuries and deaths may be disapproved by .resolution of either House;) (Secretary of Transportation's plan for the sale of government's common stock in rail system may be disapproved by concurrent reso- lution;) (Secretary of Transportation's approval of freight transfer agreements may be disapproved by resolution of either House;) (amendments to Amtrak's Route and Service Criteria may be disapproved by resolution of either House;) (Consumer Product Safety Commission regulations may be disapproved by concurrent resolution of both Houses, or by concurrent resolution of disapproval by either House if such resolution is not disapproved by the other House).
"F. "MISCELLANEOUS "43. Federal Civil Defense Act of 1950, Pub. L. No. 81- 920, § 201, 64 Stat. 1245, 1248, [as amended,] 50 app. U. S. C. 2281(g) [(1976 ed., Supp. V)] (Interstate civil defense compacts may be disapproved by concurrent resolution). "44. National Aeronautics and Space Act of 1958, Pub. L. No. 85-568, § [302(c)], 72 Stat. 426, 433, 42 U. S. C. 2453 (President's transfer to National Air and Space Administra- tion of functions of other departments and agencies may be disapproved by concurrent resolution). 1012 OCTOBER TERM, 1982
Appendix to opinion of WroTE, J., dissenting 462 U. S.
"45. Federal Pay Comparability Act of 1970, Pub. L. No. 91-656, § 3, 84 Stat. 1946, 1949, 5 U. S. C. 5305 (Presi- dent's alternative pay plan may be disapproved by resolution .of either House). "46. Act of October 19, 1973, Pub. L. No. 93-134, § 5, 87 Stat. 466, 468, 25 U. S. C. 1405 (Plan for use and distribution of funds paid in satisfaction of judgment of Indian Claims Commission or Court of Claims may be disapproved by reso- lution of either House). "47. Menominee Restoration Act, Pub. L. No. 93-197, § 6, 87 Stat. 770, 773 (1973), 25 U. S. C. 903d(b) (Plan by Sec- retary of the Interior for assumption of the assets [of] the Menominee Indian corporation may be disapproved by reso- lution of either House). "48. District of Columbia Self-Government and Govern- mental Reorganization Act, Pub. L. No. 93-198, §§303, 602(c)(1) and (2), 87 Stat. 774, 784, 814 (1973) (District of Co- lumbia Charter amendments ratified by electors must be ap- proved by concurrent resolution;) (acts of District of Colum- bia Council may be disapproved by concurrent resolution;) (acts of District of Columbia Council under certain titles of D. C. Code may be disapproved by resolution of either House). "49. Act of December 31, 1975, Pub. L. No. 94-200, § 102, 89 Stat. 1124, 12 U. S. C. 461 note (Federal Reserve System Board of Governors may not eliminate or reduce interest rate differentials between banks insured by Federal Deposit In- surance Corporation and associations insured by Federal Savings and Loan Insurance Corporations without concur- rent resolution of approval). "50. Veterans' Education and Employment Assistance Act of 1976, Pub. L. No. 94-502, § 408, 90 Stat. 2383, 2397-98, 38 U. S. C. 1621 note (President's recommendation for contin- ued enrollment period in Armed Forces educational assist- ance program may be disapproved by resolution of either House). INS v. CHADHA 1013
919 REHNQUIST, J., dissenting "51. Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, §§ 203(c), 204(c)(1), 90 Stat. 2743, 2750, 2752, 43 U. S. C. 1713(c), 1714 (Sale of public lands in excess of two thousand five hundred acres and withdrawal of public lands aggregating five thousand acres or more may be disap- proved by concurrent resolution). "52. Emergency Unemployment Compensation Extension Act of 1977, Pub. L. No. 95-19, § [401(a)] 91 Stat. 39, 45, 2 U. S. C. 359 [(1976 ed., Supp. V)] (President's recommenda- tions regarding rates of salary payment may be disapproved by resolution of either House). "53. Civil Service Reform Act of 1978, Pub. L. No. 95-454, §415, 92 Stat. 1111, 1179, 5 U. S. C. 3131 note [(1976 ed., Supp. V)] (Continuation of Senior Executive Service may be disapproved by concurrent resolution). "54. Full Employment and Balanced Growth Act of 1978, Pub. L. No. 95-523, § 304(b), 92 Stat. 1887, 1906, 31 U. S. C. 1322 [(1976 ed., Supp. V)] (Presidential timetable for re- ducing unemployment may be superseded by concurrent resolution). "55. District of Columbia Retirement Reform Act, Pub. L. No. 96-122, § 164, 93 Stat. 866, 891-92 (1979) (Required re- ports to Congress on the District of Columbia retirement pro- gram may be rejected by resolution of either House). "56. Act of August 29, 1980, Pub. L. No. 96-332, § 2, 94 Stat. 1057, 1058, 16 U. S. C. 1432 [(1976 ed., Supp. V)] (Des- ignation of marine sanctuary by the Secretary of Commerce may be disapproved by concurrent resolution)."
JUSTICE REHNQUIST, with whom JUSTICE WHITE joins, dissenting. A severability clause creates a presumption that Con- gress intended the valid portion of the statute to remain in force when one part is found to be invalid. Carterv. Carter Coal Co., 298 U. S.238, 312 (1936); Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U. S. 210, 235 1014 OCTOBER TERM, 1982
REHNQUIST, J., dissenting 462 U. S. (1932). A severability clause does not, however, conclu- sively resolve the issue. "[T]he determination, in the end, is reached by" asking "[wihat was the intent of the lawmakers," Carter, supra, at 312, and "will rarely turn on the presence or absence of such a clause." United States v. Jackson, 390 U. S. 570, 585, n. 27 (1968). Because I believe that Congress did not intend the one-House veto provision of § 244(c)(2) to be severable, I dissent. Section 244(c)(2) is an exception to the general rule that an alien's deportation shall be suspended when the Attorney General finds that statutory criteria are met. It is severable only if Congress would have intended to permit the Attorney General to suspend deportations without it. This Court has held several times over the years that exceptions such as this are not severable because "by rejecting the exceptions intended by the legislature ... the statute is made to enact what confessedly the legislature never meant. It confers upon the statute a positive operation beyond the legislative intent, and beyond what anyone can say it would have enacted in view of the illegality of the exceptions." Spraigue v. Thompson, 118 U. S.90, 95 (1886). By severing § 244(c)(2), the Court permits suspension of deportation in a class of cases where Congress never stated that suspension was appropriate. I do not believe we should expand the statute in this way without some clear indication that Congress intended such an expansion. As the Court said in Davis v. Wallace, 257 U. S. 478, 484-485 (1922): "Where an excepting provision in a statute is found unconstitutional, courts very generally hold that this does not work an enlargement of the scope or operation of other provisions with which that provision was en- acted and which was intended to qualify or restrain. The reasoning on which the decisions proceed is illus- trated in State ex rel. McNeal v. Dombaugh, 20 Ohio St. 167, 174. In dealing with a contention that a statute INS v. CHADHA 1015
919 REHNQUIST, J., dissenting
containing an unconstitutional provision should be con- strued as if the remainder stood alone, the court there said: 'This would be to mutilate the section and garble its meaning. The legislative intention must not be con- founded with their power to carry that intention into effect. To refuse to give force and vitality to a provision of law is one thing, and to refuse to read it is a very dif- ferent thing. It is by a mere figure of speech that we say an unconstitutional provision of a statute is "stricken out." For all the purposes of construction it is to be regarded as part of the act. The meaning of the legisla- ture must be gathered from all that they have said, as well from that which is ineffectual for want of power, as from that which is authorized by law.' "Here the excepting provision was in the statute when it was enacted, and there can be no doubt that the legis- lature intended that the meaning of the other provisions should be taken as restricted accordingly. Only with that restricted meaning did they receive the legislative sanction which was essential to make them part of the statute law of the State; and no other authority is compe- tent to give them a larger application." See also Frost v. Corporation Comm'n of Oklahoma, 278 U. S. 515, 525 (1929). The Court finds that the legislative history of § 244 shows that Congress intended §244(c)(2) to be severable because Congress wanted to relieve itself of the burden of private bills. But the history elucidated by the Court shows that Congress was unwilling to give the Executive Branch per- mission to suspend deportation on its own. Over the years, Congress consistently rejected requests from the Executive for complete discretion in this area. Congress always in- sisted on retaining ultimate control, whether by concurrent resolution, as in the 1948 Act, or by one-House veto, as in the present Act. Congress has never indicated that it would be willing to permit suspensions of deportation unless it could retain some sort of veto. 1016 OCTOBER TERM, 1982
REHNQUIST, J., dissenting 462 U. S.
It is doubtless true that Congress has the power to provide for suspensions of deportation without a one-House veto. But the Court has failed to identify any evidence that Con- gress intended to exercise that power. On the contrary, Congress' continued insistence on retaining control of the suspension process indicates that it has never been disposed to give the Executive Branch a free hand. By severing § 244(c)(2) the Court has "'confounded"' Congress' "'inten- tion'" to permit suspensions of deportation "'with their power to carry that intention into effect."' Davis, supra, at 484, quoting State ex rel. McNeal v. Dombaugh, 20 Ohio St. 167, 174 (1870). Because I do not believe that § 244(c)(2) is severable, I would reverse the judgment of the Court of Appeals. (Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES
Syllabus
TRUMP, PRESIDENT OF THE UNITED STATES, ET AL. v. HAWAII ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 17–965. Argued April 25, 2018—Decided June 26, 2018 In September 2017, the President issued Proclamation No. 9645, seek- ing to improve vetting procedures for foreign nationals traveling to the United States by identifying ongoing deficiencies in the infor- mation needed to assess whether nationals of particular countries present a security threat. The Proclamation placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate. Foreign states were selected for inclusion based on a re- view undertaken pursuant to one of the President’s earlier Executive Orders. As part of that review, the Department of Homeland Securi- ty (DHS), in consultation with the State Department and intelligence agencies, developed an information and risk assessment “baseline.” DHS then collected and evaluated data for all foreign governments, identifying those having deficient information-sharing practices and presenting national security concerns, as well as other countries “at risk” of failing to meet the baseline. After a 50-day period during which the State Department made diplomatic efforts to encourage foreign governments to improve their practices, the Acting Secretary of Homeland Security concluded that eight countries—Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—remained deficient. She recommended entry restrictions for certain nationals from all of those countries but Iraq, which had a close cooperative re- lationship with the U. S. She also recommended including Somalia, which met the information-sharing component of the baseline stand- ards but had other special risk factors, such as a significant terrorist presence. After consulting with multiple Cabinet members, the Pres- ident adopted the recommendations and issued the Proclamation.
2 TRUMP v. HAWAII
Syllabus
Invoking his authority under 8 U. S. C. §§1182(f) and 1185(a), he de- termined that certain restrictions were necessary to “prevent the en- try of those foreign nationals about whom the United States Gov- ernment lacks sufficient information” and “elicit improved identity- management and information-sharing protocols and practices from foreign governments.” The Proclamation imposes a range of entry re- strictions that vary based on the “distinct circumstances” in each of the eight countries. It exempts lawful permanent residents and pro- vides case-by-case waivers under certain circumstances. It also di- rects DHS to assess on a continuing basis whether the restrictions should be modified or continued, and to report to the President every 180 days. At the completion of the first such review period, the Pres- ident determined that Chad had sufficiently improved its practices, and he accordingly lifted restrictions on its nationals. Plaintiffs—the State of Hawaii, three individuals with foreign rela- tives affected by the entry suspension, and the Muslim Association of Hawaii—argue that the Proclamation violates the Immigration and Nationality Act (INA) and the Establishment Clause. The District Court granted a nationwide preliminary injunction barring enforce- ment of the restrictions. The Ninth Circuit affirmed, concluding that the Proclamation contravened two provisions of the INA: §1182(f), which authorizes the President to “suspend the entry of all aliens or any class of aliens” whenever he “finds” that their entry “would be detrimental to the interests of the United States,” and §1152(a)(1)(A), which provides that “no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” The court did not reach the Establishment Clause claim. Held: 1. This Court assumes without deciding that plaintiffs’ statutory claims are reviewable, notwithstanding consular nonreviewability or any other statutory nonreviewability issue. See Sale v. Haitian Cen- ters Council, Inc., 509 U. S. 155. Pp. 8–9. 2. The President has lawfully exercised the broad discretion grant- ed to him under §1182(f) to suspend the entry of aliens into the Unit- ed States. Pp. 9–24. (a) By its terms, §1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale, 509 U. S., at 187. The Proclamation falls well with- in this comprehensive delegation. The sole prerequisite set forth in §1182(f) is that the President “find[ ]” that the entry of the covered al-
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Syllabus iens “would be detrimental to the interests of the United States.” The President has undoubtedly fulfilled that requirement here. He first ordered DHS and other agencies to conduct a comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline. He then issued a Proclamation with extensive findings about the deficiencies and their impact. Based on that review, he found that restricting entry of aliens who could not be vetted with adequate information was in the national interest. Even assuming that some form of inquiry into the persuasiveness of the President’s findings is appropriate, but see Webster v. Doe, 486 U. S. 592, 600, plaintiffs’ attacks on the sufficiency of the findings cannot be sustained. The 12-page Proclamation is more detailed than any prior order issued under §1182(f). And such a searching in- quiry is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. See, e.g., Sale, 509 U. S., at 187–188. The Proclamation comports with the remaining textual limits in §1182(f). While the word “suspend” often connotes a temporary de- ferral, the President is not required to prescribe in advance a fixed end date for the entry restriction. Like its predecessors, the Procla- mation makes clear that its “conditional restrictions” will remain in force only so long as necessary to “address” the identified “inadequa- cies and risks” within the covered nations. Finally, the Proclamation properly identifies a “class of aliens” whose entry is suspended, and the word “class” comfortably encompasses a group of people linked by nationality. Pp. 10–15. (b) Plaintiffs have not identified any conflict between the Proc- lamation and the immigration scheme reflected in the INA that would implicitly bar the President from addressing deficiencies in the Nation’s vetting system. The existing grounds of inadmissibility and the narrow Visa Waiver Program do not address the failure of certain high-risk countries to provide a minimum baseline of reliable infor- mation. Further, neither the legislative history of §1182(f) nor his- torical practice justifies departing from the clear text of the statute. Pp. 15–20. (c) Plaintiffs’ argument that the President’s entry suspension vio- lates §1152(a)(1)(A) ignores the basic distinction between admissibil- ity determinations and visa issuance that runs throughout the INA. Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once §1182 sets the boundaries of admissibility, §1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on national- ity and other traits. Had Congress intended in §1152(a)(1)(A) to con- strain the President’s power to determine who may enter the country,
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it could have chosen language directed to that end. Common sense and historical practice confirm that §1152(a)(1)(A) does not limit the President’s delegated authority under §1182(f). Presidents have re- peatedly exercised their authority to suspend entry on the basis of nationality. And on plaintiffs’ reading, the President would not be permitted to suspend entry from particular foreign states in response to an epidemic, or even if the United States were on the brink of war. Pp. 20–24. 3. Plaintiffs have not demonstrated a likelihood of success on the merits of their claim that the Proclamation violates the Establish- ment Clause. Pp. 24–38. (a) The individual plaintiffs have Article III standing to chal- lenge the exclusion of their relatives under the Establishment Clause. A person’s interest in being united with his relatives is suffi- ciently concrete and particularized to form the basis of an Article III injury in fact. Cf., e.g., Kerry v. Din, 576 U. S. ___, ___. Pp. 24–26. (b) Plaintiffs allege that the primary purpose of the Proclamation was religious animus and that the President’s stated concerns about vetting protocols and national security were but pretexts for discrim- inating against Muslims. At the heart of their case is a series of statements by the President and his advisers both during the cam- paign and since the President assumed office. The issue, however, is not whether to denounce the President’s statements, but the signifi- cance of those statements in reviewing a Presidential directive, neu- tral on its face, addressing a matter within the core of executive re- sponsibility. In doing so, the Court must consider not only the statements of a particular President, but also the authority of the Presidency itself. Pp. 26–29. (c) The admission and exclusion of foreign nationals is a “funda- mental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U. S. 787, 792. Although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a cir- cumscribed judicial inquiry when the denial of a visa allegedly bur- dens the constitutional rights of a U. S. citizen. That review is lim- ited to whether the Executive gives a “facially legitimate and bona fide” reason for its action, Kleindienst v. Mandel, 408 U. S. 753, 769, but the Court need not define the precise contours of that narrow in- quiry in this case. For today’s purposes, the Court assumes that it may look behind the face of the Proclamation to the extent of apply- ing rational basis review, i.e., whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. Plaintiffs’ extrinsic evidence may be considered, but the policy will be upheld so long as it can reasonably
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Syllabus
be understood to result from a justification independent of unconsti- tutional grounds. Pp. 30–32. (d) On the few occasions where the Court has struck down a policy as illegitimate under rational basis scrutiny, a common thread has been that the laws at issue were “divorced from any factual context from which [the Court] could discern a relationship to legitimate state interests.” Romer v. Evans, 517 U. S. 620, 635. The Proclama- tion does not fit that pattern. It is expressly premised on legitimate purposes and says nothing about religion. The entry restrictions on Muslim-majority nations are limited to countries that were previous- ly designated by Congress or prior administrations as posing national security risks. Moreover, the Proclamation reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies. Plaintiffs challenge the entry suspension based on their perception of its effectiveness and wisdom, but the Court cannot substitute its own assessment for the Executive’s predictive judgments on such matters. See Holder v. Humanitarian Law Pro- ject, 561 U. S. 1, 33–34. Three additional features of the entry policy support the Govern- ment’s claim of a legitimate national security interest. First, since the President introduced entry restrictions in January 2017, three Muslim-majority countries—Iraq, Sudan, and Chad—have been re- moved from the list. Second, for those countries still subject to entry restrictions, the Proclamation includes numerous exceptions for vari- ous categories of foreign nationals. Finally, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. Pp. 33–38. 878 F. 3d 662, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, THOMAS, ALITO, and GORSUCH, JJ., joined. KENNEDY, J., and THOMAS, J., filed concurring opinions. BREYER, J., filed a dissenting opinion, in which KAGAN, J., joined. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined.
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Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES ______No. 17–965 ______DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS v. HAWAII, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 26, 2018]
CHIEF JUSTICE ROBERTS delivered the opinion of the Court. Under the Immigration and Nationality Act, foreign nationals seeking entry into the United States undergo a vetting process to ensure that they satisfy the numerous requirements for admission. The Act also vests the Presi- dent with authority to restrict the entry of aliens when- ever he finds that their entry “would be detrimental to the interests of the United States.” 8 U. S. C. §1182(f). Rely- ing on that delegation, the President concluded that it was necessary to impose entry restrictions on nationals of countries that do not share adequate information for an informed entry determination, or that otherwise present national security risks. Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017) (Proclamation). The plaintiffs in this litigation, respondents here, challenged the application of those entry restrictions to certain aliens abroad. We now decide whether the President had author- ity under the Act to issue the Proclamation, and whether the entry policy violates the Establishment Clause of the First Amendment.
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Opinion of the Court I A Shortly after taking office, President Trump signed Executive Order No. 13769, Protecting the Nation From Foreign Terrorist Entry Into the United States. 82 Fed. Reg. 8977 (2017) (EO–1). EO–1 directed the Secretary of Homeland Security to conduct a review to examine the adequacy of information provided by foreign governments about their nationals seeking to enter the United States. §3(a). Pending that review, the order suspended for 90 days the entry of foreign nationals from seven countries— Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen— that had been previously identified by Congress or prior administrations as posing heightened terrorism risks. §3(c). The District Court for the Western District of Wash- ington entered a temporary restraining order blocking the entry restrictions, and the Court of Appeals for the Ninth Circuit denied the Government’s request to stay that order. Washington v. Trump, 847 F. 3d 1151 (2017) (per curiam). In response, the President revoked EO–1, replacing it with Executive Order No. 13780, which again directed a worldwide review. 82 Fed. Reg. 13209 (2017) (EO–2). Citing investigative burdens on agencies and the need to diminish the risk that dangerous individuals would enter without adequate vetting, EO–2 also temporarily restricted the entry (with case-by-case waivers) of foreign nationals from six of the countries covered by EO–1: Iran, Libya, Somalia, Sudan, Syria, and Yemen. §§2(c), 3(a). The order explained that those countries had been selected because each “is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” §1(d). The entry re- striction was to stay in effect for 90 days, pending comple- tion of the worldwide review. These interim measures were immediately challenged in
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Opinion of the Court court. The District Courts for the Districts of Maryland and Hawaii entered nationwide preliminary injunctions barring enforcement of the entry suspension, and the respective Courts of Appeals upheld those injunctions, albeit on different grounds. International Refugee Assis- tance Project (IRAP) v. Trump, 857 F. 3d 554 (CA4 2017); Hawaii v. Trump, 859 F. 3d 741 (CA9 2017) (per curiam). This Court granted certiorari and stayed the injunctions— allowing the entry suspension to go into effect—with respect to foreign nationals who lacked a “credible claim of a bona fide relationship” with a person or entity in the United States. Trump v. IRAP, 582 U. S. ___, ___ (2017) (per curiam) (slip op., at 12). The temporary restrictions in EO–2 expired before this Court took any action, and we vacated the lower court decisions as moot. Trump v. IRAP, 583 U. S. ___ (2017); Trump v. Hawaii, 583 U. S. ___ (2017). On September 24, 2017, after completion of the world- wide review, the President issued the Proclamation before us—Proclamation No. 9645, Enhancing Vetting Capabili- ties and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats. 82 Fed. Reg. 45161. The Proclamation (as its title indicates) sought to improve vetting procedures by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present “public safety threats.” §1(a). To further that purpose, the Proclamation placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate. The Proclamation described how foreign states were selected for inclusion based on the review undertaken pursuant to EO–2. As part of that review, the Department of Homeland Security (DHS), in consultation with the State Department and several intelligence agencies,
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Opinion of the Court developed a “baseline” for the information required from foreign governments to confirm the identity of individuals seeking entry into the United States, and to determine whether those individuals pose a security threat. §1(c). The baseline included three components. The first, “identity-management information,” focused on whether a foreign government ensures the integrity of travel docu- ments by issuing electronic passports, reporting lost or stolen passports, and making available additional identity- related information. Second, the agencies considered the extent to which the country discloses information on crim- inal history and suspected terrorist links, provides travel document exemplars, and facilitates the U. S. Govern- ment’s receipt of information about airline passengers and crews traveling to the United States. Finally, the agencies weighed various indicators of national security risk, including whether the foreign state is a known or potential terrorist safe haven and whether it regularly declines to receive returning nationals following final orders of removal from the United States. Ibid. DHS collected and evaluated data regarding all foreign governments. §1(d). It identified 16 countries as having deficient information-sharing practices and presenting national security concerns, and another 31 countries as “at risk” of similarly failing to meet the baseline. §1(e). The State Department then undertook diplomatic efforts over a 50-day period to encourage all foreign governments to improve their practices. §1(f ). As a result of that effort, numerous countries provided DHS with travel document exemplars and agreed to share information on known or suspected terrorists. Ibid. Following the 50-day period, the Acting Secretary of Homeland Security concluded that eight countries—Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—remained deficient in terms of their risk profile and willingness to provide requested information. The
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Opinion of the Court Acting Secretary recommended that the President impose entry restrictions on certain nationals from all of those countries except Iraq. §§1(g), (h). She also concluded that although Somalia generally satisfied the information- sharing component of the baseline standards, its “identity- management deficiencies” and “significant terrorist pres- ence” presented special circumstances justifying additional limitations. She therefore recommended entry limitations for certain nationals of that country. §1(i). As for Iraq, the Acting Secretary found that entry limitations on its nationals were not warranted given the close cooperative relationship between the U. S. and Iraqi Governments and Iraq’s commitment to combating ISIS. §1(g). After consulting with multiple Cabinet members and other officials, the President adopted the Acting Secre- tary’s recommendations and issued the Proclamation.
Invoking his authority under 8 U. S. C. §§1182(f ) and 1185(a), the President determined that certain entry restrictions were necessary to “prevent the entry of those foreign nationals about whom the United States Govern- ment lacks sufficient information”; “elicit improved identity- management and information-sharing protocols and practices from foreign governments”; and otherwise “ad- vance [the] foreign policy, national security, and counter- terrorism objectives” of the United States. Proclamation §1(h). The President explained that these restrictions would be the “most likely to encourage cooperation” while “protect[ing] the United States until such time as im- provements occur.” Ibid. The Proclamation imposed a range of restrictions that vary based on the “distinct circumstances” in each of the eight countries. Ibid. For countries that do not cooperate with the United States in identifying security risks (Iran, North Korea, and Syria), the Proclamation suspends entry of all nationals, except for Iranians seeking nonimmigrant student and exchange-visitor visas. §§2(b)(ii), (d)(ii),
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Opinion of the Court (e)(ii). For countries that have information-sharing defi- ciencies but are nonetheless “valuable counterterrorism partner[s]” (Chad, Libya, and Yemen), it restricts entry of nationals seeking immigrant visas and nonimmigrant business or tourist visas. §§2(a)(i), (c)(i), (g)(i). Because Somalia generally satisfies the baseline standards but was found to present special risk factors, the Proclamation suspends entry of nationals seeking immigrant visas and requires additional scrutiny of nationals seeking nonim- migrant visas. §2(h)(ii). And for Venezuela, which refuses to cooperate in information sharing but for which alterna- tive means are available to identify its nationals, the Proclamation limits entry only of certain government officials and their family members on nonimmigrant busi- ness or tourist visas. §2(f )(ii). The Proclamation exempts lawful permanent residents and foreign nationals who have been granted asylum. §3(b). It also provides for case-by-case waivers when a foreign national demonstrates undue hardship, and that his entry is in the national interest and would not pose a threat to public safety. §3(c)(i); see also §3(c)(iv) (listing examples of when a waiver might be appropriate, such as if the foreign national seeks to reside with a close family member, obtain urgent medical care, or pursue significant business obligations). The Proclamation further directs DHS to assess on a continuing basis whether entry re- strictions should be modified or continued, and to report to the President every 180 days. §4. Upon completion of the first such review period, the President, on the recommen- dation of the Secretary of Homeland Security, determined that Chad had sufficiently improved its practices, and he accordingly lifted restrictions on its nationals. Presiden- tial Proclamation No. 9723, 83 Fed. Reg. 15937 (2018). B Plaintiffs in this case are the State of Hawaii, three
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Opinion of the Court individuals (Dr. Ismail Elshikh, John Doe #1, and John Doe #2), and the Muslim Association of Hawaii. The State operates the University of Hawaii system, which recruits students and faculty from the designated countries. The three individual plaintiffs are U. S. citizens or lawful permanent residents who have relatives from Iran, Syria, and Yemen applying for immigrant or nonimmigrant visas. The Association is a nonprofit organization that operates a mosque in Hawaii. Plaintiffs challenged the Proclamation—except as applied to North Korea and Venezuela—on several grounds. As relevant here, they argued that the Procla- mation contravenes provisions in the Immigration and Nationality Act (INA), 66 Stat. 187, as amended. Plain- tiffs further claimed that the Proclamation violates the Establishment Clause of the First Amendment, because it was motivated not by concerns pertaining to national security but by animus toward Islam. The District Court granted a nationwide preliminary injunction barring enforcement of the entry restrictions. The court concluded that the Proclamation violated two provisions of the INA: §1182(f ), because the President did not make sufficient findings that the entry of the covered foreign nationals would be detrimental to the national interest, and §1152(a)(1)(A), because the policy discrimi- nates against immigrant visa applicants on the basis of nationality. 265 F. Supp. 3d 1140, 1155–1159 (Haw. 2017). The Government requested expedited briefing and sought a stay pending appeal. The Court of Appeals for the Ninth Circuit granted a partial stay, permitting enforce- ment of the Proclamation with respect to foreign nationals who lack a bona fide relationship with the United States. This Court then stayed the injunction in full pending disposition of the Government’s appeal. 583 U. S. ___ (2017). The Court of Appeals affirmed. The court first held that
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Opinion of the Court the Proclamation exceeds the President’s authority under
§1182(f ). In its view, that provision authorizes only a “temporary” suspension of entry in response to “exigen- cies” that “Congress would be ill-equipped to address.” 878 F. 3d 662, 684, 688 (2017). The court further reasoned that the Proclamation “conflicts with the INA’s finely reticulated regulatory scheme” by addressing “matters of immigration already passed upon by Congress.” Id., at 685, 690. The Ninth Circuit then turned to §1152(a)(1)(A) and determined that the entry restrictions also contravene the prohibition on nationality-based discrimination in the issuance of immigrant visas. The court did not reach plaintiffs’ Establishment Clause claim. We granted certiorari. 583 U. S. ___ (2018). II Before addressing the merits of plaintiffs’ statutory claims, we consider whether we have authority to do so. The Government argues that plaintiffs’ challenge to the Proclamation under the INA is not justiciable. Relying on the doctrine of consular nonreviewability, the Government contends that because aliens have no “claim of right” to enter the United States, and because exclusion of aliens is “a fundamental act of sovereignty” by the political branches, review of an exclusion decision “is not within the province of any court, unless expressly authorized by law.” United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542– 543 (1950). According to the Government, that principle barring review is reflected in the INA, which sets forth a comprehensive framework for review of orders of removal, but authorizes judicial review only for aliens physically present in the United States. See Brief for Petitioners 19– 20 (citing 8 U. S. C. §1252). The justiciability of plaintiffs’ challenge under the INA presents a difficult question. The Government made similar arguments that no judicial review was available in
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Opinion of the Court Sale v. Haitian Centers Council, Inc., 509 U. S. 155 (1993). The Court in that case, however, went on to consider on the merits a statutory claim like the one before us without addressing the issue of reviewability. The Government does not argue that the doctrine of consular nonreview- ability goes to the Court’s jurisdiction, see Tr. of Oral Arg. 13, nor does it point to any provision of the INA that expressly strips the Court of jurisdiction over plaintiffs’ claims, see Sebelius v. Auburn Regional Medical Center, 568 U. S. 145, 153 (2013) (requiring Congress to “clearly state[ ]” that a statutory provision is jurisdictional). As a result, we may assume without deciding that plaintiffs’ statutory claims are reviewable, notwithstanding consular nonreviewability or any other statutory nonreviewability issue, and we proceed on that basis. III The INA establishes numerous grounds on which an alien abroad may be inadmissible to the United States and ineligible for a visa. See, e.g., 8 U. S. C. §§1182(a)(1) (health-related grounds), (a)(2) (criminal history), (a)(3)(B) (terrorist activities), (a)(3)(C) (foreign policy grounds). Congress has also delegated to the President authority to suspend or restrict the entry of aliens in certain circum- stances. The principal source of that authority, §1182(f ), enables the President to “suspend the entry of all aliens or any class of aliens” whenever he “finds” that their entry “would be detrimental to the interests of the United States.”1
—————— 1 The President also invoked his power under 8 U. S. C. §1185(a)(1), which grants the President authority to adopt “reasonable rules, regulations, and orders” governing entry or removal of aliens, “subject to such limitations and exceptions as [he] may prescribe.” Because this provision “substantially overlap[s]” with §1182(f ), we agree with the Government that we “need not resolve . . . the precise relationship between the two statutes” in evaluating the validity of the Proclama-
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Opinion of the Court Plaintiffs argue that the Proclamation is not a valid exercise of the President’s authority under the INA. In their view, §1182(f ) confers only a residual power to tem- porarily halt the entry of a discrete group of aliens en- gaged in harmful conduct. They also assert that the Proc- lamation violates another provision of the INA—8 U. S. C. §1152(a)(1)(A)—because it discriminates on the basis of nationality in the issuance of immigrant visas.
By its plain language, §1182(f ) grants the President broad discretion to suspend the entry of aliens into the United States. The President lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest. And plain- tiffs’ attempts to identify a conflict with other provisions in the INA, and their appeal to the statute’s purposes and legislative history, fail to overcome the clear statutory language. A
The text of §1182(f ) states: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonim- migrants, or impose on the entry of aliens any re- strictions he may deem to be appropriate.”
By its terms, §1182(f ) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry (“[w]henever [he] finds that the entry” of aliens “would be detrimental” to
—————— tion. Brief for Petitioners 32–33.
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Opinion of the Court the national interest); whose entry to suspend (“all aliens or any class of aliens”); for how long (“for such period as he shall deem necessary”); and on what conditions (“any restrictions he may deem to be appropriate”). It is there- fore unsurprising that we have previously observed that
§1182(f ) vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumer- ated in the INA. Sale, 509 U. S., at 187 (finding it “per- fectly clear” that the President could “establish a naval blockade” to prevent illegal migrants from entering the United States); see also Abourezk v. Reagan, 785 F. 2d 1043, 1049, n. 2 (CADC 1986) (describing the “sweeping proclamation power” in §1182(f ) as enabling the President to supplement the other grounds of inadmissibility in the INA). The Proclamation falls well within this comprehensive delegation. The sole prerequisite set forth in §1182(f ) is that the President “find[ ]” that the entry of the covered aliens “would be detrimental to the interests of the United States.” The President has undoubtedly fulfilled that requirement here. He first ordered DHS and other agen- cies to conduct a comprehensive evaluation of every single country’s compliance with the information and risk as- sessment baseline. The President then issued a Proclama- tion setting forth extensive findings describing how defi- ciencies in the practices of select foreign governments— several of which are state sponsors of terrorism—deprive the Government of “sufficient information to assess the risks [those countries’ nationals] pose to the United States.” Proclamation §1(h)(i). Based on that review, the President found that it was in the national interest to restrict entry of aliens who could not be vetted with adequate information—both to protect national security and public safety, and to induce improvement by their home countries. The Proclamation therefore “craft[ed] . . . country-specific restrictions that would be most likely to
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Opinion of the Court encourage cooperation given each country’s distinct cir- cumstances,” while securing the Nation “until such time as improvements occur.” Ibid.2 Plaintiffs believe that these findings are insufficient. They argue, as an initial matter, that the Proclamation fails to provide a persuasive rationale for why nationality alone renders the covered foreign nationals a security risk. And they further discount the President’s stated concern about deficient vetting because the Proclamation allows many aliens from the designated countries to enter on nonimmigrant visas. Such arguments are grounded on the premise that
§1182(f ) not only requires the President to make a finding that entry “would be detrimental to the interests of the United States,” but also to explain that finding with suffi- cient detail to enable judicial review. That premise is questionable. See Webster v. Doe, 486 U. S. 592, 600 (1988) (concluding that a statute authorizing the CIA Director to terminate an employee when the Director “shall deem such termination necessary or advisable in the interests of the United States” forecloses “any mean- ingful judicial standard of review”). But even assuming that some form of review is appropriate, plaintiffs’ attacks on the sufficiency of the President’s findings cannot be sustained. The 12-page Proclamation—which thoroughly describes the process, agency evaluations, and recommen- dations underlying the President’s chosen restrictions—is more detailed than any prior order a President has issued under §1182(f ). Contrast Presidential Proclamation No. 6958, 3 CFR 133 (1996) (President Clinton) (explaining in one sentence why suspending entry of members of the
—————— 2 The Proclamation states that it does not disclose every ground for the country-specific restrictions because “[d]escribing all of those reasons publicly . . . would cause serious damage to the national security of the United States, and many such descriptions are classified.” §1(j).
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Opinion of the Court Sudanese government and armed forces “is in the foreign policy interests of the United States”); Presidential Proc- lamation No. 4865, 3 CFR 50–51 (1981) (President Reagan) (explaining in five sentences why measures to curtail “the continuing illegal migration by sea of large numbers of undocumented aliens into the southeastern United States” are “necessary”). Moreover, plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the defer- ence traditionally accorded the President in this sphere. “Whether the President’s chosen method” of addressing perceived risks is justified from a policy perspective is
“irrelevant to the scope of his [§1182(f )] authority.” Sale, 509 U. S., at 187–188. And when the President adopts “a preventive measure . . . in the context of international affairs and national security,” he is “not required to con- clusively link all of the pieces in the puzzle before [courts] grant weight to [his] empirical conclusions.” Holder v. Humanitarian Law Project, 561 U. S. 1, 35 (2010). The Proclamation also comports with the remaining textual limits in §1182(f ). We agree with plaintiffs that the word “suspend” often connotes a “defer[ral] till later,” Webster’s Third New International Dictionary 2303 (1966). But that does not mean that the President is required to prescribe in advance a fixed end date for the entry restrictions. Section 1182(f ) authorizes the Presi- dent to suspend entry “for such period as he shall deem necessary.” It follows that when a President suspends entry in response to a diplomatic dispute or policy concern, he may link the duration of those restrictions, implicitly or explicitly, to the resolution of the triggering condition. See, e.g., Presidential Proclamation No. 5829, 3 CFR 88 (1988) (President Reagan) (suspending the entry of certain Panamanian nationals “until such time as . . . democracy has been restored in Panama”); Presidential Proclamation
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Opinion of the Court No. 8693, 3 CFR 86–87 (2011) (President Obama) (sus- pending the entry of individuals subject to a travel re- striction under United Nations Security Council resolu- tions “until such time as the Secretary of State determines that [the suspension] is no longer necessary”). In fact, not one of the 43 suspension orders issued prior to this litiga- tion has specified a precise end date. Like its predecessors, the Proclamation makes clear that its “conditional restrictions” will remain in force only so long as necessary to “address” the identified “inadequacies and risks” within the covered nations. Proclamation Preamble, and §1(h); see ibid. (explaining that the aim is to “relax[ ] or remove[ ]” the entry restrictions “as soon as possible”). To that end, the Proclamation establishes an ongoing process to engage covered nations and assess every 180 days whether the entry restrictions should be modified or terminated. §§4(a), (b). Indeed, after the initial review period, the President determined that Chad had made sufficient improvements to its identity- management protocols, and he accordingly lifted the entry suspension on its nationals. See Proclamation No. 9723, 83 Fed. Reg. 15937. Finally, the Proclamation properly identifies a “class of aliens”—nationals of select countries—whose entry is suspended. Plaintiffs argue that “class” must refer to a well-defined group of individuals who share a common “characteristic” apart from nationality. Brief for Respond- ents 42. But the text of §1182(f), of course, does not say that, and the word “class” comfortably encompasses a group of people linked by nationality. Plaintiffs also con- tend that the class cannot be “overbroad.” Brief for Re- spondents 42. But that simply amounts to an unspoken tailoring requirement found nowhere in Congress’s grant of authority to suspend entry of not only “any class of aliens” but “all aliens.”
In short, the language of §1182(f ) is clear, and the Proc-
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Opinion of the Court lamation does not exceed any textual limit on the Presi- dent’s authority. B Confronted with this “facially broad grant of power,” 878 F. 3d, at 688, plaintiffs focus their attention on statutory structure and legislative purpose. They seek support in, first, the immigration scheme reflected in the INA as a whole, and, second, the legislative history of §1182(f ) and historical practice. Neither argument justifies departing from the clear text of the statute. 1 Plaintiffs’ structural argument starts with the premise that §1182(f ) does not give the President authority to countermand Congress’s considered policy judgments. The President, they say, may supplement the INA, but he cannot supplant it. And in their view, the Proclamation falls in the latter category because Congress has already specified a two-part solution to the problem of aliens seeking entry from countries that do not share sufficient information with the United States. First, Congress de- signed an individualized vetting system that places the burden on the alien to prove his admissibility. See §1361. Second, instead of banning the entry of nationals from particular countries, Congress sought to encourage infor- mation sharing through a Visa Waiver Program offering fast-track admission for countries that cooperate with the United States. See §1187.
We may assume that §1182(f ) does not allow the Presi- dent to expressly override particular provisions of the INA. But plaintiffs have not identified any conflict be- tween the statute and the Proclamation that would implic- itly bar the President from addressing deficiencies in the Nation’s vetting system. To the contrary, the Proclamation supports Congress’s
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Opinion of the Court individualized approach for determining admissibility. The INA sets forth various inadmissibility grounds based on connections to terrorism and criminal history, but those provisions can only work when the consular officer has sufficient (and sufficiently reliable) information to make that determination. The Proclamation promotes the effec- tiveness of the vetting process by helping to ensure the availability of such information. Plaintiffs suggest that the entry restrictions are unnec- essary because consular officers can simply deny visas in individual cases when an alien fails to carry his burden of proving admissibility—for example, by failing to produce certified records regarding his criminal history. Brief for Respondents 48. But that misses the point: A critical finding of the Proclamation is that the failure of certain countries to provide reliable information prevents the Government from accurately determining whether an alien is inadmissible or poses a threat. Proclamation §1(h). Unless consular officers are expected to apply categorical rules and deny entry from those countries across the board, fraudulent or unreliable documentation may thwart their review in individual cases. And at any rate, the INA certainly does not require that systemic problems such as the lack of reliable information be ad- dressed only in a progression of case-by-case admissibility determinations. One of the key objectives of the Procla- mation is to encourage foreign governments to improve their practices, thus facilitating the Government’s vetting process overall. Ibid. Nor is there a conflict between the Proclamation and the Visa Waiver Program. The Program allows travel without a visa for short-term visitors from 38 countries that have entered into a “rigorous security partnership” with the United States. DHS, U. S. Visa Waiver Program (Apr. 6, 2016), http://www.dhs.gov/visa-waiver-program (as last visited June 25, 2018). Eligibility for that partnership
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Opinion of the Court involves “broad and consequential assessments of [the country’s] foreign security standards and operations.” Ibid. A foreign government must (among other things) undergo a comprehensive evaluation of its “counterterror- ism, law enforcement, immigration enforcement, passport security, and border management capabilities,” often including “operational site inspections of airports, sea- ports, land borders, and passport production and issuance facilities.” Ibid. Congress’s decision to authorize a benefit for “many of America’s closest allies,” ibid., did not implicitly foreclose the Executive from imposing tighter restrictions on nationals of certain high-risk countries. The Visa Waiver Program creates a special exemption for citizens of coun- tries that maintain exemplary security standards and offer “reciprocal [travel] privileges” to United States citi- zens. 8 U. S. C. §1187(a)(2)(A). But in establishing a select partnership covering less than 20% of the countries in the world, Congress did not address what requirements should govern the entry of nationals from the vast majority of countries that fall short of that gold standard— particularly those nations presenting heightened terror- ism concerns. Nor did Congress attempt to determine—as the multi-agency review process did—whether those high- risk countries provide a minimum baseline of information to adequately vet their nationals. Once again, this is not a situation where “Congress has stepped into the space and solved the exact problem.” Tr. of Oral Arg. 53. Although plaintiffs claim that their reading preserves for the President a flexible power to “supplement” the INA, their understanding of the President’s authority is remarkably cramped: He may suspend entry by classes of aliens “similar in nature” to the existing categories of inadmissibility—but not too similar—or only in response to “some exigent circumstance” that Congress did not already touch on in the INA. Brief for Respondents 31, 36,
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Opinion of the Court 50; see also Tr. of Oral Arg. 57 (“Presidents have wide berth in this area . . . if there’s any sort of emergency.”). In any event, no Congress that wanted to confer on the President only a residual authority to address emergency situations would ever use language of the sort in §1182(f ). Fairly read, the provision vests authority in the President to impose additional limitations on entry beyond the grounds for exclusion set forth in the INA—including in response to circumstances that might affect the vetting system or other “interests of the United States.” Because plaintiffs do not point to any contradiction with another provision of the INA, the President has not exceeded his authority under §1182(f ). 2 Plaintiffs seek to locate additional limitations on the scope of §1182(f ) in the statutory background and legisla- tive history. Given the clarity of the text, we need not consider such extra-textual evidence. See State Farm Fire & Casualty Co. v. United States ex rel. Rigsby, 580 U. S. ___, ___ (2016) (slip op., at 9). At any rate, plaintiffs’ evidence supports the plain meaning of the provision.
Drawing on legislative debates over §1182(f ), plaintiffs suggest that the President’s suspension power should be limited to exigencies where it would be difficult for Con- gress to react promptly. Precursor provisions enacted during the First and Second World Wars confined the President’s exclusion authority to times of “war” and “national emergency.” See Act of May 22, 1918, §1(a), 40 Stat. 559; Act of June 21, 1941, ch. 210, §1, 55 Stat. 252.
When Congress enacted §1182(f ) in 1952, plaintiffs note, it borrowed “nearly verbatim” from those predecessor stat- utes, and one of the bill’s sponsors affirmed that the provi- sion would apply only during a time of crisis. According to plaintiffs, it therefore follows that Congress sought to delegate only a similarly tailored suspension power in
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Opinion of the Court
§1182(f ). Brief for Respondents 39–40. If anything, the drafting history suggests the opposite. In borrowing “nearly verbatim” from the pre-existing statute, Congress made one critical alteration—it removed the national emergency standard that plaintiffs now seek to reintroduce in another form. Weighing Congress’s conscious departure from its wartime statutes against an isolated floor statement, the departure is far more proba- tive. See NLRB v. SW General, Inc., 580 U. S. ___, ___ (2017) (slip op., at 16) (“[F]loor statements by individual legislators rank among the least illuminating forms of legislative history.”). When Congress wishes to condition an exercise of executive authority on the President’s find- ing of an exigency or crisis, it knows how to say just that. See, e.g., 16 U. S. C. §824o–1(b); 42 U. S. C. §5192; 50 U. S. C. §§1701, 1702. Here, Congress instead chose to condition the President’s exercise of the suspension authority on a different finding: that the entry of an alien or class of aliens would be “detrimental to the interests of the United States.” Plaintiffs also strive to infer limitations from executive practice. By their count, every previous suspension order under §1182(f ) can be slotted into one of two categories. The vast majority targeted discrete groups of foreign nationals engaging in conduct “deemed harmful by the immigration laws.” And the remaining entry restrictions that focused on entire nationalities—namely, President Carter’s response to the Iran hostage crisis and President Reagan’s suspension of immigration from Cuba—were, in their view, designed as a response to diplomatic emergen- cies “that the immigration laws do not address.” Brief for Respondents 40–41. Even if we were willing to confine expansive language in light of its past applications, the historical evidence is more equivocal than plaintiffs acknowledge. Presidents have repeatedly suspended entry not because the covered
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Opinion of the Court nationals themselves engaged in harmful acts but instead to retaliate for conduct by their governments that conflicted with U. S. foreign policy interests. See, e.g., Exec. Order No. 13662, 3 CFR 233 (2014) (President Obama) (suspend- ing entry of Russian nationals working in the financial services, energy, mining, engineering, or defense sectors, in light of the Russian Federation’s “annexation of Crimea and its use of force in Ukraine”); Presidential Proclama- tion No. 6958, 3 CFR 133 (1997) (President Clinton) (sus- pending entry of Sudanese governmental and military personnel, citing “foreign policy interests of the United States” based on Sudan’s refusal to comply with United Nations resolution). And while some of these reprisals were directed at subsets of aliens from the countries at issue, others broadly suspended entry on the basis of nationality due to ongoing diplomatic disputes. For exam- ple, President Reagan invoked §1182(f ) to suspend entry “as immigrants” by almost all Cuban nationals, to apply pressure on the Cuban Government. Presidential Procla- mation No. 5517, 3 CFR 102 (1986). Plaintiffs try to fit this latter order within their carve-out for emergency action, but the proclamation was based in part on Cuba’s decision to breach an immigration agreement some 15 months earlier. More significantly, plaintiffs’ argument about historical practice is a double-edged sword. The more ad hoc their account of executive action—to fit the history into their theory—the harder it becomes to see such a refined dele- gation in a statute that grants the President sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long. C Plaintiffs’ final statutory argument is that the Presi- dent’s entry suspension violates §1152(a)(1)(A), which provides that “no person shall . . . be discriminated against
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Opinion of the Court in the issuance of an immigrant visa because of the per- son’s race, sex, nationality, place of birth, or place of residence.” They contend that we should interpret the provision as prohibiting nationality-based discrimination throughout the entire immigration process, despite the reference in §1152(a)(1)(A) to the act of visa issuance alone. Specifically, plaintiffs argue that §1152(a)(1)(A) applies to the predicate question of a visa applicant’s eligibility for admission and the subsequent question whether the holder of a visa may in fact enter the country. Any other conclusion, they say, would allow the President to circumvent the protections against discrimination enshrined in §1152(a)(1)(A). As an initial matter, this argument challenges only the validity of the entry restrictions on immigrant travel. Section 1152(a)(1)(A) is expressly limited to the issuance of “immigrant visa[s]” while §1182(f ) allows the Presi- dent to suspend entry of “immigrants or nonimmigrants.” At a minimum, then, plaintiffs’ reading would not affect any of the limitations on nonimmigrant travel in the Proclamation. In any event, we reject plaintiffs’ interpretation because it ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA.3 Section 1182 defines the pool of individuals who —————— 3 The Act is rife with examples distinguishing between the two con- cepts. See, e.g., 8 U. S. C. §1101(a)(4) (“The term ‘application for admission’ has reference to the application for admission into the United States and not to the application for the issuance of an immi- grant or nonimmigrant visa.”); §1182(a) (“ineligible to receive visas and ineligible to be admitted”); §1182(a)(3)(D)(iii) (“establishes to the satisfaction of the consular officer when applying for a visa . . . or to the satisfaction of the Attorney General when applying for admission”); §1182(h)(1)(A)(i) (“alien’s application for a visa, admission, or adjust- ment of status”); §1187 (permitting entry without a visa); §1361 (estab- lishing burden of proof for when a person “makes application for a visa . . . , or makes application for admission, or otherwise attempts to enter
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Opinion of the Court are admissible to the United States. Its restrictions come into play at two points in the process of gaining entry (or admission)4 into the United States. First, any alien who is inadmissible under §1182 (based on, for example, health risks, criminal history, or foreign policy consequences) is screened out as “ineligible to receive a visa.” 8 U. S. C. §1201(g). Second, even if a consular officer issues a visa, entry into the United States is not guaranteed. As every visa application explains, a visa does not entitle an alien to enter the United States “if, upon arrival,” an immigra- tion officer determines that the applicant is “inadmissible under this chapter, or any other provision of law”— including §1182(f ). §1201(h).
Sections 1182(f ) and 1152(a)(1)(A) thus operate in dif- ferent spheres: Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once §1182 sets the boundaries of admissibility into the United States, §1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. The distinc- tion between admissibility—to which §1152(a)(1)(A) does not apply—and visa issuance—to which it does—is appar- ent from the text of the provision, which specifies only that its protections apply to the “issuance” of “immigrant vi- sa[s],” without mentioning admissibility or entry. Had Congress instead intended in §1152(a)(1)(A) to constrain the President’s power to determine who may enter the country, it could easily have chosen language directed to that end. See, e.g., §§1182(a)(3)(C)(ii), (iii) (providing that certain aliens “shall not be excludable or subject to re- strictions or conditions on entry . . . because of the alien’s
—————— the United States”). 4 The concepts of entry and admission—but not issuance of a visa— are used interchangeably in the INA. See §1101(a)(13)(A) (defining “admission” as the “lawful entry of the alien into the United States”).
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Opinion of the Court past, current, or expected beliefs, statements, or associa- tions” (emphasis added)). “The fact that [Congress] did not adopt [a] readily available and apparent alternative strongly supports” the conclusion that §1152(a)(1)(A) does not limit the President’s delegated authority under
§1182(f ). Knight v. Commissioner, 552 U. S. 181, 188 (2008). Common sense and historical practice confirm as much. Section 1152(a)(1)(A) has never been treated as a con- straint on the criteria for admissibility in §1182. Presi- dents have repeatedly exercised their authority to suspend entry on the basis of nationality. As noted, President
Reagan relied on §1182(f ) to suspend entry “as immi- grants by all Cuban nationals,” subject to exceptions. Proclamation No. 5517, 51 Fed. Reg. 30470 (1986). Like- wise, President Carter invoked §1185(a)(1) to deny and revoke visas to all Iranian nationals. See Exec. Order No. 12172, 3 CFR 461 (1979), as amended by Exec. Order No. 12206, 3 CFR 249 (1980); Public Papers of the Presidents, Jimmy Carter, Sanctions Against Iran, Vol. 1, Apr. 7, 1980, pp. 611–612 (1980); see also n. 1, supra. On plaintiffs’ reading, those orders were beyond the President’s authority. The entry restrictions in the Proc- lamation on North Korea (which plaintiffs do not chal- lenge in this litigation) would also be unlawful. Nor would the President be permitted to suspend entry from particu- lar foreign states in response to an epidemic confined to a single region, or a verified terrorist threat involving na- tionals of a specific foreign nation, or even if the United States were on the brink of war.
In a reprise of their §1182(f ) argument, plaintiffs at- tempt to soften their position by falling back on an implicit exception for Presidential actions that are “closely drawn” to address “specific fast-breaking exigencies.” Brief for Respondents 60–61. Yet the absence of any textual basis for such an exception more likely indicates that Congress
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Opinion of the Court did not intend for §1152(a)(1)(A) to limit the President’s flexible authority to suspend entry based on foreign policy interests. In addition, plaintiffs’ proposed exigency test would require courts, rather than the President, to deter- mine whether a foreign government’s conduct rises to the level that would trigger a supposed implicit exception to a federal statute. See Reno v. American-Arab Anti- Discrimination Comm., 525 U. S. 471, 491 (1999) (explain- ing that even if the Executive “disclose[d] its . . . reasons for deeming nationals of a particular country a special threat,” courts would be “unable to assess their adequacy”). The text of §1152(a)(1)(A) offers no standards that would enable courts to assess, for example, whether the situation in North Korea justifies entry restrictions while the terror- ist threat in Yemen does not. * * * The Proclamation is squarely within the scope of Presi- dential authority under the INA. Indeed, neither dissent even attempts any serious argument to the contrary, despite the fact that plaintiffs’ primary contention below and in their briefing before this Court was that the Proc- lamation violated the statute. IV A We now turn to plaintiffs’ claim that the Proclamation was issued for the unconstitutional purpose of excluding Muslims. Because we have an obligation to assure our- selves of jurisdiction under Article III, we begin by ad- dressing the question whether plaintiffs have standing to bring their constitutional challenge. Federal courts have authority under the Constitution to decide legal questions only in the course of resolving “Cases” or “Controversies.” Art. III, §2. One of the essen- tial elements of a legal case or controversy is that the
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Opinion of the Court plaintiff have standing to sue. Standing requires more than just a “keen interest in the issue.” Hollingsworth v. Perry, 570 U. S. 693, 700 (2013). It requires allegations— and, eventually, proof—that the plaintiff “personal[ly]” suffered a concrete and particularized injury in connection with the conduct about which he complains. Spokeo, Inc. v. Robins, 578 U. S. ___, ___ (2016) (slip op., at 7). In a case arising from an alleged violation of the Establishment Clause, a plaintiff must show, as in other cases, that he is “directly affected by the laws and practices against which [his] complaints are directed.” School Dist. of Abington Township v. Schempp, 374 U. S. 203, 224, n. 9 (1963). That is an issue here because the entry restrictions apply not to plaintiffs themselves but to others seeking to enter the United States. Plaintiffs first argue that they have standing on the ground that the Proclamation “establishes a disfavored faith” and violates “their own right to be free from federal [religious] establishments.” Brief for Respondents 27–28 (emphasis deleted). They describe such injury as “spirit- ual and dignitary.” Id., at 29. We need not decide whether the claimed dignitary in- terest establishes an adequate ground for standing. The three individual plaintiffs assert another, more concrete injury: the alleged real-world effect that the Proclamation has had in keeping them separated from certain relatives who seek to enter the country. See ibid.; Town of Chester v. Laroe Estates, Inc., 581 U. S. ___, ___–___ (2017) (slip op., at 5–6) (“At least one plaintiff must have standing to seek each form of relief requested in the complaint.”). We agree that a person’s interest in being united with his relatives is sufficiently concrete and particularized to form the basis of an Article III injury in fact. This Court has previously considered the merits of claims asserted by United States citizens regarding violations of their per- sonal rights allegedly caused by the Government’s exclu-
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Opinion of the Court sion of particular foreign nationals. See Kerry v. Din, 576 U. S. ___, ___ (2015) (plurality opinion) (slip op., at 15); id., at ___ (KENNEDY, J., concurring in judgment) (slip op., at 1); Kleindienst v. Mandel, 408 U. S. 753, 762 (1972). Likewise, one of our prior stay orders in this litigation recognized that an American individual who has “a bona fide relationship with a particular person seeking to enter the country . . . can legitimately claim concrete hardship if that person is excluded.” Trump v. IRAP, 582 U. S., at ___ (slip op., at 13). The Government responds that plaintiffs’ Establishment Clause claims are not justiciable because the Clause does not give them a legally protected interest in the admission of particular foreign nationals. But that argument—which depends upon the scope of plaintiffs’ Establishment Clause rights—concerns the merits rather than the justiciability of plaintiffs’ claims. We therefore conclude that the indi- vidual plaintiffs have Article III standing to challenge the exclusion of their relatives under the Establishment Clause. B The First Amendment provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Our cases recog- nize that “[t]he clearest command of the Establishment Clause is that one religious denomination cannot be offi- cially preferred over another.” Larson v. Valente, 456 U. S. 228, 244 (1982). Plaintiffs believe that the Procla- mation violates this prohibition by singling out Muslims for disfavored treatment. The entry suspension, they contend, operates as a “religious gerrymander,” in part because most of the countries covered by the Proclamation have Muslim-majority populations. And in their view, deviations from the information-sharing baseline criteria suggest that the results of the multi-agency review were
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Opinion of the Court “foreordained.” Relying on Establishment Clause prece- dents concerning laws and policies applied domestically, plaintiffs allege that the primary purpose of the Proclama- tion was religious animus and that the President’s stated concerns about vetting protocols and national security were but pretexts for discriminating against Muslims. Brief for Respondents 69–73. At the heart of plaintiffs’ case is a series of statements by the President and his advisers casting doubt on the official objective of the Proclamation. For example, while a candidate on the campaign trail, the President published a “Statement on Preventing Muslim Immigration” that called for a “total and complete shutdown of Muslims entering the United States until our country’s representa- tives can figure out what is going on.” App. 158. That statement remained on his campaign website until May 2017. Id., at 130–131. Then-candidate Trump also stated that “Islam hates us” and asserted that the United States was “having problems with Muslims coming into the country.” Id., at 120–121, 159. Shortly after being elected, when asked whether violence in Europe had affected his plans to “ban Muslim immigration,” the President replied, “You know my plans. All along, I’ve been proven to be right.” Id., at 123. One week after his inauguration, the President issued EO–1. In a television interview, one of the President’s campaign advisers explained that when the President “first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’ ” Id., at 125. The adviser said he assembled a group of Members of Congress and lawyers that “focused on, instead of religion, danger. . . . [The order] is based on places where there [is] substantial evidence that people are sending terrorists into our coun- try.” Id., at 229. Plaintiffs also note that after issuing EO–2 to replace
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Opinion of the Court EO–1, the President expressed regret that his prior order had been “watered down” and called for a “much tougher version” of his “Travel Ban.” Shortly before the release of the Proclamation, he stated that the “travel ban . . . should be far larger, tougher, and more specific,” but “stupidly that would not be politically correct.” Id., at 132–133. More recently, on November 29, 2017, the President re- tweeted links to three anti-Muslim propaganda videos. In response to questions about those videos, the President’s deputy press secretary denied that the President thinks Muslims are a threat to the United States, explaining that “the President has been talking about these security issues for years now, from the campaign trail to the White House” and “has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.” IRAP v. Trump, 883 F. 3d 233, 267 (CA4 2018). The President of the United States possesses an ex- traordinary power to speak to his fellow citizens and on their behalf. Our Presidents have frequently used that power to espouse the principles of religious freedom and tolerance on which this Nation was founded. In 1790 George Washington reassured the Hebrew Congregation of Newport, Rhode Island that “happily the Government of the United States . . . gives to bigotry no sanction, to per- secution no assistance [and] requires only that they who live under its protection should demean themselves as good citizens.” 6 Papers of George Washington 285 (D. Twohig ed. 1996). President Eisenhower, at the opening of the Islamic Center of Washington, similarly pledged to a Muslim audience that “America would fight with her whole strength for your right to have here your own church,” declaring that “[t]his concept is indeed a part of America.” Public Papers of the Presidents, Dwight D. Eisenhower, June 28, 1957, p. 509 (1957). And just days after the attacks of September 11, 2001, President George
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Opinion of the Court W. Bush returned to the same Islamic Center to implore his fellow Americans—Muslims and non-Muslims alike— to remember during their time of grief that “[t]he face of terror is not the true faith of Islam,” and that America is “a great country because we share the same values of respect and dignity and human worth.” Public Papers of the Presidents, George W. Bush, Vol. 2, Sept. 17, 2001, p. 1121 (2001). Yet it cannot be denied that the Federal Government and the Presidents who have carried its laws into effect have—from the Nation’s earliest days— performed unevenly in living up to those inspiring words. Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in viola- tion of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is in- stead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presi- dency itself. The case before us differs in numerous respects from the conventional Establishment Clause claim. Unlike the typical suit involving religious displays or school prayer, plaintiffs seek to invalidate a national security directive regulating the entry of aliens abroad. Their claim accord- ingly raises a number of delicate issues regarding the scope of the constitutional right and the manner of proof. The Proclamation, moreover, is facially neutral toward religion. Plaintiffs therefore ask the Court to probe the sincerity of the stated justifications for the policy by refer- ence to extrinsic statements—many of which were made before the President took the oath of office. These various aspects of plaintiffs’ challenge inform our standard of review.
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Opinion of the Court C For more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a “fun- damental sovereign attribute exercised by the Govern- ment’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U. S. 787, 792 (1977); see Harisiades v. Shaughnessy, 342 U. S. 580, 588–589 (1952) (“[A]ny policy toward aliens is vitally and intricately in- terwoven with contemporaneous policies in regard to the conduct of foreign relations [and] the war power.”). Be- cause decisions in these matters may implicate “relations with foreign powers,” or involve “classifications defined in the light of changing political and economic circumstances,” such judgments “are frequently of a character more ap- propriate to either the Legislature or the Executive.” Mathews v. Diaz, 426 U. S. 67, 81 (1976). Nonetheless, although foreign nationals seeking admis- sion have no constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen. In Kleindienst v. Mandel, the Attorney General denied admission to a Belgian journalist and self- described “revolutionary Marxist,” Ernest Mandel, who had been invited to speak at a conference at Stanford University. 408 U. S., at 756–757. The professors who wished to hear Mandel speak challenged that decision under the First Amendment, and we acknowledged that their constitutional “right to receive information” was implicated. Id., at 764–765. But we limited our review to whether the Executive gave a “facially legitimate and bona fide” reason for its action. Id., at 769. Given the authority of the political branches over admission, we held that “when the Executive exercises this [delegated] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exer- cise of that discretion, nor test it by balancing its justifica-
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Opinion of the Court tion” against the asserted constitutional interests of U. S. citizens. Id., at 770. The principal dissent suggests that Mandel has no bearing on this case, post, at 14, and n. 5 (opinion of SOTOMAYOR, J.) (hereinafter the dissent), but our opinions have reaffirmed and applied its deferential standard of review across different contexts and constitutional claims. In Din, JUSTICE KENNEDY reiterated that “respect for the political branches’ broad power over the creation and administration of the immigration system” meant that the Government need provide only a statutory citation to explain a visa denial. 576 U. S., at ___ (opinion concurring in judgment) (slip op., at 6). Likewise in Fiallo, we applied Mandel to a “broad congressional policy” giving immigra- tion preferences to mothers of illegitimate children. 430 U. S., at 795. Even though the statute created a “categori- cal” entry classification that discriminated on the basis of sex and legitimacy, post, at 14, n. 5, the Court concluded that “it is not the judicial role in cases of this sort to probe and test the justifications” of immigration policies. 430 U. S., at 799 (citing Mandel, 408 U. S., at 770). Lower courts have similarly applied Mandel to broad executive action. See Rajah v. Mukasey, 544 F. 3d 427, 433, 438– 439 (CA2 2008) (upholding National Security Entry-Exit Registration System instituted after September 11, 2001). Mandel’s narrow standard of review “has particular force” in admission and immigration cases that overlap with “the area of national security.” Din, 576 U. S., at ___ (KENNEDY, J., concurring in judgment) (slip op., at 3). For one, “[j]udicial inquiry into the national-security realm raises concerns for the separation of powers” by intruding on the President’s constitutional responsibilities in the area of foreign affairs. Ziglar v. Abbasi, 582 U. S. ___, ___ (2017) (slip op., at 19) (internal quotation marks omitted). For another, “when it comes to collecting evidence and drawing inferences” on questions of national security, “the
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Opinion of the Court lack of competence on the part of the courts is marked.” Humanitarian Law Project, 561 U. S., at 34. The upshot of our cases in this context is clear: “Any rule of constitutional law that would inhibit the flexibility” of the President “to respond to changing world conditions should be adopted only with the greatest caution,” and our inquiry into matters of entry and national security is highly constrained. Mathews, 426 U. S., at 81–82. We need not define the precise contours of that inquiry in this case. A conventional application of Mandel, asking only whether the policy is facially legitimate and bona fide, would put an end to our review. But the Government has suggested that it may be appropriate here for the inquiry to extend beyond the facial neutrality of the order. See Tr. of Oral Arg. 16–17, 25–27 (describing Mandel as “the starting point” of the analysis). For our purposes today, we assume that we may look behind the face of the Proc- lamation to the extent of applying rational basis review. That standard of review considers whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting pro- cesses. See Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 179 (1980). As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.5 —————— 5 The dissent finds “perplexing” the application of rational basis re- view in this context. Post, at 15. But what is far more problematic is the dissent’s assumption that courts should review immigration poli- cies, diplomatic sanctions, and military actions under the de novo “reasonable observer” inquiry applicable to cases involving holiday displays and graduation ceremonies. The dissent criticizes application of a more constrained standard of review as “throw[ing] the Establish- ment Clause out the window.” Post, at 16, n. 6. But as the numerous precedents cited in this section make clear, such a circumscribed inquiry applies to any constitutional claim concerning the entry of foreign nationals. See Part IV–C, supra. The dissent can cite no
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Opinion of the Court D Given the standard of review, it should come as no surprise that the Court hardly ever strikes down a policy as illegitimate under rational basis scrutiny. On the few occasions where we have done so, a common thread has been that the laws at issue lack any purpose other than a “bare . . . desire to harm a politically unpopular group.” Department of Agriculture v. Moreno, 413 U. S. 528, 534 (1973). In one case, we invalidated a local zoning ordi- nance that required a special permit for group homes for the intellectually disabled, but not for other facilities such as fraternity houses or hospitals. We did so on the ground that the city’s stated concerns about (among other things) “legal responsibility” and “crowded conditions” rested on “an irrational prejudice” against the intellectually dis- abled. Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 448–450 (1985) (internal quotation marks omitted). And in another case, this Court overturned a state consti- tutional amendment that denied gays and lesbians access to the protection of antidiscrimination laws. The amend- ment, we held, was “divorced from any factual context from which we could discern a relationship to legitimate state interests,” and “its sheer breadth [was] so discontin- uous with the reasons offered for it” that the initiative seemed “inexplicable by anything but animus.” Romer v. Evans, 517 U. S. 620, 632, 635 (1996). The Proclamation does not fit this pattern. It cannot be said that it is impossible to “discern a relationship to legitimate state interests” or that the policy is “inexplica- ble by anything but animus.” Indeed, the dissent can only attempt to argue otherwise by refusing to apply anything resembling rational basis review. But because there is —————— authority for its proposition that the more free-ranging inquiry it proposes is appropriate in the national security and foreign affairs context.
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Opinion of the Court persuasive evidence that the entry suspension has a legit- imate grounding in national security concerns, quite apart from any religious hostility, we must accept that inde- pendent justification. The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices. The text says nothing about religion. Plaintiffs and the dissent nonetheless emphasize that five of the seven nations currently included in the Proclama- tion have Muslim-majority populations. Yet that fact alone does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks. See 8 U. S. C. §1187(a)(12)(A) (identifying Syria and state sponsors of terrorism such as Iran as “countr[ies] or area[s] of concern” for purposes of administering the Visa Waiver Program); Dept. of Home- land Security, DHS Announces Further Travel Re- strictions for the Visa Waiver Program (Feb. 18, 2016) (designating Libya, Somalia, and Yemen as additional countries of concern); see also Rajah, 544 F. 3d, at 433, n. 3 (describing how nonimmigrant aliens from Iran, Libya, Somalia, Syria, and Yemen were covered by the National Security Entry-Exit Registration System). The Proclamation, moreover, reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies. Plaintiffs seek to discredit the findings of the review, pointing to deviations from the review’s baseline criteria resulting in the inclusion of Somalia and omission of Iraq. But as the Proclamation explains, in each case the determinations were justified by the distinct conditions in each country. Although Somalia generally satisfies the information-sharing component of the baseline criteria, it “stands apart . . . in the degree to
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Opinion of the Court which [it] lacks command and control of its territory.” Proclamation §2(h)(i). As for Iraq, the Secretary of Home- land Security determined that entry restrictions were not warranted in light of the close cooperative relationship between the U. S. and Iraqi Governments and the coun- try’s key role in combating terrorism in the region. §1(g). It is, in any event, difficult to see how exempting one of the largest predominantly Muslim countries in the region from coverage under the Proclamation can be cited as evidence of animus toward Muslims. The dissent likewise doubts the thoroughness of the multi-agency review because a recent Freedom of Infor- mation Act request shows that the final DHS report “was a mere 17 pages.” Post, at 19. Yet a simple page count offers little insight into the actual substance of the final report, much less predecisional materials underlying it. See 5 U. S. C. §552(b)(5) (exempting deliberative materials from FOIA disclosure). More fundamentally, plaintiffs and the dissent chal- lenge the entry suspension based on their perception of its effectiveness and wisdom. They suggest that the policy is overbroad and does little to serve national security inter- ests. But we cannot substitute our own assessment for the Executive’s predictive judgments on such matters, all of which “are delicate, complex, and involve large elements of prophecy.” Chicago & Southern Air Lines, Inc. v. Water- man S. S. Corp., 333 U. S. 103, 111 (1948); see also Regan v. Wald, 468 U. S. 222, 242–243 (1984) (declining invita- tion to conduct an “independent foreign policy analysis”). While we of course “do not defer to the Government’s reading of the First Amendment,” the Executive’s evalua- tion of the underlying facts is entitled to appropriate weight, particularly in the context of litigation involving “sensitive and weighty interests of national security and foreign affairs.” Humanitarian Law Project, 561 U. S., at
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Opinion of the Court 33–34.6 Three additional features of the entry policy support the Government’s claim of a legitimate national security interest. First, since the President introduced entry re- strictions in January 2017, three Muslim-majority coun- tries—Iraq, Sudan, and Chad—have been removed from the list of covered countries. The Proclamation emphasizes that its “conditional restrictions” will remain in force only so long as necessary to “address” the identified “inadequa- cies and risks,” Proclamation Preamble, and §1(h), and establishes an ongoing process to engage covered nations and assess every 180 days whether the entry restrictions should be terminated, §§4(a), (b). In fact, in announcing the termination of restrictions on nationals of Chad, the President also described Libya’s ongoing engagement with the State Department and the steps Libya is taking “to improve its practices.” Proclamation No. 9723, 83 Fed. Reg. 15939. Second, for those countries that remain subject to entry restrictions, the Proclamation includes significant excep- tions for various categories of foreign nationals. The policy permits nationals from nearly every covered country to travel to the United States on a variety of nonimmi- grant visas. See, e.g., §§2(b)–(c), (g), (h) (permitting stu- dent and exchange visitors from Iran, while restricting only business and tourist nonimmigrant entry for nation- als of Libya and Yemen, and imposing no restrictions on
—————— 6 The dissent recycles much of plaintiffs’ §1182(f ) argument to assert that “Congress has already erected a statutory scheme that fulfills” the President’s stated concern about deficient vetting. Post, at 19–21. But for the reasons set forth earlier, Congress has not in any sense “stepped into the space and solved the exact problem.” Tr. of Oral Arg. 53. Neither the existing inadmissibility grounds nor the narrow Visa Waiver Program address the failure of certain high-risk countries to provide a minimum baseline of reliable information. See Part III–B–1, supra.
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Opinion of the Court nonimmigrant entry for Somali nationals). These carve- outs for nonimmigrant visas are substantial: Over the last three fiscal years—before the Proclamation was in effect— the majority of visas issued to nationals from the covered countries were nonimmigrant visas. Brief for Petitioners 57. The Proclamation also exempts permanent resi- dents and individuals who have been granted asylum. §§3(b)(i), (vi). Third, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immi- grants or nonimmigrants. According to the Proclamation, consular officers are to consider in each admissibility determination whether the alien demonstrates that (1) denying entry would cause undue hardship; (2) entry would not pose a threat to public safety; and (3) entry would be in the interest of the United States. §3(c)(i); see also §3(c)(iv) (listing examples of when a waiver might be appropriate, such as if the foreign national seeks to reside with a close family member, obtain urgent medical care, or pursue significant business obligations). On its face, this program is similar to the humanitarian exceptions set forth in President Carter’s order during the Iran hostage crisis. See Exec. Order No. 12206, 3 CFR 249; Public Papers of the Presidents, Jimmy Carter, Sanctions Against Iran, at 611–612 (1980) (outlining exceptions). The Proclamation also directs DHS and the State Depart- ment to issue guidance elaborating upon the circumstances that would justify a waiver.7
—————— 7 JUSTICE BREYER focuses on only one aspect of our consideration—the waiver program and other exemptions in the Proclamation. Citing selective statistics, anecdotal evidence, and a declaration from unre- lated litigation, JUSTICE BREYER suggests that not enough individuals are receiving waivers or exemptions. Post, at 4–8 (dissenting opinion). Yet even if such an inquiry were appropriate under rational basis review, the evidence he cites provides “but a piece of the picture,” post, at 6, and does not affect our analysis.
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Opinion of the Court Finally, the dissent invokes Korematsu v. United States, 323 U. S. 214 (1944). Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Pres- idential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy deny- ing certain foreign nationals the privilege of admission. See post, at 26–28. The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation. The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is al- ready obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitu- tion.” 323 U. S., at 248 (Jackson, J., dissenting). * * * Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the sound- ness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim. V Because plaintiffs have not shown that they are likely to succeed on the merits of their claims, we reverse the grant of the preliminary injunction as an abuse of discretion. Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 32 (2008). The case now returns to the lower courts for such further proceedings as may be appropriate.
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Opinion of the Court Our disposition of the case makes it unnecessary to con- sider the propriety of the nationwide scope of the injunc- tion issued by the District Court. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
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KENNEDY, J., concurring SUPREME COURT OF THE UNITED STATES ______No. 17–965 ______DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS v. HAWAII, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 26, 2018]
JUSTICE KENNEDY, concurring. I join the Court’s opinion in full. There may be some common ground between the opin- ions in this case, in that the Court does acknowledge that in some instances, governmental action may be subject to judicial review to determine whether or not it is “inexpli- cable by anything but animus,” Romer v. Evans, 517 U. S. 620, 632 (1996), which in this case would be animosity to a religion. Whether judicial proceedings may properly continue in this case, in light of the substantial deference that is and must be accorded to the Executive in the con- duct of foreign affairs, and in light of today’s decision, is a matter to be addressed in the first instance on remand. And even if further proceedings are permitted, it would be necessary to determine that any discovery and other pre- liminary matters would not themselves intrude on the foreign affairs power of the Executive. In all events, it is appropriate to make this further observation. There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even 2 TRUMP v. HAWAII
KENNEDY, J., concurring comment upon what those officials say or do. Indeed, the very fact that an official may have broad discretion, dis- cretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise. The First Amendment prohibits the establishment of religion and promises the free exercise of religion. From these safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression. It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their ac- tions, even in the sphere of foreign affairs. An anxious world must know that our Government remains commit- ted always to the liberties the Constitution seeks to pre- serve and protect, so that freedom extends outward, and lasts. Cite as: 585 U. S. ____ (2018) 1
THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES ______No. 17–965 ______DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS v. HAWAII, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 26, 2018]
THOMAS, J., concurring. I join the Court’s opinion, which highlights just a few of the many problems with the plaintiffs’ claims. There are several more. Section 1182(f) does not set forth any judi- cially enforceable limits that constrain the President. See Webster v. Doe, 486 U. S. 592, 600 (1988). Nor could it, since the President has inherent authority to exclude aliens from the country. See United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542–543 (1950); accord, Sessions v. Dimaya, 584 U. S. ___, ___–___ (2018) (THOMAS, J., dissenting) (slip op., at 13–14). Further, the Establishment Clause does not create an individual right to be free from all laws that a “reasonable observer” views as religious or antireligious. See Town of Greece v. Gallo- way, 572 U. S. ___, ___ (2014) (THOMAS, J., concurring in part and concurring in judgment) (slip op., at 6); Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 52–53 (2004) (THOMAS, J., concurring in judgment). The plaintiffs cannot raise any other First Amendment claim, since the alleged religious discrimination in this case was directed at aliens abroad. See United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990). And, even on its own terms, the plaintiffs’ proffered evidence of anti-Muslim discrimina- tion is unpersuasive. Merits aside, I write separately to address the remedy
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THOMAS, J., concurring that the plaintiffs sought and obtained in this case. The District Court imposed an injunction that barred the Government from enforcing the President’s Proclamation against anyone, not just the plaintiffs. Injunctions that prohibit the Executive Branch from applying a law or policy against anyone—often called “universal” or “na- tionwide” injunctions—have become increasingly com- mon.1 District courts, including the one here, have begun imposing universal injunctions without considering their authority to grant such sweeping relief. These injunctions are beginning to take a toll on the federal court system— preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch. I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality. I If district courts have any authority to issue universal injunctions, that authority must come from a statute or the Constitution. See Missouri v. Jenkins, 515 U. S. 70
—————— 1 “Nationwide injunctions” is perhaps the more common term. But I use the term “universal injunctions” in this opinion because it is more precise. These injunctions are distinctive because they prohibit the Government from enforcing a policy with respect to anyone, including nonparties—not because they have wide geographic breadth. An injunction that was properly limited to the plaintiffs in the case would not be invalid simply because it governed the defendant’s conduct nationwide.
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THOMAS, J., concurring
124 (1995) (THOMAS, J., concurring). No statute expressly grants district courts the power to issue universal injunc- tions.2 So the only possible bases for these injunctions are a generic statute that authorizes equitable relief or the courts’ inherent constitutional authority. Neither of those sources would permit a form of injunctive relief that is “[in]consistent with our history and traditions.” Ibid. A This Court has never treated general statutory grants of equitable authority as giving federal courts a freewheeling power to fashion new forms of equitable remedies. Rather, it has read such statutes as constrained by “the body of law which had been transplanted to this country from the English Court of Chancery” in 1789. Guaranty Trust Co. v. York, 326 U. S. 99, 105 (1945). As Justice Story ex- plained, this Court’s “settled doctrine” under such statutes is that “the remedies in equity are to be administered . . . according to the practice of courts of equity in [England].” Boyle v. Zacharie & Turner, 6 Pet. 648, 658 (1832). More recently, this Court reiterated that broad statutory grants of equitable authority give federal courts “ ‘an authority to administer in equity suits the principles of the system of judicial remedies which had been devised and was being administered by the English Court of Chancery at the time of the separation of the two countries.’ ” Grupo Mexi- cano de Desarrollo S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 318 (1999) (Scalia, J.) (quoting Atlas Life Ins. Co. v. W. I. Southern, Inc., 306 U. S. 563, 568 (1939)).
—————— 2 Even if Congress someday enacted a statute that clearly and ex- pressly authorized universal injunctions, courts would need to consider whether that statute complies with the limits that Article III places on the authority of federal courts. See infra, at 7–8.
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THOMAS, J., concurring B The same is true of the courts’ inherent constitutional authority to grant equitable relief, assuming any such authority exists. See Jenkins, 515 U. S., at 124 (THOMAS, J., concurring). This authority is also limited by the tradi- tional rules of equity that existed at the founding. The scope of the federal courts’ equitable authority under the Constitution was a point of contention at the founding, and the “more limited construction” of that power prevailed. Id., at 126. The founding generation viewed equity “with suspicion.” Id., at 128. Several anti- Federalists criticized the Constitution’s extension of the federal judicial power to “Case[s] in . . . Equity,” Art. III, §2, as “giv[ing] the judge a discretionary power.” Letters from The Federal Farmer No. XV (Jan. 18, 1788), in 2 The Complete Anti-Federalist 315, 322 (H. Storing ed. 1981). That discretionary power, the anti-Federalists alleged, would allow courts to “explain the constitution according to the reasoning spirit of it, without being confined to the words or letter.” Essays of Brutus No. XI (Jan. 31, 1788), in id., at 417, 419–420. The Federalists responded to this concern by emphasizing the limited nature of equity. Hamilton explained that the judiciary would be “bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” The Federalist No. 78, p. 471 (C. Rossiter ed. 1961) (Federalist). Although the purpose of a court of equity was “to give relief in extraordinary cases, which are exceptions to general rules,” “the principles by which that relief is governed are now reduced to a regular system.” Id. No. 83 at 505 (emphasis deleted). The Federalists’ explanation was consistent with how equity worked in 18th-century England. English courts of equity applied established rules not only when they decided the merits, but also when they fashioned remedies. Like other aspects of equity, “the system of relief adminis-
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THOMAS, J., concurring tered by a court of equity” had been reduced “into a regu- lar science.” 3 W. Blackstone, Commentaries on the Laws of England 440–441 (1768) (Blackstone). As early as 1768, Blackstone could state that the “remedy a suitor is enti- tled to expect” could be determined “as readily and with as much precision, in a court of equity as in a court of law.” Id., at 441. Although courts of equity exercised remedial “discretion,” that discretion allowed them to deny or tailor a remedy despite a demonstrated violation of a right, not to expand a remedy beyond its traditional scope. See G. Keeton, An Introduction to Equity 117–118 (1938). In short, whether the authority comes from a statute or the Constitution, district courts’ authority to provide equitable relief is meaningfully constrained. This author- ity must comply with longstanding principles of equity that predate this country’s founding. II Universal injunctions do not seem to comply with those principles. These injunctions are a recent development, emerging for the first time in the 1960s and dramatically increasing in popularity only very recently. And they appear to conflict with several traditional rules of equity, as well as the original understanding of the judicial role. Equity originated in England as a means for the Crown to dispense justice by exercising its sovereign authority. See Adams, The Origins of English Equity, 16 Colum. L. Rev. 87, 91 (1916). Petitions for equitable relief were referred to the Chancellor, who oversaw cases in equity. See 1 S. Symon’s, Pomeroy’s, Equity Jurisprudence §33 (5th ed. 1941) (Pomeroy); G. McDowell, Equity and the Constitution 24 (1982). The Chancellor’s equitable juris- diction was based on the “reserve of justice in the king.” F. Maitland, Equity 3 (2d ed. 1936); see also 1 Pomeroy §33, at 38 (describing the Chancellor’s equitable authority as an “extraordinary jurisdiction—that of Grace—by delega-
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THOMAS, J., concurring tion” from the King). Equity allowed the sovereign to afford discretionary relief to parties where relief would not have been available under the “rigors of the common law.” Jenkins, supra, at 127 (opinion of THOMAS, J.). The English system of equity did not contemplate uni- versal injunctions. As an agent of the King, the Chancel- lor had no authority to enjoin him. See Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 425 (2017) (Bray). The Chancellor could not give “any relief against the king, or direct any act to be done by him, or make any decree disposing of or affecting his property; not even in cases where he is a royal trus- tee.” 3 Blackstone 428. The Attorney General could be sued in Chancery, but not in cases that “ ‘immediately concerned’ ” the interests of the Crown. Bray 425 (citing 1 E. Daniell, The Practice of the High Court of Chancery 138 (2d ed. 1845)). American courts inherited this tradition. See J. Story, Commentaries on Equity Pleadings §69 (1838) (Story). Moreover, as a general rule, American courts of equity did not provide relief beyond the parties to the case. If their injunctions advantaged nonparties, that benefit was merely incidental. Injunctions barring public nuisances were an example. While these injunctions benefited third parties, that benefit was merely a consequence of provid- ing relief to the plaintiff. Woolhandler & Nelson, Does History Defeat Standing Doctrine? 102 Mich. L. Rev. 689, 702 (2004) (Woolhandler & Nelson); see Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518, 564 (1852) (explaining that a private “injury makes [a public nui- sance] a private nuisance to the injured party”). True, one of the recognized bases for an exercise of equitable power was the avoidance of “multiplicity of suits.” Bray 426; accord, 1 Pomeroy §243. Courts would employ “bills of peace” to consider and resolve a number of suits in a single proceeding. Id., §246. And some authori-
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THOMAS, J., concurring ties stated that these suits could be filed by one plaintiff on behalf of a number of others. Id., §251. But the “gen- eral rule” was that “all persons materially interested . . . in the subject-matter of a suit, are to be made parties to it . . . , however numerous they may be, so that there may be a complete decree, which shall bind them all.” Story §72, at 61 (emphasis added). And, in all events, these “proto- class action[s]” were limited to a small group of similarly situated plaintiffs having some right in common. Bray 426–427; see also Story §120, at 100 (explaining that such suits were “always” based on “a common interest or a common right”). American courts’ tradition of providing equitable relief only to parties was consistent with their view of the na- ture of judicial power. For most of our history, courts understood judicial power as “fundamentall[y] the power to render judgments in individual cases.” Murphy v. National Collegiate Athletic Assn., 584 U. S. ___, ___–___ (2018) (THOMAS, J., concurring) (slip op., at 2–3). They did not believe that courts could make federal policy, and they did not view judicial review in terms of “striking down” laws or regulations. See id., at ___–___ (slip op., at 3–4). Misuses of judicial power, Hamilton reassured the people of New York, could not threaten “the general liberty of the people” because courts, at most, adjudicate the rights of “individual[s].” Federalist No. 78, at 466. The judiciary’s limited role was also reflected in this Court’s decisions about who could sue to vindicate certain rights. See Spokeo, Inc. v. Robins, 578 U. S. ___, ___–___ (2016) (THOMAS, J., concurring) (slip op., at 2–4). A plain- tiff could not bring a suit vindicating public rights—i.e., rights held by the community at large—without a showing of some specific injury to himself. Id., at ___–___ (slip op., at 3–4). And a plaintiff could not sue to vindicate the private rights of someone else. See Woolhandler & Nelson 715–716. Such claims were considered to be beyond the
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THOMAS, J., concurring authority of courts. Id., at 711–717. This Court has long respected these traditional limits on equity and judicial power. See, e.g., Scott v. Donald, 165 U. S. 107, 115 (1897) (rejecting an injunction based on the theory that the plaintiff “so represents [a] class” whose rights were infringed by a statute as “too conjectural to furnish a safe basis upon which a court of equity ought to grant an injunction”). Take, for example, this Court’s decision in Massachusetts v. Mellon, 262 U. S. 447 (1923). There, a taxpayer sought to enjoin the enforcement of an appropriation statute. The Court noted that this kind of dispute “is essentially a matter of public and not of indi- vidual concern.” Id., at 487. A general interest in enjoin- ing implementation of an illegal law, this Court explained, provides “no basis . . . for an appeal to the preventive powers of a court of equity.” Ibid. Courts can review the constitutionality of an act only when “a justiciable issue” requires it to decide whether to “disregard an unconstitu- tional enactment.” Id., at 488. If the statute is unconsti- tutional, then courts enjoin “not the execution of the stat- ute, but the acts of the official.” Ibid. Courts cannot issue an injunction based on a mere allegation “that officials of the executive department of the government are executing and will execute an act of Congress asserted to be uncon- stitutional.” Ibid. “To do so would be not to decide a judicial controversy.” Id., at 488–489. By the latter half of the 20th century, however, some jurists began to conceive of the judicial role in terms of resolving general questions of legality, instead of address- ing those questions only insofar as they are necessary to resolve individual cases and controversies. See Bray 451. That is when what appears to be “the first [universal] injunction in the United States” emerged. Bray 438. In Wirtz v. Baldor Elec. Co., 337 F. 2d 518 (CADC 1963), the Court of Appeals for the District of Columbia Circuit addressed a lawsuit challenging the Secretary of Labor’s
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THOMAS, J., concurring determination of the prevailing minimum wage for a particular industry. Id., at 520. The D. C. Circuit con- cluded that the Secretary’s determination was unsupported, but remanded for the District Court to assess whether any of the plaintiffs had standing to challenge it. Id., at 521–535. The D. C. Circuit also addressed the question of remedy, explaining that if a plaintiff had standing to sue then “the District Court should enjoin . . . the Secretary’s determination with respect to the entire industry.” Id., at 535 (emphasis added). To justify this broad relief, the D. C. Circuit explained that executive officers should honor judicial decisions “in all cases of essentially the same character.” Id., at 534. And it noted that, once a court has decided an issue, it “would ordinarily give the same relief to any individual who comes to it with an essentially similar cause of action.” Ibid. The D. C. Cir- cuit added that the case was “clearly a proceeding in which those who have standing are here to vindicate the public interest in having congressional enactments prop- erly interpreted and applied.” Id., at 534–535. Universal injunctions remained rare in the decades following Wirtz. See Bray 440–445. But recently, they have exploded in popularity. See id., at 457–459. Some scholars have criticized the trend. See generally id., at 457–465; Morley, Nationwide Injunctions, Rule 23(b)(2), and the Remedial Powers of the Lower Courts, 97 B. U. L. Rev. 615, 633–653 (2017); Morley, De Facto Class Ac- tions? Plaintiff- and Defendant-Oriented Injunctions in Voting Rights, Election Law, and Other Constitutional Cases, 39 Harv. J. L. & Pub. Pol’y 487, 521–538 (2016). No persuasive defense has yet been offered for the prac- tice. Defenders of these injunctions contend that they ensure that individuals who did not challenge a law are treated the same as plaintiffs who did, and that universal injunctions give the judiciary a powerful tool to check the Executive Branch. See Amdur & Hausman, Nationwide
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THOMAS, J., concurring Injunctions and Nationwide Harm, 131 Harv. L. Rev. Forum 49, 51, 54 (2017); Malveaux, Class Actions, Civil Rights, and the National Injunction, 131 Harv. L. Rev. Forum 56, 57, 60–62 (2017). But these arguments do not explain how these injunctions are consistent with the historical limits on equity and judicial power. They at best “boi[l] down to a policy judgment” about how powers ought to be allocated among our three branches of gov- ernment. Perez v. Mortgage Bankers Assn., 575 U. S. ___, ___ (2015) (THOMAS, J., concurring in judgment) (slip op., at 23). But the people already made that choice when they ratified the Constitution. * * * In sum, universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so.
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BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES ______No. 17–965 ______DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS v. HAWAII, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 26, 2018]
JUSTICE BREYER, with whom JUSTICE KAGAN joins, dissenting. The question before us is whether Proclamation No. 9645 is lawful. If its promulgation or content was signifi- cantly affected by religious animus against Muslims, it would violate the relevant statute or the First Amendment itself. See 8 U. S. C. §1182(f) (requiring “find[ings]” that persons denied entry “would be detrimental to the inter- ests of the United States”); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993) (First Amendment); Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___ (2018) (same); post, at 2–4 (SOTOMAYOR, J., dissenting). If, however, its sole ratio decidendi was one of national security, then it would be unlikely to violate either the statute or the Constitution. Which is it? Members of the Court principally disagree about the answer to this question, i.e., about whether or the extent to which religious animus played a significant role in the Proclamation’s promulgation or content. In my view, the Proclamation’s elaborate system of exemptions and waivers can and should help us answer this question. That system provides for case-by-case consideration of persons who may qualify for visas despite the Proclamation’s general ban. Those persons include lawful permanent residents, asylum seekers, refugees,
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BREYER, J., dissenting students, children, and numerous others. There are likely many such persons, perhaps in the thousands. And I believe it appropriate to take account of their Proclamation- granted status when considering the Proclamation’s lawfulness. The Solicitor General asked us to consider the Proclamation “as” it is “written” and “as” it is “applied,” waivers and exemptions included. Tr. of Oral Arg. 38. He warned us against considering the Proclamation’s lawful- ness “on the hypothetical situation that [the Proclamation] is what it isn’t,” ibid., while telling us that its waiver and exemption provisions mean what they say: The Proclama- tion does not exclude individuals from the United States “if they meet the criteria” for a waiver or exemption. Id., at 33. On the one hand, if the Government is applying the exemption and waiver provisions as written, then its argument for the Proclamation’s lawfulness is strength- ened. For one thing, the Proclamation then resembles more closely the two important Presidential precedents on point, President Carter’s Iran order and President Reagan’s Cuba proclamation, both of which contained similar categories of persons authorized to obtain case-by- case exemptions. Ante, at 36–37; Exec. Order No. 12172, 44 Fed. Reg. 67947 (1979), as amended by Exec. Order No. 12206, 45 Fed. Reg. 24101 (1980); Presidential Proclama- tion No. 5517, 51 Fed. Reg. 30470 (1986). For another thing, the Proclamation then follows more closely the basic statutory scheme, which provides for strict case-by-case scrutiny of applications. It would deviate from that sys- tem, not across the board, but where circumstances may require that deviation. Further, since the case-by-case exemptions and waivers apply without regard to the individual’s religion, applica- tion of that system would help make clear that the Proc- lamation does not deny visas to numerous Muslim indi- viduals (from those countries) who do not pose a security
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BREYER, J., dissenting threat. And that fact would help to rebut the First Amendment claim that the Proclamation rests upon anti- Muslim bias rather than security need. Finally, of course, the very fact that Muslims from those countries would enter the United States (under Proclamation-provided exemptions and waivers) would help to show the same thing. On the other hand, if the Government is not applying the system of exemptions and waivers that the Proclama- tion contains, then its argument for the Proclamation’s lawfulness becomes significantly weaker. For one thing, the relevant precedents—those of Presidents Carter and Reagan—would bear far less resemblance to the present Proclamation. Indeed, one might ask, if those two Presi- dents thought a case-by-case exemption system appropri- ate, what is different about present circumstances that would justify that system’s absence? For another thing, the relevant statute requires that there be “find[ings]” that the grant of visas to excluded persons would be “detrimental to the interests of the
United States.” §1182(f ). Yet there would be no such findings in respect to those for whom the Proclamation itself provides case-by-case examination (followed by the grant of a visa in appropriate cases). And, perhaps most importantly, if the Government is not applying the Proclamation’s exemption and waiver system, the claim that the Proclamation is a “Muslim ban,” rather than a “security-based” ban, becomes much stronger. How could the Government successfully claim that the Proclamation rests on security needs if it is ex- cluding Muslims who satisfy the Proclamation’s own terms? At the same time, denying visas to Muslims who meet the Proclamation’s own security terms would support the view that the Government excludes them for reasons based upon their religion. Unfortunately there is evidence that supports the sec-
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BREYER, J., dissenting ond possibility, i.e., that the Government is not applying the Proclamation as written. The Proclamation provides that the Secretary of State and the Secretary of Homeland Security “shall coordinate to adopt guidance” for consular officers to follow when deciding whether to grant a waiver. §3(c)(ii). Yet, to my knowledge, no guidance has issued. The only potentially relevant document I have found consists of a set of State Department answers to certain Frequently Asked Questions, but this document simply restates the Proclamation in plain language for visa appli- cants. It does not provide guidance for consular officers as to how they are to exercise their discretion. See Dept. of State, FAQs on the Presidential Proclamation, https:// travel.state.gov/content/travel/en/us-visas/visa-information- resources/presidential-proclamation-archive/2017-12-04- Presidential-Proclamation.html (all Internet materials as last visited June 25, 2018). An examination of publicly available statistics also provides cause for concern. The State Department reported that during the Proclamation’s first month, two waivers were approved out of 6,555 eligible applicants. Letter from M. Waters, Assistant Secretary Legislative Affairs, to Sen. Van Hollen (Feb. 22, 2018). In its reply brief, the Government claims that number increased from 2 to 430 during the first four months of implementation. Reply Brief 17. That number, 430, however, when compared with the number of pre-Proclamation visitors, accounts for a miniscule percentage of those likely eligible for visas, in such categories as persons requiring medical treatment, academic visitors, students, family members, and others belonging to groups that, when considered as a group (rather than case by case), would not seem to pose security threats. Amici have suggested that there are numerous appli- cants who could meet the waiver criteria. For instance, the Proclamation anticipates waivers for those with “sig-
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BREYER, J., dissenting nificant business or professional obligations” in the United States, §3(c)(iv)(C), and amici identify many scholars who would seem to qualify. Brief for Colleges and Universities as Amici Curiae 25–27; Brief for American Council on Education et al. as Amici Curiae 20 (identifying more than 2,100 scholars from covered countries); see also Brief for Massachusetts Technology Leadership Council, Inc., as Amicus Curiae 14–15 (identifying technology and business leaders from covered countries). The Proclamation also anticipates waivers for those with a “close family member (e.g., a spouse, child, or parent)” in the United States, §3(c)(iv)(D), and amici identify many such individuals affected by the Proclamation. Brief for Labor Organiza- tions as Amici Curiae 15–18 (identifying children and other relatives of U. S. citizens). The Pars Equality Cen- ter identified 1,000 individuals—including parents and children of U. S. citizens—who sought and were denied entry under the Proclamation, hundreds of whom seem to meet the waiver criteria. See Brief for Pars Equality Center et al. as Amici Curiae 12–28. Other data suggest the same. The Proclamation does not apply to asylum seekers or refugees. §§3(b)(vi), 6(e). Yet few refugees have been admitted since the Proclama- tion took effect. While more than 15,000 Syrian refugees arrived in the United States in 2016, only 13 have arrived since January 2018. Dept. of State, Bureau of Population, Refugees, and Migration, Interactive Reporting, Refugee Processing Center, http://ireports.wrapsnet.org. Similarly few refugees have been admitted since January from Iran (3), Libya (1), Yemen (0), and Somalia (122). Ibid. The Proclamation also exempts individuals applying for several types of nonimmigrant visas: lawful permanent residents, parolees, those with certain travel documents, dual nationals of noncovered countries, and representa- tives of governments or international organizations. §§3(b)(i)–(v). It places no restrictions on the vast majority
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BREYER, J., dissenting of student and exchange visitors, covering only those from Syria, which provided 8 percent of student and exchange visitors from the five countries in 2016. §§2(b)–(h); see Dept. of State, Report of the Visa Office 2016, Table XVII Nonimmigrant Visas Issued Fiscal Year 2016 (Visa Report 2016 Table XVII). Visitors from Somalia are eligible for any type of nonimmigrant visa, subject to “additional scrutiny.” §2(h)(ii). If nonimmigrant visa applications under the Proclamation resemble those in 2016, 16 per- cent of visa applicants would be eligible for exemptions. See Visa Report 2016 Table XVII. In practice, however, only 258 student visas were issued to applicants from Iran (189), Libya (29), Yemen (40), and Somalia (0) in the first three months of 2018. See Dept. of State, Nonimmigrant Visa Issuances by Nationality, Jan., Feb., and Mar. 2018. This is less than a quarter of the volume needed to be on track for 2016 student visa levels. And only 40 nonimmigrant visas have been issued to Somali nationals, a decrease of 65 percent from 2016. Ibid.; see Visa Report 2016 Table XVII. While this is but a piece of the picture, it does not provide grounds for confidence. Anecdotal evidence further heightens these concerns. For example, one amicus identified a child with cerebral palsy in Yemen. The war had prevented her from receiv- ing her medication, she could no longer move or speak, and her doctors said she would not survive in Yemen. Her visa application was denied. Her family received a form with a check mark in the box unambiguously confirming that “ ‘a waiver will not be granted in your case.’ ” Letter from L. Blatt to S. Harris, Clerk of Court (May 1, 2018). But after the child’s case was highlighted in an amicus brief before this Court, the family received an update from the consular officer who had initially denied the waiver. It turns out, according to the officer, that she had all along determined that the waiver criteria were met. But, the
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BREYER, J., dissenting officer explained, she could not relay that information at the time because the waiver required review from a super- visor, who had since approved it. The officer said that the family’s case was now in administrative processing and that she was attaching a “ ‘revised refusal letter indicating the approval of the waiver.’ ” Ibid. The new form did not actually approve the waiver (in fact, the form contains no box saying “granted”). But a different box was now checked, reading: “ ‘The consular officer is reviewing your eligibility for a waiver under the Proclamation. . . . This can be a lengthy process, and until the consular officer can make an individualized determination of [the relevant] factors, your visa application will remain refused under
Section 212(f) [of the Proclamation].’ ” Ibid. One is left to wonder why this second box, indicating continuing review, had not been checked at the outset if in fact the child’s case had remained under consideration all along. Though this is but one incident and the child was admitted after considerable international attention in this case, it pro- vides yet more reason to believe that waivers are not being processed in an ordinary way. Finally, in a pending case in the Eastern District of New York, a consular official has filed a sworn affidavit assert- ing that he and other officials do not, in fact, have discre- tion to grant waivers. According to the affidavit, consular officers “were not allowed to exercise that discretion” and
“the waiver [process] is merely ‘window dressing.’ ” See Decl. of Christopher Richardson, Alharbi v. Miller, No. 1:18-cv-2435 (June 1, 2018), pp. 3–4. Another report similarly indicates that the U. S. Embassy in Djibouti, which processes visa applications for citizens of Yemen, received instructions to grant waivers “only in rare cases of imminent danger,” with one consular officer reportedly telling an applicant that “ ‘[e]ven for infants, we would need to see some evidence of a congenital heart defect or another medical issue of that degree of difficulty
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BREYER, J., dissenting that . . . would likely lead to the child’s developmental harm or death.’ ” Center for Constitutional Rights and the Rule of Law Clinic, Yale Law School, Window Dressing the Muslim Ban: Reports of Waivers and Mass Denials from Yemeni-American Families Stuck in Limbo 18 (2018). Declarations, anecdotal evidence, facts, and numbers taken from amicus briefs are not judicial factfindings. The Government has not had an opportunity to respond, and a court has not had an opportunity to decide. But, given the importance of the decision in this case, the need for assur- ance that the Proclamation does not rest upon a “Muslim ban,” and the assistance in deciding the issue that an- swers to the “exemption and waiver” questions may pro- vide, I would send this case back to the District Court for further proceedings. And, I would leave the injunction in effect while the matter is litigated. Regardless, the Court’s decision today leaves the District Court free to explore these issues on remand. If this Court must decide the question without this further litigation, I would, on balance, find the evidence of antireligious bias, including statements on a website taken down only after the President issued the two execu- tive orders preceding the Proclamation, along with the other statements also set forth in JUSTICE SOTOMAYOR’s opinion, a sufficient basis to set the Proclamation aside. And for these reasons, I respectfully dissent.
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SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES ______No. 17–965 ______DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS v. HAWAII, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 26, 2018]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, dissenting. The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neu trality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Mus lims entering the United States” because the policy now masquerades behind a façade of national-security con cerns. But this repackaging does little to cleanse Presi dential Proclamation No. 9645 of the appearance of dis crimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Estab lishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Procla mation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent.
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SOTOMAYOR, J., dissenting I Plaintiffs challenge the Proclamation on various grounds, both statutory and constitutional. Ordinarily, when a case can be decided on purely statutory grounds, we strive to follow a “prudential rule of avoiding constitu tional questions.” Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, 8 (1993). But that rule of thumb is far from categorical, and it has limited application where, as here, the constitutional question proves far simpler than the statutory one. Whatever the merits of plaintiffs’ com plex statutory claims, the Proclamation must be enjoined for a more fundamental reason: It runs afoul of the Estab lishment Clause’s guarantee of religious neutrality. A The Establishment Clause forbids government policies “respecting an establishment of religion.” U. S. Const., Amdt. 1. The “clearest command” of the Establishment Clause is that the Government cannot favor or disfavor one religion over another. Larson v. Valente, 456 U. S. 228, 244 (1982); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532 (1993) (“[T]he First Amend ment forbids an official purpose to disapprove of a particu lar religion”); Edwards v. Aguillard, 482 U. S. 578, 593 (1987) (“The Establishment Clause . . . forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma” (internal quotation marks omitted)); Lynch v. Donnelly, 465 U. S. 668, 673 (1984) (noting that the Establishment Clause “forbids hostility toward any [religion],” because “such hostility would bring us into ‘war with our national tradition as embodied in the First Amendmen[t]’ ”); Epper son v. Arkansas, 393 U. S. 97, 106 (1968) (“[T]he State may not adopt programs or practices . . . which aid or oppose any religion. This prohibition is absolute” (citation and internal quotation marks omitted)). Consistent with
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SOTOMAYOR, J., dissenting that clear command, this Court has long acknowledged that governmental actions that favor one religion “inevi tabl[y]” foster “the hatred, disrespect and even contempt of those who [hold] contrary beliefs.” Engel v. Vitale, 370 U. S. 421, 431 (1962). That is so, this Court has held, because such acts send messages to members of minority faiths “ ‘that they are outsiders, not full members of the political community.’ ” Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 309 (2000). To guard against this serious harm, the Framers mandated a strict “principle of denominational neutrality.” Larson, 456 U. S., at 246; Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687, 703 (1994) (recognizing the role of courts in “safeguarding a principle at the heart of the Establish ment Clause, that government should not prefer one reli gion to another, or religion to irreligion”). “When the government acts with the ostensible and predominant purpose” of disfavoring a particular religion, “it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides.” McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844, 860 (2005). To determine whether plaintiffs have proved an Establishment Clause violation, the Court asks whether a reasonable observer would view the gov ernment action as enacted for the purpose of disfavoring a religion. See id., at 862, 866; accord, Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (plurality opinion) (slip op., at 19). In answering that question, this Court has generally considered the text of the government policy, its operation, and any available evidence regarding “the historical back ground of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by” the
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SOTOMAYOR, J., dissenting decisionmaker. Lukumi, 508 U. S., at 540 (opinion of KENNEDY, J.); McCreary, 545 U. S., at 862 (courts must evaluate “text, legislative history, and implementation . . . , or comparable official act” (internal quotation marks omitted)). At the same time, however, courts must take care not to engage in “any judicial psychoanalysis of a drafter’s heart of hearts.” Id., at 862. B 1 Although the majority briefly recounts a few of the statements and background events that form the basis of plaintiffs’ constitutional challenge, ante, at 27–28, that highly abridged account does not tell even half of the story. See Brief for The Roderick & Solange MacArthur Justice Center as Amicus Curiae 5–31 (outlining President Trump’s public statements expressing animus toward Islam). The full record paints a far more harrowing pic ture, from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith. During his Presidential campaign, then-candidate Don ald Trump pledged that, if elected, he would ban Muslims from entering the United States. Specifically, on Decem ber 7, 2015, he issued a formal statement “calling for a total and complete shutdown of Muslims entering the United States.” App. 119. That statement, which re mained on his campaign website until May 2017 (several months into his Presidency), read in full: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on. According to Pew Research, among others, there is great hatred towards Americans by large segments of the Muslim population. Most recently, a poll from the Center for Security Policy released data
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SOTOMAYOR, J., dissenting showing ‘25% of those polled agreed that violence against Americans here in the United States is justi fied as a part of the global jihad’ and 51% of those polled ‘agreed that Muslims in America should have the choice of being governed according to Shariah.’ Shariah authorizes such atrocities as murder against nonbelievers who won’t convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women. “Mr. Trum[p] stated, ‘Without looking at the vari ous polling data, it is obvious to anybody the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of the horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect of human life. If I win the election for Presi dent, we are going to Make America Great Again.’— Donald J. Trump.” Id., at 158; see also id., at 130– 131. On December 8, 2015, Trump justified his proposal during a television interview by noting that President Franklin D. Roosevelt “did the same thing” with respect to the internment of Japanese Americans during World War II. Id., at 120. In January 2016, during a Republican primary debate, Trump was asked whether he wanted to
“rethink [ his] position” on “banning Muslims from enter ing the country.” Ibid. He answered, “No.” Ibid. A month later, at a rally in South Carolina, Trump told an apocryphal story about United States General John J. Pershing killing a large group of Muslim insurgents in the Philippines with bullets dipped in pigs’ blood in the early 1900’s. Id., at 163–164. In March 2016, he expressed his belief that “Islam hates us. . . . [W]e can’t allow people
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SOTOMAYOR, J., dissenting coming into this country who have this hatred of the United States . . . [a]nd of people that are not Muslim.” Id., at 120–121. That same month, Trump asserted that “[w]e’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.” Id., at 121. He therefore called for surveillance of mosques in the United States, blaming terrorist attacks on Muslims’ lack of “assimilation” and their commitment to “sharia law.” Ibid.; id., at 164. A day later, he opined that Muslims “do not respect us at all” and “don’t respect a lot of the things that are happening throughout not only our country, but they don’t respect other things.” Ibid. As Trump’s presidential campaign progressed, he began to describe his policy proposal in slightly different terms. In June 2016, for instance, he characterized the policy proposal as a suspension of immigration from countries “where there’s a proven history of terrorism.” Id., at 121. He also described the proposal as rooted in the need to stop “importing radical Islamic terrorism to the West through a failed immigration system.” Id., at 121–122. Asked in July 2016 whether he was “pull[ing] back from” his pledged Muslim ban, Trump responded, “I actually don’t think it’s a rollback. In fact, you could say it’s an expansion.” Id., at 122–123. He then explained that he used different terminology because “[p]eople were so upset when [he] used the word Muslim.” Id., at 123. A month before the 2016 election, Trump reiterated that his proposed “Muslim ban” had “morphed into a[n] ex treme vetting from certain areas of the world.” Ibid. Then, on December 21, 2016, President-elect Trump was asked whether he would “rethink” his previous “plans to create a Muslim registry or ban Muslim immigration.” Ibid. He replied: “You know my plans. All along, I’ve proven to be right.” Ibid. On January 27, 2017, one week after taking office, President Trump signed Executive Order No. 13769, 82
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SOTOMAYOR, J., dissenting Fed. Reg. 8977 (2017) (EO–1), entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States.” As he signed it, President Trump read the title, looked up, and said “We all know what that means.” App. 124. That same day, President Trump explained to the media that, under EO–1, Christians would be given prior- ity for entry as refugees into the United States. In particu lar, he bemoaned the fact that in the past, “[i]f you were a Muslim [refugee from Syria] you could come in, but if you were a Christian, it was almost impossible.” Id., at 125. Considering that past policy “very unfair,” President Trump explained that EO–1 was designed “to help” the Christians in Syria. Ibid. The following day, one of Presi dent Trump’s key advisers candidly drew the connection between EO–1 and the “Muslim ban” that the President had pledged to implement if elected. Ibid. According to that adviser, “[W]hen [Donald Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’ ” Ibid. On February 3, 2017, the United States District Court for the Western District of Washington enjoined the en forcement of EO–1. See Washington v. Trump, 2017 WL 462040, *3. The Ninth Circuit denied the Government’s request to stay that injunction. Washington v. Trump, 847 F. 3d 1151, 1169 (2017) (per curiam). Rather than appeal the Ninth Circuit’s decision, the Government declined to continue defending EO–1 in court and instead announced that the President intended to issue a new executive order to replace EO–1. On March 6, 2017, President Trump issued that new executive order, which, like its predecessor, imposed tem porary entry and refugee bans. See Exec. Order No. 13,780, 82 Fed. Reg. 13209 (EO–2). One of the President’s senior advisers publicly explained that EO–2 would “have the same basic policy outcome” as EO–1, and that any
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SOTOMAYOR, J., dissenting changes would address “very technical issues that were brought up by the court.” App. 127. After EO–2 was issued, the White House Press Secretary told reporters that, by issuing EO–2, President Trump “continue[d] to deliver on . . . his most significant campaign promises.” Id., at 130. That statement was consistent with President Trump’s own declaration that “I keep my campaign prom ises, and our citizens will be very happy when they see the result.” Id., at 127–128. Before EO–2 took effect, federal District Courts in Ha waii and Maryland enjoined the order’s travel and refugee bans. See Hawaii v. Trump, 245 F. Supp. 3d 1227, 1239 (Haw. 2017); International Refugee Assistance Project (IRAP) v. Trump, 241 F. Supp. 3d 539, 566 (Md. 2017). The Fourth and Ninth Circuits upheld those injunctions in substantial part. IRAP v. Trump, 857 F. 3d 554, 606 (CA4 2017) (en banc); Hawaii v. Trump, 859 F. 3d 741, 789 (CA9 2017) (per curiam). In June 2017, this Court granted the Government’s petition for certiorari and issued a per curiam opinion partially staying the District Courts’ in junctions pending further review. In particular, the Court allowed EO–2’s travel ban to take effect except as to “for eign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” Trump v. IRAP, 582 U. S. ___, ___ (2017) (slip op., at 12). While litigation over EO–2 was ongoing, President Trump repeatedly made statements alluding to a desire to keep Muslims out of the country. For instance, he said at a rally of his supporters that EO–2 was just a “watered down version of the first one” and had been “tailor[ed]” at the behest of “the lawyers.” App. 131. He further added that he would prefer “to go back to the first [executive order] and go all the way” and reiterated his belief that it was “very hard” for Muslims to assimilate into Western culture. Id., at 131–132. During a rally in April 2017, President Trump recited the lyrics to a song called “The
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SOTOMAYOR, J., dissenting Snake,” a song about a woman who nurses a sick snake back to health but then is attacked by the snake, as a warning about Syrian refugees entering the country. Id., at 132, 163. And in June 2017, the President stated on Twitter that the Justice Department had submitted a “watered down, politically correct version” of the “original Travel Ban” “to S[upreme] C[ourt].”1 Id., at 132. The President went on to tweet: “People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” Id., at 132–133. He added: “That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politi cally correct term that won’t help us protect our people!” Id., at 133. Then, on August 17, 2017, President Trump issued yet another tweet about Islam, once more referenc ing the story about General Pershing’s massacre of Mus lims in the Philippines: “Study what General Pershing . . . did to terrorists when caught. There was no more Radical Islamic Terror for 35 years!” IRAP v. Trump, 883 F. 3d 233, 267 (CA4 2018) (IRAP II) (en banc) (alterations in original). In September 2017, President Trump tweeted that “[t]he travel ban into the United States should be far larger, tougher and more specific—but stupidly, that would not be politically correct!” App. 133. Later that month, on Sep tember 24, 2017, President Trump issued Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017) (Proc lamation), which restricts entry of certain nationals from six Muslim-majority countries. On November 29, 2017, President Trump “retweeted” three anti-Muslim videos, entitled “Muslim Destroys a Statue of Virgin Mary!”, “Islamist mob pushes teenage boy off roof and beats him to death!”, and “Muslim migrant beats up Dutch boy on
—————— 1 According to the White House, President Trump’s statements on Twitter are “official statements.” App. 133.
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SOTOMAYOR, J., dissenting
2 crutches!” IRAP II , 883 F. 3d, at 267. Those videos were initially tweeted by a British political party whose mission is to oppose “all alien and destructive politic[al] or reli gious doctrines, including . . . Islam.” Ibid. When asked about these videos, the White House Deputy Press Secre tary connected them to the Proclamation, responding that the “President has been talking about these security is sues for years now, from the campaign trail to the White House” and “has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.” Ibid. 2 As the majority correctly notes, “the issue before us is not whether to denounce” these offensive statements. Ante, at 29. Rather, the dispositive and narrow question here is whether a reasonable observer, presented with all “openly available data,” the text and “historical context” of the Proclamation, and the “specific sequence of events” leading to it, would conclude that the primary purpose of the Proclamation is to disfavor Islam and its adherents by excluding them from the country. See McCreary, 545 U. S., at 862–863. The answer is unquestionably yes. Taking all the relevant evidence together, a reasonable observer would conclude that the Proclamation was driven primarily by anti-Muslim animus, rather than by the —————— 2 The content of these videos is highly inflammatory, and their titles are arguably misleading. For instance, the person depicted in the video entitled “Muslim migrant beats up Dutch boy on crutches!” was report edly not a “migrant,” and his religion is not publicly known. See Brief for Plaintiffs in International Refugee Assistance Project v. Trump as Amici Curiae 12, n. 4; P. Baker & E. Sullivan, Trump Shares Inflam matory Anti-Muslim Videos, and Britain’s Leader Condemns Them, N. Y. Times, Nov. 29, 2017 (“[A]ccording to local officials, both boys are
Dutch”), https: // www.nytimes.com / 2017 / 11 / 29 / us / politics / trump anti-muslim-videos-jayda-fransen.html (all Internet materials as last visited June 25, 2018).
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SOTOMAYOR, J., dissenting Government’s asserted national-security justifications. Even before being sworn into office, then-candidate Trump stated that “Islam hates us,” App. 399, warned that “[w]e’re having problems with the Muslims, and we’re having problems with Muslims coming into the country,” id., at 121, promised to enact a “total and complete shut down of Muslims entering the United States,” id., at 119, and instructed one of his advisers to find a “lega[l ]” way to enact a Muslim ban, id., at 125.3 The President continued to make similar statements well after his inauguration, as detailed above, see supra, at 6–10. Moreover, despite several opportunities to do so, Presi dent Trump has never disavowed any of his prior state ments about Islam.4 Instead, he has continued to make
—————— 3 The Government urges us to disregard the President’s campaign statements. Brief for Petitioners 66–67. But nothing in our precedent supports that blinkered approach. To the contrary, courts must con sider “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540 (1993) (opinion of KENNEDY, J.). Moreover, President Trump and his advisers have repeatedly acknowledged that the Proclamation and its predecessors are an outgrowth of the President’s campaign statements. For exam ple, just last November, the Deputy White House Press Secretary reminded the media that the Proclamation addresses “issues” the President has been talking about “for years,” including on “the cam paign trail.” IRAP II, 883 F. 3d 233, 267 (CA4 2018). In any case, as the Fourth Circuit correctly recognized, even without relying on any of the President’s campaign statements, a reasonable observer would conclude that the Proclamation was enacted for the impermissible purpose of disfavoring Muslims. Id., at 266, 268. 4 At oral argument, the Solicitor General asserted that President Trump “made crystal-clear on September 25 that he had no intention of imposing the Muslim ban” and “has praised Islam as one of the great countries [sic] of the world.” Tr. of Oral Arg. 81. Because the record contained no evidence of any such statement made on September 25th, however, the Solicitor General clarified after oral argument that he actually intended to refer to President Trump’s statement during a
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SOTOMAYOR, J., dissenting remarks that a reasonable observer would view as an unrelenting attack on the Muslim religion and its follow ers. Given President Trump’s failure to correct the rea sonable perception of his apparent hostility toward the Islamic faith, it is unsurprising that the President’s law yers have, at every step in the lower courts, failed in their attempts to launder the Proclamation of its discriminatory taint. See United States v. Fordice, 505 U. S. 717, 746– 747 (1992) (“[G]iven an initially tainted policy, it is emi nently reasonable to make the [Government] bear the risk of nonpersuasion with respect to intent at some future time, both because the [Government] has created the dispute through its own prior unlawful conduct, and be cause discriminatory intent does tend to persist through time” (citation omitted)). Notably, the Court recently found less pervasive official expressions of hostility and the failure to disavow them to be constitutionally signifi cant. Cf. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 18) (“The official expressions of hostility to religion in some of the commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to the affirmance of the order—
—————— television interview on January 25, 2017. Letter from N. Francisco, Solicitor General, to S. Harris, Clerk of Court (May 1, 2018); Reply Brief 28, n. 8. During that interview, the President was asked whether EO–1 was “the Muslim ban,” and answered, “no it’s not the Muslim ban.” See Transcript: ABC News anchor David Muir interviews Presi dent Trump, ABC News, Jan. 25, 2017, http://abcnews.go.com/Politics/ transcript-abc-news-anchor-david-muir-interviews-president / story ? id = 45047602. But that lone assertion hardly qualifies as a disavowal of the President’s comments about Islam—some of which were spoken after January 25, 2017. Moreover, it strains credulity to say that President Trump’s January 25th statement makes “crystal-clear” that he never intended to impose a Muslim ban given that, until May 2017, the President’s website displayed the statement regarding his cam paign promise to ban Muslims from entering the country.
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SOTOMAYOR, J., dissenting were inconsistent with what the Free Exercise Clause requires”). It should find the same here. Ultimately, what began as a policy explicitly “calling for a total and complete shutdown of Muslims entering the United States” has since morphed into a “Proclamation” putatively based on national-security concerns. But this new window dressing cannot conceal an unassailable fact: the words of the President and his advisers create the strong perception that the Proclamation is contaminated by impermissible discriminatory animus against Islam and its followers. II Rather than defend the President’s problematic state ments, the Government urges this Court to set them aside and defer to the President on issues related to immigra tion and national security. The majority accepts that invitation and incorrectly applies a watered-down legal standard in an effort to short circuit plaintiffs’ Establish ment Clause claim. The majority begins its constitutional analysis by noting that this Court, at times, “has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly bur dens the constitutional rights of a U. S. citizen.” Ante, at 30 (citing Kleindienst v. Mandel, 408 U. S. 753 (1972)). As the majority notes, Mandel held that when the Executive Branch provides “a facially legitimate and bona fide rea son” for denying a visa, “courts will neither look behind the exercise of that discretion, nor test it by balancing its justification.” Id., at 770. In his controlling concurrence in Kerry v. Din, 576 U. S. ___ (2015), JUSTICE KENNEDY applied Mandel’s holding and elaborated that courts can
“ ‘look behind’ the Government’s exclusion of ” a foreign national if there is “an affirmative showing of bad faith on the part of the consular officer who denied [the] visa.” Din, 576 U. S., at ___ (opinion concurring in judgment)
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SOTOMAYOR, J., dissenting (slip op., at 5). The extent to which Mandel and Din apply at all to this case is unsettled, and there is good reason to think they do not.5 Indeed, even the Government agreed at oral argument that where the Court confronts a situa tion involving “all kinds of denigrating comments about” a particular religion and a subsequent policy that is de signed with the purpose of disfavoring that religion but that “dot[s] all the i’s and . . . cross[es] all the t’s,” Mandel would not “pu[t] an end to judicial review of that set of facts.” Tr. of Oral Arg. 16. In light of the Government’s suggestion “that it may be appropriate here for the inquiry to extend beyond the facial neutrality of the order,” the majority rightly declines —————— 5 Mandel and Din are readily distinguishable from this case for a number of reasons. First, Mandel and Din each involved a constitu tional challenge to an Executive Branch decision to exclude a single foreign national under a specific statutory ground of inadmissibility. Mandel, 408 U. S., at 767; Din, 576 U. S., at ___ (slip op., at 1). Here, by contrast, President Trump is not exercising his discretionary author ity to determine the admission or exclusion of a particular foreign national. He promulgated an executive order affecting millions of individuals on a categorical basis. Second, Mandel and Din did not purport to establish the framework for adjudicating cases (like this one) involving claims that the Executive Branch violated the Establishment Clause by acting pursuant to an unconstitutional purpose. Applying Mandel’s narrow standard of review to such a claim would run contrary to this Court’s repeated admonition that “[f ]acial neutrality is not determinative” in the Establishment Clause context. Lukumi, 508 U. S., at 534. Likewise, the majority’s passing invocation of Fiallo v. Bell, 430 U. S. 787 (1977), is misplaced. Fiallo, unlike this case, ad dressed a constitutional challenge to a statute enacted by Congress, not an order of the President. Id., at 791. Fiallo’s application of Mandel says little about whether Mandel’s narrow standard of review applies to the unilateral executive proclamation promulgated under the circum stances of this case. Finally, even assuming that Mandel and Din apply here, they would not preclude us from looking behind the face of the Proclamation because plaintiffs have made “an affirmative showing of bad faith,” Din, 576 U. S., at ___ (slip op., at 5), by the President who, among other things, instructed his subordinates to find a “lega[l]” way to enact a Muslim ban, App. 125; see supra, at 4–10.
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SOTOMAYOR, J., dissenting to apply Mandel’s “narrow standard of review” and “as sume[s] that we may look behind the face of the Proclama tion.” Ante, at 31–32. In doing so, however, the Court, without explanation or precedential support, limits its review of the Proclamation to rational-basis scrutiny. Ibid. That approach is perplexing, given that in other Establishment Clause cases, including those involving claims of religious animus or discrimination, this Court has applied a more stringent standard of review. See, e.g., McCreary, 545 U. S., at 860–863; Larson, 456 U. S., at 246; Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440, 449– 452 (1969); see also Colorado Christian Univ. v. Weaver, 534 F. 3d 1245, 1266 (CA10 2008) (McConnell, J.) (noting that, under Supreme Court precedent, laws “involving discrimination on the basis of religion, including interde nominational discrimination, are subject to heightened scrutiny whether they arise under the Free Exercise Clause, the Establishment Clause, or the Equal Protection Clause” (citations omitted)).6 As explained above, the —————— 6 The majority chides as “problematic” the importation of Establish ment Clause jurisprudence “in the national security and foreign affairs context.” Ante, at 32–33, n. 5. As the majority sees it, this Court’s Establishment Clause precedents do not apply to cases involving “immigration policies, diplomatic sanctions, and military actions.” Ante, at 32, n. 5. But just because the Court has not confronted the precise situation at hand does not render these cases (or the principles they announced) inapplicable. Moreover, the majority’s complaint regarding the lack of direct authority is a puzzling charge, given that the majority itself fails to cite any “authority for its proposition” that a more probing review is inappropriate in a case like this one, where United States citizens allege that the Executive has violated the Establishment Clause by issuing a sweeping executive order motivated by animus. Ante, at 33 n. 5; see supra, at 14, and n. 5. In any event, even if there is no prior case directly on point, it is clear from our precedent that “[w]hatever power the United States Constitution envisions for the Executive” in the context of national security and foreign affairs, “it most assuredly envisions a role for all three branches
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SOTOMAYOR, J., dissenting Proclamation is plainly unconstitutional under that heightened standard. See supra, at 10–13. But even under rational-basis review, the Proclamation must fall. That is so because the Proclamation is “ ‘di vorced from any factual context from which we could discern a relationship to legitimate state interests,’ and ‘its sheer breadth [is] so discontinuous with the reasons offered for it’ ” that the policy is “‘inexplicable by anything but animus.’ ” Ante, at 33 (quoting Romer v. Evans, 517 U. S. 620, 632, 635 (1996)); see also Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 448 (1985) (recognizing that classifications predicated on discriminatory animus can never be legitimate because the Government has no legitimate interest in exploiting “mere negative attitudes, or fear” toward a disfavored group). The President’s statements, which the majority utterly fails to address in its legal analysis, strongly support the conclusion that the Proclamation was issued to express hostility toward Mus lims and exclude them from the country. Given the over whelming record evidence of anti-Muslim animus, it sim ply cannot be said that the Proclamation has a legitimate basis. IRAP II, 883 F. 3d, at 352 (Harris, J., concurring) (explaining that the Proclamation contravenes the bedrock principle “that the government may not act on the basis of
—————— when individual liberties are at stake.” Hamdi v. Rumsfeld, 542 U. S. 507, 536 (2004) (plurality opinion). This Court’s Establishment Clause precedents require that, if a reasonable observer would understand an executive action to be driven by discriminatory animus, the action be invalidated. See McCreary, 545 U. S., at 860. That reasonable- observer inquiry includes consideration of the Government’s asserted justifications for its actions. The Government’s invocation of a national- security justification, however, does not mean that the Court should close its eyes to other relevant information. Deference is different from unquestioning acceptance. Thus, what is “far more problematic” in this case is the majority’s apparent willingness to throw the Establishment Clause out the window and forgo any meaningful constitutional review at the mere mention of a national-security concern. Ante, at 32, n. 5.
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SOTOMAYOR, J., dissenting animus toward a disfavored religious minority” (emphasis in original)). The majority insists that the Proclamation furthers two interrelated national-security interests: “preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.” Ante, at 34. But the Court offers insufficient support for its view “that the entry suspension has a legitimate grounding in [those] national security concerns, quite apart from any religious hostility.” Ibid.; see also ante, at 33–38, and n. 7. In deed, even a cursory review of the Government’s asserted national-security rationale reveals that the Proclamation is nothing more than a “ ‘religious gerrymander.’ ” Lukumi, 508 U. S., at 535. The majority first emphasizes that the Proclamation “says nothing about religion.” Ante, at 34. Even so, the Proclamation, just like its predecessors, overwhelmingly targets Muslim-majority nations. Given the record here, including all the President’s statements linking the Proc lamation to his apparent hostility toward Muslims, it is of no moment that the Proclamation also includes minor restrictions on two non-Muslim majority countries, North Korea and Venezuela, or that the Government has re moved a few Muslim-majority countries from the list of covered countries since EO–1 was issued. Consideration of the entire record supports the conclusion that the inclu sion of North Korea and Venezuela, and the removal of other countries, simply reflect subtle efforts to start “talk ing territory instead of Muslim,” App. 123, precisely so the Executive Branch could evade criticism or legal conse quences for the Proclamation’s otherwise clear targeting of Muslims. The Proclamation’s effect on North Korea and Venezuela, for example, is insubstantial, if not entirely symbolic. A prior sanctions order already restricts entry of North Korean nationals, see Exec. Order No. 13810, 82 Fed. Reg. 44705 (2017), and the Proclamation targets only
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SOTOMAYOR, J., dissenting a handful of Venezuelan government officials and their immediate family members, 82 Fed. Reg. 45166. As such, the President’s inclusion of North Korea and Venezuela does little to mitigate the anti-Muslim animus that per meates the Proclamation. The majority next contends that the Proclamation “re flects the results of a worldwide review process under- taken by multiple Cabinet officials.” Ante, at 34. At the out set, there is some evidence that at least one of the individuals involved in that process may have exhibited bias against Muslims. As noted by one group of amici, the Trump administration appointed Frank Wuco to help enforce the President’s travel bans and lead the multi- agency review process. See Brief for Plaintiffs in Interna tional Refugee Assistance Project v. Trump as Amici Cu riae 13–14, and n. 10. According to amici, Wuco has purportedly made several suspect public statements about Islam: He has “publicly declared that it was a ‘great idea’ to ‘stop the visa application process into this country from
Muslim nations in a blanket type of policy,’ ” “that Muslim populations ‘living under other-than-Muslim rule’ will ‘necessarily’ turn to violence, that Islam prescribes ‘vio lence and warfare against unbelievers,’ and that Muslims
‘by-and-large . . . resist assimilation.’ ” Id., at 14. But, even setting aside those comments, the worldwide review does little to break the clear connection between the Proclamation and the President’s anti-Muslim state ments. For “[n]o matter how many officials affix their names to it, the Proclamation rests on a rotten founda tion.” Brief for Constitutional Law Scholars as Amici Curiae 7 (filed Apr. 2, 2018); see supra, at 4–10. The President campaigned on a promise to implement a “total and complete shutdown of Muslims” entering the country, translated that campaign promise into a concrete policy, and made several statements linking that policy (in its various forms) to anti-Muslim animus.
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SOTOMAYOR, J., dissenting Ignoring all this, the majority empowers the President to hide behind an administrative review process that the Government refuses to disclose to the public. See IRAP II, 883 F. 3d, at 268 (“[T]he Government chose not to make the review publicly available” even in redacted form); IRAP v. Trump, No. 17–2231 (CA4), Doc. 126 (Letter from S. Swingle, Counsel for Defendants-Appellants, to P. Connor, Clerk of the United States Court of Appeals for the Fourth Circuit (Nov. 24, 2017)) (resisting Fourth Circuit’s request that the Government supplement the record with the reports referenced in the Proclamation). Furthermore, evidence of which we can take judicial notice indicates that the multiagency review process could not have been very thorough. Ongoing litigation under the Freedom of Information Act shows that the September 2017 report the Government produced after its review process was a mere 17 pages. See Brennan Center for Justice v. United States Dept. of State, No. 17–cv–7520 (SDNY), Doc. No. 31–1, pp. 2–3. That the Government’s analysis of the vetting practices of hundreds of countries boiled down to such a short document raises serious ques tions about the legitimacy of the President’s proclaimed national-security rationale. Beyond that, Congress has already addressed the national-security concerns supposedly undergirding the Proclamation through an “extensive and complex” frame work governing “immigration and alien status.” Arizona v. United States, 567 U. S. 387, 395 (2012).7 The Immigra
—————— 7 It is important to note, particularly given the nature of this case, that many consider “using the term ‘alien’ to refer to other human beings” to be “offensive and demeaning.” Flores v. United States Citizenship & Immigration Servs., 718 F. 3d 548, 551–552, n. 1 (CA6 2013). I use the term here only where necessary “to be consistent with the statutory language” that Congress has chosen and “to avoid any confusion in replacing a legal term of art with a more appropriate term.” Ibid.
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SOTOMAYOR, J., dissenting tion and Nationality Act sets forth, in painstaking detail, a reticulated scheme regulating the admission of individuals to the United States. Generally, admission to the United States requires a valid visa or other travel document. 8 U. S. C. §§1181, 1182(a)(7)(A)(i)(I), 1182(a)(7)(B)(i)(II). To obtain a visa, an applicant must produce “certified cop[ies]” of documents proving her identity, background, and criminal history. §§1202(b), 1202(d). An applicant also must undergo an in-person interview with a State Department consular officer. §§1201(a)(1), 1202(h)(1), 22 CFR §§42.62(a)–(b) (2017); see also 8 U. S. C. §§1202(h)(2)(D), 1202(h)(2)(F) (requiring in-person inter view if the individual “is a national of a country officially designated by the Secretary of State as a state sponsor of terrorism” or is “a member of a group or section that . . . poses a security threat to the United States”). “Any alien who . . . has engaged in a terrorist activity,” “incited ter rorist activity,” or been a representative, member, or endorser of a terrorist organization, or who “is likely to engage after entry in any terrorist activity,” §1182(a)(3)(B), or who has committed one or more of the many crimes enumerated in the statute is inadmissible and therefore ineligible to receive a visa. See §1182(a)(2)(A) (crime of moral turpitude or drug offense); §1182(a)(2)(C) (drug trafficking or benefiting from a rela tive who recently trafficked drugs); §1182(a)(2)(D) (prosti tution or “unlawful commercialized vice”); §1182(a)(2)(H) (human trafficking); §1182(a)(3) (“Security and related grounds”). In addition to vetting rigorously any individuals seeking admission to the United States, the Government also rigorously vets the information-sharing and identity- management systems of other countries, as evidenced by the Visa Waiver Program, which permits certain nationals from a select group of countries to skip the ordinary visa- application process. See §1187. To determine which
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SOTOMAYOR, J., dissenting countries are eligible for the Visa Waiver Program, the Government considers whether they can satisfy numerous criteria—e.g., using electronic, fraud-resistant passports, §1187(a)(3)(B), 24-hour reporting of lost or stolen pass ports, §1187(c)(2)(D), and not providing a safe haven for terrorists, §1187(a)(12)(D)(iii). The Secretary of Homeland Security, in consultation with the Secretary of State, also must determine that a country’s inclusion in the program will not compromise “the law enforcement and security interests of the United States.” §1187(c)(2)(C). Eligibility for the program is reassessed on an annual basis. See §1187(a)(12)(D)(iii), 1187(c)(12)(A). As a result of a recent review, for example, the Executive decided in 2016 to remove from the program dual nationals of Iraq, Syria, Iran, and Sudan. See Brief for Former National Security Officials as Amici Curiae 27. Put simply, Congress has already erected a statutory scheme that fulfills the putative national-security inter ests the Government now puts forth to justify the Procla mation. Tellingly, the Government remains wholly unable to articulate any credible national-security interest that would go unaddressed by the current statutory scheme absent the Proclamation. The Government also offers no evidence that this current vetting scheme, which involves a highly searching consideration of individuals required to obtain visas for entry into the United States and a highly searching consideration of which countries are eligible for inclusion in the Visa Waiver Program, is inadequate to achieve the Proclamation’s proclaimed objectives of “pre venting entry of nationals who cannot be adequately vetted and inducing other nations to improve their [vet ting and information-sharing] practices.” Ante, at 34. For many of these reasons, several former national- security officials from both political parties—including former Secretary of State Madeleine Albright, former State Department Legal Adviser John Bellinger III, for
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SOTOMAYOR, J., dissenting mer Central Intelligence Agency Director John Brennan, and former Director of National Intelligence James Clap- per—have advised that the Proclamation and its predeces sor orders “do not advance the national-security or foreign policy interests of the United States, and in fact do serious harm to those interests.” Brief for Former National Secu rity Officials as Amici Curiae 15 (boldface deleted). Moreover, the Proclamation purports to mitigate national-security risks by excluding nationals of countries that provide insufficient information to vet their nationals. 82 Fed. Reg. 45164. Yet, as plaintiffs explain, the Procla mation broadly denies immigrant visas to all nationals of those countries, including those whose admission would likely not implicate these information deficiencies (e.g., infants, or nationals of countries included in the Procla mation who are long-term residents of and traveling from a country not covered by the Proclamation). See Brief for Respondents 72. In addition, the Proclamation permits certain nationals from the countries named in the Procla mation to obtain nonimmigrant visas, which undermines the Government’s assertion that it does not already have the capacity and sufficient information to vet these indi viduals adequately. See 82 Fed. Reg. 45165–45169. Equally unavailing is the majority’s reliance on the Proclamation’s waiver program. Ante, at 37, and n. 7. As several amici thoroughly explain, there is reason to sus pect that the Proclamation’s waiver program is nothing more than a sham. See Brief for Pars Equality Center et al. as Amici Curiae 11, 13–28 (explaining that “waivers under the Proclamation are vanishingly rare” and report ing numerous stories of deserving applicants denied waiv ers). The remote possibility of obtaining a waiver pursu ant to an ad hoc, discretionary, and seemingly arbitrary process scarcely demonstrates that the Proclamation is rooted in a genuine concern for national security. See ante, at 3–8 (BREYER, J., dissenting) (outlining evidence
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SOTOMAYOR, J., dissenting suggesting “that the Government is not applying the Proclamation as written,” that “waivers are not being processed in an ordinary way,” and that consular and other officials “do not, in fact, have discretion to grant waivers”). In sum, none of the features of the Proclamation high lighted by the majority supports the Government’s claim that the Proclamation is genuinely and primarily rooted in a legitimate national-security interest. What the unrebut ted evidence actually shows is that a reasonable observer would conclude, quite easily, that the primary purpose and function of the Proclamation is to disfavor Islam by ban ning Muslims from entering our country. III As the foregoing analysis makes clear, plaintiffs are likely to succeed on the merits of their Establishment Clause claim. To obtain a preliminary injunction, how- ever, plaintiffs must also show that they are “likely to suffer irreparable harm in the absence of preliminary relief,” that “the balance of equities tips in [their] favor,” and that “an injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20 (2008). Plaintiffs readily clear those remaining hurdles. First, plaintiffs have shown a likelihood of irreparable harm in the absence of an injunction. As the District Court found, plaintiffs have adduced substantial evidence showing that the Proclamation will result in “a multitude of harms that are not compensable with monetary dam ages and that are irreparable—among them, prolonged separation from family members, constraints to recruiting and retaining students and faculty members to foster diversity and quality within the University community, and the diminished membership of the [Muslim] Associa tion.” 265 F. Supp. 3d 1140, 1159 (Haw. 2017). Second, plaintiffs have demonstrated that the balance of
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SOTOMAYOR, J., dissenting the equities tips in their favor. Against plaintiffs’ concrete allegations of serious harm, the Government advances only nebulous national-security concerns. Although na tional security is unquestionably an issue of paramount public importance, it is not “a talisman” that the Govern ment can use “to ward off inconvenient claims—a ‘label’ used to ‘cover a multitude of sins.’ ” Ziglar v. Abbasi, 582 U. S. ___, ___ (2017) (slip op., at 20). That is especially true here, because, as noted, the Government’s other statutory tools, including the existing rigorous individual ized vetting process, already address the Proclamation’s purported national-security concerns. See supra, at 19– 22. Finally, plaintiffs and their amici have convincingly established that “an injunction is in the public interest.” Winter, 555 U. S., at 20. As explained by the scores of amici who have filed briefs in support of plaintiffs, the Proclamation has deleterious effects on our higher educa tion system;8 national security;9 healthcare;10 artistic culture;11 and the Nation’s technology industry and overall economy.12 Accordingly, the Court of Appeals correctly affirmed, in part, the District Court’s preliminary injunction.13
—————— 8 See Brief for American Council on Education et al. as Amici Curiae; Brief for Colleges and Universities as Amici Curiae; Brief for New York University as Amicus Curiae. 9 See Brief for Retired Generals and Admirals of the U. S. Armed Forces as Amici Curiae; Brief for Former National Security Officials as Amici Curiae. 10 See Brief for Association of American Medical Colleges as Amicus Curiae. 11 See Brief for Association of Art Museum Directors et al. as Amici Curiae. 12 See Brief for U. S. Companies as Amici Curiae; Brief for Massachu setts Technology Leadership Council, Inc., as Amicus Curiae. 13 Because the majority concludes that plaintiffs have failed to show a likelihood of success on the merits, it takes no position on “the propriety
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SOTOMAYOR, J., dissenting IV The First Amendment stands as a bulwark against official religious prejudice and embodies our Nation’s deep commitment to religious plurality and tolerance. That constitutional promise is why, “[f ]or centuries now, people have come to this country from every corner of the world to share in the blessing of religious freedom.” Town of Greece v. Galloway, 572 U. S., at ___ (KAGAN, J., dissent ing) (slip op., at 1). Instead of vindicating those principles, today’s decision tosses them aside. In holding that the First Amendment gives way to an executive policy that a reasonable observer would view as motivated by animus against Muslims, the majority opinion upends this Court’s precedent, repeats tragic mistakes of the past, and denies countless individuals the fundamental right of religious liberty. Just weeks ago, the Court rendered its decision in Mas terpiece Cakeshop, 584 U. S. ___, which applied the bed rock principles of religious neutrality and tolerance in considering a First Amendment challenge to government action. See id., at ___ (slip op., at 17) (“The Constitution ‘commits government itself to religious tolerance, and upon even slight suspicion that proposals for state inter vention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures’ ” (quoting Lukumi, 508 U. S., at 547)); Masterpiece, 584
—————— of the nationwide scope of the injunction issued by the District Court.” Ante, at 39. The District Court did not abuse its discretion by granting nationwide relief. Given the nature of the Establishment Clause violation and the unique circumstances of this case, the imposition of a nationwide injunction was “ ‘necessary to provide complete relief to the plaintiffs.’ ” Madsen v. Women’s Health Center, Inc., 512 U. S. 753, 765 (1994); see Califano v. Yamasaki, 442 U. S. 682, 702 (1979) (“[T]he scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class”).
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U. S., at ___ (KAGAN, J., concurring) (slip op., at 1) (“[S]tate actors cannot show hostility to religious views; rather, they must give those views ‘neutral and respectful consideration’ ”). Those principles should apply equally here. In both instances, the question is whether a gov ernment actor exhibited tolerance and neutrality in reach ing a decision that affects individuals’ fundamental reli gious freedom. But unlike in Masterpiece, where a state civil rights commission was found to have acted without “the neutrality that the Free Exercise Clause requires,” id., at ___ (slip op., at 17), the government actors in this case will not be held accountable for breaching the First Amendment’s guarantee of religious neutrality and toler ance. Unlike in Masterpiece, where the majority consid ered the state commissioners’ statements about religion to be persuasive evidence of unconstitutional government action, id., at ___–___ (slip op., at 12–14), the majority here completely sets aside the President’s charged state ments about Muslims as irrelevant. That holding erodes the foundational principles of religious tolerance that the Court elsewhere has so emphatically protected, and it tells members of minority religions in our country “ ‘that they are outsiders, not full members of the political commu nity.’ ” Santa Fe, 530 U. S., at 309. Today’s holding is all the more troubling given the stark parallels between the reasoning of this case and that of Korematsu v. United States, 323 U. S. 214 (1944). See Brief for Japanese American Citizens League as Amicus Curiae. In Korematsu, the Court gave “a pass [to] an odious, gravely injurious racial classification” authorized by an executive order. Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 275 (1995) (GINSBURG, J., dissenting). As here, the Government invoked an ill-defined national- security threat to justify an exclusionary policy of sweep ing proportion. See Brief for Japanese American Citizens League as Amicus Curiae 12–14. As here, the exclusion
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SOTOMAYOR, J., dissenting order was rooted in dangerous stereotypes about, inter alia, a particular group’s supposed inability to assimilate and desire to harm the United States. See Korematsu, 323 U. S., at 236–240 (Murphy, J., dissenting). As here, the Government was unwilling to reveal its own intelligence agencies’ views of the alleged security concerns to the very citizens it purported to protect. Compare Korematsu v. United States, 584 F. Supp. 1406, 1418–1419 (ND Cal. 1984) (discussing information the Government knowingly omitted from report presented to the courts justifying the executive order); Brief for Japanese American Citizens League as Amicus Curiae 17–19, with IRAP II, 883 F. 3d, at 268; Brief for Karen Korematsu et al. as Amici Curiae 35–36, and n. 5 (noting that the Government “has gone to great lengths to shield [the Secretary of Homeland Securi ty’s] report from view”). And as here, there was strong evidence that impermissible hostility and animus moti- vated the Government’s policy. Although a majority of the Court in Korematsu was willing to uphold the Government’s actions based on a barren invocation of national security, dissenting Justices warned of that decision’s harm to our constitutional fabric. Justice Murphy recognized that there is a need for great deference to the Executive Branch in the context of na tional security, but cautioned that “it is essential that there be definite limits to [the government’s] discretion,” as “[i]ndividuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.” 323 U. S., at 234 (Murphy, J., dissenting). Justice Jackson lamented that the Court’s decision upholding the Government’s policy would prove to be “a far more subtle blow to liberty than the promulgation of the order itself,” for although the executive order was not likely to be long lasting, the Court’s willingness to tolerate it would endure. Id., at 245–246.
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SOTOMAYOR, J., dissenting In the intervening years since Korematsu, our Nation has done much to leave its sordid legacy behind. See, e.g., Civil Liberties Act of 1988, 50 U. S. C. App. §4211 et seq. (setting forth remedies to individuals affected by the executive order at issue in Korematsu); Non-Detention Act of 1971, 18 U. S. C. §4001(a) (forbidding the imprisonment or detention by the United States of any citizen absent an Act of Congress). Today, the Court takes the important step of finally overruling Korematsu, denouncing it as “gravely wrong the day it was decided.” Ante, at 38 (citing Korematsu, 323 U. S., at 248 (Jackson, J., dissenting)). This formal repudiation of a shameful precedent is laud able and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting the Government’s misguided invitation to sanction a discrimi natory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision with another. Ante, at 38. Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to ac count when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent.