Throwback Thursday: The Tate Letter and Foreign Sovereign Immunity

Seventy years ago this week, Department of State Legal Adviser Jack Tate wrote to Attorney General Philip Perlman to announce a sea change in State’s litigation practice vis-à-vis foreign sovereign immunity. The so-called “Tate Letter” informed the Department of Justice that State would shift from the “classical” approach to sovereign immunity to what’s known as the “restrictive” approach. As Tate explained, the classical approach permits suits against a foreign sovereign in domestic courts only if the sovereign has consented to the suit. The restrictive approach, in contrast, distinguishes between actions a foreign sovereign takes pursuant to its sovereign authority (acta jure imperii) and acts of a commercial, or private, nature (acta jure gestionis). The restrictive approach affords jurisdictional immunity to sovereigns from suits arising out of acts in the first category but withholds it in suits arising from acts that fall into the second. Today, the Tate Letter is little more than a piece of legal history, but nevertheless illuminates the separation of powers in foreign relations cases in ways that continue to resonate.

The Tate Letter surveyed the then-existing landscape of international law and judicial decisions from domestic courts across the world, from Chile to China. It cited growing support among foreign judges and scholars as a primary justification to accede to a growing trend, under which foreign sovereigns’ immunity from suit–traditionally more or less absolute–had been eroded. The Letter also noted the importance of ensuring a sort of reciprocity between the treatment the United States subjected itself to in foreign courts and the treatment foreign sovereigns conventionally received in U.S. courts. Specifically, because the United States followed a “long established policy” of forswearing immunity for its commercial vessels, Tate believed the U.S. government should refrain from suggesting that similarly situated foreign vessels receive immunity in its own courts.

The Tate Letter highlights two themes central to transnational litigation: the separation of powers in cases implicating foreign relations and the role of international law in U.S. courts. Both themes featured prominently in Schooner Exchange v. McFaddon, the leading foreign sovereign immunity case from the United States’ early history. In that case, Chief Justice Marshall applied international principles of sovereign immunity to bar a suit against a French warship in port in the United States. Whether the Court in Schooner Exchange afforded foreign sovereign immunity because it was relying on customary international law or, as Professor William Dodge argues, because it was engaging in international comity, is debated. In any event, Schooner Exchange shows a system under which the judiciary, not its two peer branches, stood as the final arbiter of foreign sovereign immunity in cases implicating the doctrine.

Over the following century, the courts would step back from an independent analysis of international principles in favor of deference to the executive branch’s “suggestions of immunity.” The judiciary’s abnegation in the foreign sovereign immunity context reached a high-water mark in the 1945 case of Republic of Mexico v. Hoffman, in which Chief Justice Stone remarked, “[i]t is therefore not for the courts to deny an immunity which our government has seen fit to allow, or to allow an immunity on new grounds which the government has not seen fit to recognize.” Notably, the Court just 19 years before had disregarded the State Department’s suggestion that sovereign immunity should not be applied in a suit against a steamship owned by the Italian government in Berizzi Bros. Co. v. The Pesaro.

Even when the courts’ independent assessment of international law gave way to executive predominance on the question of foreign sovereign immunity, international law continued to guide the hand of the State Department. In remarks he gave to the New York City Bar Association the year his Letter took effect (reproduced in this article by Professor Robert Jarvis), Tate emphasized that State’s policy change resulted from a thorough effort by his office’s lawyers to divine the content of international law on foreign sovereign immunity. While Tate’s staff could not identify a binding rule of international law as to the classical or restrictive approach, he nevertheless appears to have considered seriously the role of international law in formulating U.S. policy. Tate’s consideration of international law will come as no surprise to lawyers practicing in this area–particularly executive branch lawyers–but it’s worth mentioning here because international law generally lacks visibility in the U.S. legal system.

Executive determinations of foreign sovereign immunity under the Tate Letter regime were problematic in several regards. As Professor Ingrid Wuerth describes, the State Department filed suggestions of immunity that were inconsistent (with one another and with overall department policy) and that were occasionally the result of diplomatic pressure exerted by foreign sovereigns to obtain a favorable suggestion of immunity. The courts showed uncertainty about how to decide immunity in the cases where the executive branch did not file a suggestion of immunity. Finally, there were concerns about the State Department’s process for deciding whether to file a suggestion of immunity, a process that did not automatically provide for the foreign sovereign’s input or for a right of appeal.

In 1976, Congress (with the support of the State Department) passed the Foreign Sovereign Immunities Act (FSIA) to rectify the unpredictable, politically tinged executive immunity determination system.  The FSIA reconfigures the separation of powers in the area of foreign sovereign immunity by substituting the judiciary for the executive as the decider of immunity in a particular case. Furthermore, the FSIA substitutes statutory analysis for a freestanding inquiry into international law. Of note, the executive branch still plays a large role in the immunity space, especially in determinations of foreign official immunity under federal common law. And international law continues to play a role in foreign sovereign immunity through its influence on courts’ interpretation of the FSIA.

The FSIA adopts the Tate Letter’s embrace of the restrictive approach to foreign sovereign immunity. For its part, Congress has moved beyond abrogating foreign sovereign immunity for suits involving acta jure gestionis (codified as the “commercial exception” at 28 U.S.C. § 1605(a)(2)) and has enacted further exceptions, like a carveout for suits stemming from acts of international terrorism (arguably in violation of international law, and politically contentious in any event). Further roiling the international political waters, some members of Congress have introduced legislation that would abrogate foreign sovereign immunity for lawsuits related to the origin of the COVID-19 pandemic.

While foreign sovereign immunity remains a relevant and thorny topic in transnational litigation, the FSIA’s passage makes the Tate Letter little more than a relic in the doctrine’s historical development in U.S. law. Still, one detail of the Letter struck me as I recently reread it: a remarkable nugget given the state of the separation of powers in foreign relations law today. Near the close of the short, two-page document, Tate writes “[i]t is realized that a shift in policy by the executive cannot control the courts.” Note that this stance came almost ten years after the Court’s decision in Hoffman, where the Court held unequivocally that the judicial branch would follow executive suggestions of foreign sovereign immunity. In other words, Tate showed caution and interbranch comity even in the face of a sweeping statement favoring executive authority. Tate may have meant only that the policy his Letter announced would bind the executive branch and that the State Department’s adoption of the restrictive theory of immunity would not be legally binding on the judiciary as a wholesale matter. Nevertheless, the executive branch has not always restrained itselffrom articulating sweeping arguments on the basis of isolated excerpts from judicial opinions. That Tate did show such restraint is remarkable.

The Tate Letter is an illustrative piece of history in foreign relations and separation of powers, one that suggests an alternative to our status quo. After an initial era of judicial independence in determining foreign sovereign immunity, courts came to rely on the executive to suggest immunity in particular cases. When the executive’s system for doing so proved unworkable, Congress codified the executive’s position in a way that reduced diplomatic pressure on the State Department and advanced the goals of transparency and impartial adjudication. We live in an era of wide-ranging (if incomplete) executive predominance over the legislature and judiciary in the area of foreign relations. Look no further than a 2020 opinion from the Office of Legal Counsel disclaiming any congressional ability to regulate the president’s withdrawal from the Open Skies Treaty. The executive’s position may be legally sound, or it may merely be expedient. The Tate Letter reminds us that executive unilateralism is not an immutable condition of our system, and it allows us to imagine a future where each branch respects the prerogatives of its peers as much as its own.