US Government Debt Different - Finance Department - University of ...

Charles W. Mooney, JrBut, of course, absent immunity from execution, a court could reachassets without infringing on that exclusive power over the purse. Thiscompels the conclusion that absolute sovereign immunity from executionis U.S. law with respect to assets of the U.S. government.223The U.S. codified restricted immunity in the federal Foreign SovereignImmunities Act (FSIA) in 1976, and since that time issuesof immunity of foreign sovereign states from execution, as well asadjudication, has been governed by that act. 152 Even prior to enactmentof the FSIA, U.S. policy and case law had embraced restrictedimmunity for foreign states. 153 The principal relevant exception fromindefinite appropriation” currently in effect. See note 17, supra. On Glidden and relatedissues, see Vicki Jackson, Suing the Federal Government: Sovereignty, Immunity,and Judicial Independence, 35 Geo. Wash. Int’l L. Rev. 521, 594-605 (2003).152 See 28 U.S.C. §§ 1330, 1332, 1391(f), 1441(d), 1602-11 (2012) (encompassingthe various sections of the Act). Although the title of the act refers to “ForeignSovereign Immunity,” it is common to refer to “sovereign” immunity as immunity ofa government from suit (or execution) in its own courts. Immunity of foreign statesin another state’s forum is usually referred to as “state” immunity. For convenience,this discussion refers to “sovereign” immunity in both contexts.153 In 1952, the Acting Legal Adviser to the U.S. Department of State, Jack B.Tate, notified the Department of Justice of a shift in U.S. policy from support forabsolute sovereign immunity to the restrictive theory of sovereign immunity, whichwould recognize immunity of foreign States for their public and governmental, butnot their commercial, activities. Letter from Jack B. Tate, Acting Legal Adviser ofthe U.S. Dep’t of State, to Acting Attorney General Phillip B. Perlman (May 19,1952), reprinted in, 26 Dep’t St. Bull. 984 (1952). This letter is commonly referredto as the Tate Letter. For a brief discussion of the historical importance of the TateLetter, see Ruth Donner, The Tate Letter Revisited, 9 Willamette J. Int’l L. & Disp.Resol. 27, 27-30 (2001).After its release, courts frequently referenced the Tate Letter in cases concerning sovereignimmunity. See Nat’l City Bank of N.Y. v. Republic of China, 348 U.S. 356, 360(1955) (citing the Tate Letter, the Supreme Court noted that “[a]s the responsibleagency for the conduct of foreign affairs, the State Department is the normal meansof suggesting to the courts that a sovereign be granted immunity from a particularsuit. . . . Recently the State Department has pronounced broadly against recognizingsovereign immunity for the commercial operations of a foreign government . . .”).See also Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 706 (1976)(referencing the Tate Letter, “We decline to extend the act of state doctrine to actscommitted by foreign sovereigns in the course of their purely commercial operations.”);N.E. Shipping Corp. v. Gov’t of Pak., 1975 A.M.C. 2005, 2007 (S.D.N.Y.1975) (dismissing the issue of sovereign immunity in cases involving commercialactions of a State by recognizing the Department of State’s application of the restrictivetheory of sovereign immunity as announced in the Tate Letter); Amkor Corp. v.