Home » Articles » Head of State Immunity as Sole Executive Lawmaking
Head of State Immunity as Sole Executive Lawmaking
PDF · Lewis S. Yelin ·
Jun-25-2012 ·
44 VAND. J. TRANSNAT'L L. 917 (2011)
At the request of the Executive Branch, courts routinely dismiss private suits against sitting heads of foreign states. Congress has never delegated authority to the Executive Branch to identify principles governing head of state immunity. The courts’ practice thus appears inconsistent with the conventional view that the Executive Branch lacks authority to affect private rights unless authorized by Congress to do so. This Article argues that the Executive Branch’s practice of determining head of state immunity is an example of sole executive lawmaking, deriving from the President’s constitutional responsibility as the only authorized representative of the United States in its relations with foreign states. The President accordingly has some inherent, though limited, lawmaking authority under Article II of the Constitution. The Article supports this doctrinal argument by examining the separation-of-powers concerns underlying the courts’ historic deference to executive branch determinations of foreign state immunity, prior to the codification of that subject in 1976. It considers objections that the Executive Branch’s authority to determine head of state immunity is more plausibly grounded in the Reception Clause than in the President’s more general power to conduct the nation’s diplomacy, and that head of state immunity determinations are not really lawmaking. The Article concludes by considering the respective roles of Congress and the courts in determining and applying principles of head of state immunity.
This entry was posted
on Monday, June 25, 2012 at 6:11 pm and is filed under Articles, Vol. 44 No. 4, Volume 44, Volumes.
You can follow any responses to this entry through the RSS 2.0 feed.
You can leave a response, or trackback from your own site.
Announcements
The Vanderbilt Journal of Transnational Law hosted a symposium called “The Role of Non-State Actors in International Law” at Vanderbilt University Law School in February 2013. The October issue of the Journal will showcase articles by distinguished symposium guests including:
Mr. Ian Smillie, “Blood Diamonds and Non-State Actors”
Professor Jean d’Aspremont, “Cognitive Conflicts and the Making of International Law from Empirical Concord to Conceptual Discord in Legal Scholarship”
Professor Peter J. Spiro, “Constraining Global Corporate Power: A Very Short Introduction”
Professor Suzanne Katzenstein
Professor Peter Margulies
Professor Harlan G. Cohen
We are pleased to announce our annual award recipients for 2012-2013.
Masamichi Yamamoto Second-Year Editor Award: Kennedy Meier
Outstanding Third Year Editor Award: Alex Rinn
Grace Wilson Sims Medal in Transnational Law: Molly Chen
Grace Wilson Sims Prize for Student Writing in Transnational Law: Margaret Artz
Note Selections for 2013-14
The Publication Committee is pleased to announce the 2L student Notes selected for publication in the 2013-14 issues. Please follow this link: Note Selections for 2013
A special congratulations to Stella Forcehimes, who successfully “Noted-on” to the Vanderbilt Journal of Transnational Law. Please congratulate her if you see her around school.
The Vanderbilt Journal of Transnational Law is now ranked the 9th best international law journal according to the Washington & Lee School of Law Library Law Journal Rankings. For more information, please visit: Washington & Lee Journal Rankings
The Vanderbilt Journal of Transnational Law is excited to announce the 2013-2014 Board of Editors. We had an exceptional pool of candidates to choose from and were very impressed by the enthusiasm and thoughtfulness this class displayed throughout the selection process. Please join us in congratulating them!
Fourth Circuit Court of Appeals cites Head of State Immunity As Sole Executive Lawmaking by Lewis Yelin, written for the 2011 Vanderbilt Journal of Transnational Law Symposium: Foreign State Immunity at Home and Abroad. Yousuf v Samantar Opinion (4th Circuit)
Vanderbilt University law professor Ingrid Wuerth has been selected as a reporter for the Restatement (Fourth) of the Foreign Relations Law of the United States, published by the American Law Institute. She will work on the immunities chapters, along with David Stewart, a visiting professor of law at Georgetown Law and former State Department official.
View the most recent Jonathan I. Charney Distinguished Lecture in Public International Law, presented by Fatou B. Bensouda.
Explore Other Vanderbilt Law Resources
