States More Sovereign Than Sovereign Nations

Even without petty analogies to the transfer of sovereignty in Iraq, a Supreme Court opinion this month reminds us that under the Court’s current doctrine, states have greater sovereign immunity than do sovereign nations.

In Republic of Austria v. Altmann, 124 S.Ct. 2240 (2004), the Court held that the 1976 Foreign Sovereign Immunities Act gave federal courts jurisdiction to hear an action against Austria to recover paintings allegedly stolen by the Nazis.

The Court emphasized that under Chief Justice Marshall’s opinion in Schooner Exchange v. McFaddon, 7 Cranch 116 (1812), “the jurisdiction of the United Sates over persons and property within its territory ‘is susceptible of no limitation not imposed by itself,’ and thus foreign sovereigns have no right to immunity in our courts.’” Because “foreign sovereign immunity is a matter of grace and comity rather than a constitutional requirement, this Court has ‘consistently ... deferred to the decisions of the political branches – in particular, those of the Executive Branch – on whether to take jurisdiction’ over particular actions ....” 124 S.Ct. at 2248 (quoting Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480 (1983)). The Court held that the FSIA could be applied retroactively, and also could be applied to events before the State Department adopted a restrictive view of foreign sovereign immunity in 1952.

The Court, of course, shows no such deference to the decisions of the federal political branches to abrogate state sovereign immunity. The Court has also imposed limits on federal jurisdiction over states that are not found in the Constitution or federal laws. Why it is an affront to the “dignity” of states to be a defendant in federal court, but not to the dignity of a foreign country (or of a Native American tribe, for that matter), is hard to understand.