Today is a legal holiday at the Supreme Court; hearings will resume on Tuesday. The Court will turn then to the role of American courts in overseeing controls on people entering the U.S. from other countries and in enforcing sanctions against rogue behavior by foreign governments or their agencies.
The Court will broadcast “live” the audio (no video) of the hearings on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of each case, on C-Span TV at this link: cspan.org/supremecourt
First case Tuesday: Santos-Zacaria v. Garland, U.S. Attorney General The hearing begins at 10 a.m. and is scheduled for one hour.
Background: It is one of the basic traits of an independent nation, fully recognized in international law, that it has control over its borders – who and what may enter. At times, U.S. border policy has been harsh in the extreme, especially when motivated by a bigoted desire to protect “racial purity.”
A historic example of that came in 1882, when Congress passed a law that stopped entry of people from China and barred Chinese immigrants already in the U.S. from becoming citizens. The Supreme Court upheld that law in 1889. Today, the most extreme supporters of closing U.S. borders promote the so-called “great replacement theory,” based on race-driven hostility toward foreign nationals.
Current immigration policy is not nearly as harsh, but it is almost impenetrably complex. For a foreign national who entered the country illegally but wants to remain, there are opportunities to do so, but navigating the labyrinth of federal agencies and the courts is truly daunting. This case is an illustration of that.
Leon Santos-Zacaria, who filed this appeal in the Supreme Court, is a transgender woman (identified as male at birth, now identifying as female) from Guatemala. Because of her identity as transgender and her sexual attraction to men, she fears persecution if she must live in Guatemala. Three times, she came to the U.S. illegally, and twice before has been sent back to her home country. After her third arrival, immigration officials once more moved to deport her.
Her case reaches the Court against a broad background of how the various parts of the U.S. government deal with policy that is highly technical and requires specialized expertise. At the founding in 1789, three Cabinet departments were created on that model: State for diplomacy, Treasury for public finances, and War for defense and national security. The Constitution gives Congress the power to set up such agencies. In 1887, for the first time, Congress decided to set up a special, independent agency outside of the Cabinet to manage the technical matter of setting railroad freight rates (the Interstate Commerce Commission). Many more have followed.
The multifaceted immigration policy organizations – the Immigration and Nationalization Service and the Department of Homeland Security – are the basic institutions regulating entry of foreign nationals.
Federal courts, themselves created in 1789, have general authority to decide cases appealed from such agencies, but Congress has often made access to those courts wait until individuals and organizations take their pleas or grievances to specialized agencies, like the INS. Technically, the remedies available at such agencies must be “exhausted” – that is, used or tried – first, before one can go to court.
In recent years, the Supreme Court has been attempting to sort out the courts’ role in reviewing technical agency rulings, focusing on the fundamental question of when a court may hear an appeal from those decisions – that is, when does a court have “jurisdiction”? If a court lacks jurisdiction, it cannot rule.
But a challenge to a court’s jurisdiction can be raised at any time during a court case – at the beginning, in the middle of the proceeding, or even after it is over. That can lead to considerable waste of time and can leave a significant question unanswered.
The Court has developed the view that, if Congress wants to write a law that limits a federal court’s authority to rule, it must say so clearly. Congress can also write a law that dictates procedures in the courts or federal agencies, but those can be forfeited or waived. If a federal law does not specify a binding limit on jurisdiction, the Court will treat it as a procedural guide only.
In Santos-Zacaria’s case, pursued at the INS, she tried to head off deportation by claiming that she would be persecuted or even tortured if sent back to Guatemala. An immigration judge ruled against her, and she then appealed to a Board of Immigration Appeals, and lost again. She then attempted to appeal to a federal circuit court, seeking to reopen her case. She contended that the Board mishandled her case, procedurally, so she was entitled to a new review.
Under immigration law, a foreign national cannot challenge in court a Board ruling if that person has not first complained directly to that Board about its claimed procedural misstep. Was that a strict bar to the court’s jurisdiction? The appeals court said it was, dismissing her appeal. It made no difference, that court said, that immigration officials in her case had waived that limitation when asked.
The question before the Court: Is a federal court barred from reviewing the ruling of an immigration appeals board if the foreign national involved did not first make that challenge at the board?
Significance: The federal appeals courts are split on whether Congress has spoken clearly enough in limiting the power of federal courts to review the decisions in immigration cases over potential deportation of foreign nationals. The Biden Administration’s Justice Department takes the view that the limit is binding and cannot be waived or forfeited. The Supreme Court presumably will settle that issue in this case.
For foreign nationals, perhaps already challenged by limited education or language skills, making their way through the U.S. immigration system is even harder if they cannot be sure just what powers officials have to hear and decide their claims.
Of wider importance is whether the Court will use this case to give further guidance on what Congress may do when it seeks to control the power of the federal courts, in any given field of law. The Constitution no doubt gives Congress wide discretion about how far it wants to go, but its laws are not always written with crystal clarity.
Second case Tuesday: Turkiye Halk Bankasi A.S. v. United States This hearing will begin after the immigration hearing has ended; it is scheduled for one hour.
Background: Just as an independent nation has clear control over its borders and who may enter, another basic characteristic of such sovereignty is that the government is usually (but not always) immune to being sued or prosecuted in the courts of another nation. That is a matter of nation-to-nation courtesy, and assurance of equal treatment among nations.
For most of America’s history, foreign governments had that kind of immunity in U.S. courts. But, as early as 1812, the Supreme Court ruled that Congress had the authority under the Constitution to grant or withhold that immunity to other nations and their governing agencies. Congress, the Court made clear, must speak with clarity if it intends to withhold that immunity.
In the 20th Century, as more nations’ governments began engaging in commercial activity, the theory developed – in the U.S. and elsewhere – that sovereign immunity to being sued in other nations’ courts would not apply when a nation was acting in a private capacity.
In 1952, the U.S. State Department adopted that theory, concluding that immunity would not apply in U.S. courts to strictly commercial activity by entities of foreign governments. Congress found that unsatisfactory, because it sometimes depended on complex diplomacy with other nations. So Congress in 1976 passed the Foreign Sovereign Immunities Act.
While the Act generally recognized immunity for foreign nations, it withdrew it in specific kinds of civil lawsuits – that is, cases over commercial activity inside the U.S. by a foreign government entity, over commercial activity here that was connected to such activity overseas, and over commercial activity abroad that has a “direct effect” in the U.S. The Act does not mention prosecution for violating U.S. criminal laws.
Criminal prosecution is the issue in this case; it arises out of attempts by U.S. prosecutors to enforce U.S. sanctions against Iran by pursuing criminal charges against a Turkish bank – owned and controlled by Turkey’s government – for allegedly laundering billions of dollars that had been paid to Iran for oil and gas.
Sanctions against foreign governments, and sometimes against foreign officials, are based on the U.S. government’s sovereign authority to determine the nature of its dealings with other governments. Often, such punitive measures limit access to U.S. banking or other businesses. Federal agencies, including the Treasury and Justice Departments, vigorously enforce those measures.
The U.S. government has been imposing sanctions on the government of Iran for more than four decades– first, in 1979, for seizing the American embassy in Tehran. Later, punishing economic limits have been adopted in reaction to terrorism, development of nuclear weapons and ballistic missiles, and various abuses of human rights. Just last month, a new round of sanctions went into effect against specific Iranian officials and agencies for the harsh crackdown – including executions – of people engaging in anti-government protests there.
At the center of this case before the Court is a commercial bank, Turkiye Halk Bankasi A.S. (sometimes shortened to Halkbank). An arm of Turkey’s government, the Turkish Wealth Fund, owns 75 percent of the bank.
In 2019, a federal grand jury in New York charged the bank with a major role in a multi-year scheme to launder billions of dollars’ worth of Iranian oil and natural gas proceeds. The bank held those funds in the accounts of three agencies of the Iranian government. The indictment claimed that the bank moved at least $1 billion of the funds through the U.S. financial system in direct violation of the sanctions on Iran’s government agencies. The criminal charges included conspiracies to obstruct the U.S. Treasury and the sanctions regime, a conspiracy to commit bank fraud and money laundering, and committing bank fraud and money laundering. Before the case could go to trial, the bank moved to dismiss the charges, claiming that as a foreign government entity, it was immune to criminal prosecution in U.S. courts.
A federal judge dismissed the challenge, rejecting the immunity claim, and the case then went to a federal appeals court in New York. It ruled that the bank had a right to appeal the case even before trial, but then rejected the immunity claim. Noting that the bank had argued that the 1976 law on foreign government immunity generally assured it of that defense to the indictment, the appeals court said that the law only applied to civil cases, not criminal proceedings.
The bank then took the case to the Supreme Court, arguing that the lower court rulings have brought “a dramatic unleashing of federal criminal jurisdiction over foreign states” and violated not only U.S. law but also international law. It asserted that this was the first time a federal court had cleared the way for an actual criminal trial against a foreign government or its entities, and that the lower courts are split on the immunity issue.
The Biden Administration urged the Court to bypass the case, contending that the U.S. government for decades had taken action against commercial enterprises owned or controlled by foreign governments. This case, the Administration said, broke no new ground legally. It also argued that there was serious doubt whether the bank had any right to appeal on the immunity issue, before any trial on the charges. The Court granted review anyway, continuing a pattern in recent years of closely monitoring the foreign sovereign immunity question.
The question before the Court: Are agencies of foreign governments completely immune to criminal prosecution in U.S. courts, under U.S. or international law? (A second potential issue in the case is whether the Turkish bank had a legal right to pursue its challenge before any trial had been held; a lower court allowed it to appeal.)
Significance: Whether or not the opening of a criminal case in a U.S. federal court against an arm of a foreign government is a unique or novel thing, it is important to foreign relations in general that the U.S. government – a trend-setter in global diplomacy – is doing so in an energetic and potentially deeply punitive fashion. The prosecutors in the New York federal judicial district have a reputation for being among the most aggressive of any in the nation, and their move in this case was bold, indeed.
In the modern world, where tensions among nations regularly arise in threatening ways, there is genuine sensitivity to the actions of major powers toward each other. There is always the potential for retaliation in response to energetic or aggressive action toward another sovereign state. Law, of course, is intended to be a peaceful means for resolution of international conflict, but – as this case illustrates – lawsuits can themselves be an insult to a nation’s self-image and its dignity and can disrupt the ties of friendly partners.
The government of Turkey has entered the case to stress how important it is to the U.S. as a partner in the North Atlantic Treaty Organization and other international initiatives, including aiding Ukraine since the invasion by Russia. Its legal brief in the case stresses the long-standing diplomatic and trade ties between it and the U.S., and stresses that it does not allow its own courts to prosecute any other nation or its agencies on criminal charges.
The Court’s recent trend in decisions dealing with foreign sovereign immunity has generally been toward limiting U.S. courts’ powers. It may have taken this case in order to resolve, in a definitive way, a core constitutional question on which history is at best uncertain.
On Wednesday, the Court will complete the current round of hearings with a case on the rights of children with disabilities to an education. The Court will then recess its hearing schedule until February 21.