In the decades since 9/11 and the War on Terror, congressional foreign affairs powers have slowly waned in the face of an ascendant executive. So too have judicial checks been replaced by a jurisprudence of judicial deference to the executive in the realm of foreign affairs. Recent events, however, may indicate a growing appetite for change to this equilibrium. Mutond v. Lewis offers the Supreme Court another opportunity to reexamine the allocation of authority within the system, if the justices grant certiorari.

In 2016, Darryl Lewis, a Georgia resident and military veteran, was working in the Democratic Republic of Congo as an "unarmed security advisor" to DRC presidential candidate Moise Katumbi. While traveling with a colleague, Lewis was detained and accused of being an American mercenary sent to assassinate DRC President Joseph Kabila. According to the complaint, for the ensuing six weeks, Lewis remained in custody and was subjected to daily interrogations and harsh treatment at the hands of authorities. Upon his release, Lewis filed suit in federal court against the DRC's sitting Minister of Justice and the General Director of the National Intelligence Agency as individuals, alleging liability under the Torture Victim Protection Act of 1991. The defendants moved to dismiss the suit asserting, among other defenses, official immunity.

The State Department refrained from issuing a suggestion of immunity for the officials. Lacking executive input, the district court dismissed the action for lack of subject matter jurisdiction after conducting its own analysis. Relying on Section 66(f) of the Restatement (Second) of Foreign Relations Law of the United States to determine the scope of the common law immunity, and the Supreme Court's more recent decision in Samantar v. Yousuf, the U.S. Court of Appeals for the D.C. Circuit Court reversed.

Under Samantar, it has been understood that individual foreign officials, other than heads of state and diplomats, do not qualify for immunity under the Foreign Sovereign Immunities Act of 1976. Rather the immunity granted to these officials derives from the federal common-law doctrine of foreign official immunity. Under the common-law doctrine, immunity depends on a two-step procedure. First, the State Department can issue a "suggestion of immunity" for the foreign state. Second, absent State Department recognition, courts make independent eligibility determinations.

Since Samantar, the executive has taken a broad view of its power to make immunity decisions under its foreign affairs powers. This interpretation of a near-absolute power of determination has been memorialized in various memoranda by the State Department and justified under a number of preexisting powers, principally the recognition power found in Article II of the Constitution. This current doctrine resembles the state of affairs following the Tate Letter of 1952 until Congress enacted the FSIA roughly a quarter-century later. Unfortunately, just as it did after the Tate Letter, the insertion of the executive's power into the judicial process has created confusion for the courts.

Mutond presents two questions. The first is whether the TVPA displaces portions of the common law to create an exception to the common law doctrine for jus cogens violations, following the Fourth Circuit. The second is whether suing a foreign government official in their individual capacity is compatible with the current doctrine, which immunizes individuals working in their official capacity.

As to the first issue, Lewis appears to have the stronger argument, barring contrary determinations of immunity by the executive. First, under the hierarchy of laws, "when there is such a clear conflict between statutory […] and judge-made law, the common law must give way." A contrary understanding would contravene the purpose of the law by inhibiting most actions. And to the extent a particular case carries delicate foreign-relations implications for the United States, various doctrines of case-specific deference remain available.

To the second issue, the problem is not as inflexible as it seems at first glance. Following the common-law test should result in a fact specific, case-by-case determination rather than hard rules. Also, the threat of a deluge of litigation as a result of the court permitting this distinction is overstated. Plaintiffs will be constrained by practical considerations like the solvency of their defendants. States, typically having deeper pockets, will continue to be the more attractive defendants for potential litigants.

Apart from the two issues, the case presents an opportunity for the court to opine on others. For example, does the Restatement (Second) provide the current standard governing common-law immunity (not to mention a host of other issues), given that the Restatement has undergone two subsequent revisions? Perhaps more importantly, to what extent will the court defer to State Department recommendations? As no recommendation was provided in Mutond, this issue will likely elude a definitive decision. Finally, the act of state doctrine is lurking in the background. Some commentators have asserted that the act of state doctrine in combination with status and conduct based immunities would nearly completely remove the determination of sovereign immunity from the competency of the courts, preserving it solely for the political branches. While this theory extends far beyond the historical underpinnings of the doctrine (as it does not require a court to question the validity of a foreign act), it could provide essential insight into the underlying policies that, in the current court's opinion, animate the doctrine's scope.

However the court resolves Mutond, Congress may have the last word. As experience with the FSIA demonstrated, federal legislation can help to decouple the law from politics and ensure legally predictable outcomes in the future by establishing judicially manageable standards. New legislation should address the conduct-based immunities for individuals presented in Mutond, and, at a minimum, codify the doctrine, much as the FSIA did for foreign state immunity.

Peter B. "Bo" Rutledge is dean of the University of Georgia School of Law, where he holds the Herman Talmadge Chair of Law. A former clerk to U.S. Supreme Court Justice Clarence Thomas, Rutledge pursues teaching and research of international dispute resolution, arbitration, international business transactions and the U.S. Supreme Court. 

Miles S. Porter is a second-year law student at the University of Georgia School of Law and a recipient of the Talmadge Law Scholarship and the Veterans Scholarship.