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05/04/2017

Structural Reasoning in Venezuela v. Helmerich & Payne
Michael Ramsey

Venezuela v. Helmerich & Payne International, a statutory case decided by the U.S. Supreme Court early this week, illustrates a broader interpretive point.  The case concerns the Foreign Sovereign Immunities Act (FSIA), specifically the part of the FSIA that provides an exception for immunity for claims involving takings in violation of international law.  Helmerich, the plaintiff, claimed that Venezuela took its property in violation of international law.  The question for the Court was a narrow one: whether, as a jurisdictional matter Helmerich had to actually show at the outset of the case that a violation of international law occurred, or whether (as the lower court held) Helmerich could get past the threshold jurisdictional issue just by making a non-frivolous claim that international law had been violated.

I don't think the text of the FSIA does much to answer that question.  But (as the Court found unanimously) the statute's structure and background does a lot to answer it.  The central point of the FSIA is to keep foreign sovereigns out of U.S. court -- not just to protect them from U.S. judgments, but to protect them from U.S. litigation -- except in specific well-defined circumstances.  That's apparent from the structure -- a broad jurisdictional immunity followed by a list of exceptions.  It's also apparent from the background of foreign sovereign immunity, which traditionally held that it was an insult to sovereignty for one nation to take jurisdiction over another (subject, in more modern times, to limited exceptions).  As a result, it should not be enough to find jurisdiction for a plaintiff to make a non-frivolous argument for a taking in violation of international law; jurisdiction should depend on there actually being a taking in violation of international law.  This is roughly what the Court, per Justice Breyer, said.  From a summarizing paragraph part way through:

To find jurisdiction only where a taking does violate international law is thus consistent with basic international law and the related statutory objectives and principles that we have mentioned. But to find jurisdiction where a taking does not violate international law (e.g., where there is a nonfrivolous but ultimately incorrect argument that the taking violates international law) is inconsistent with those objectives. And it is difficult to understand why Congress would have wanted that result

Note first that Justice Breyer's opinion is statutory originalism -- that is, it turns on the statutes's original objectives and its international law background.  It just isn't especially textualist -- Breyer admits the text is ambiguous and the key structural and background points come from outside the text.  I think this connects with a broader point about originalist interpretation and some work I have been doing about Justice Scalia's originalism in practice.   Scalia was criticized for several lines of cases that seemed to go beyond the constitutional text, especially in standing, state immunity and federalism.  What he was applying in those cases, though, were the objectives and background assumptions -- what he called the "essential postulates" -- of the provisions in question.  Critics said he was not being faithful to his methodology, but I think this simply was part of his methodology.    Being a textualist (in Scalia's sense of it) does not mean giving up when the text alone is ambiguous.  I think Scalia would have been fine with the decision in Helmerich (as Justice Thomas was) for parallel reasons: the "essential postulate" of the FSIA is that foreign sovereigns should be protected from coming under the authority of U.S. courts except in narrow circumstances.  Thus a claim that one of the narrow circumstances exists must be proved up front, before the sovereign is subject to extensive litigation.  The text doesn't say this directly, but it was part of the background structural assumptions that produced the statute.