Lawyers for victims and their family members whose property was taken in Nazi-era Germany and Hungary told the Supreme Court on Dec. 7 that they should be allowed to pursue lawsuits seeking compensation from the foreign governments in the courts of the United States.
The Trump administration opposes that legal stance, arguing that the claims for damages should be pursued overseas and that letting the litigation proceed in the United States threatens to entangle the judiciary in sensitive foreign policy questions best left to the executive branch.
The Supreme Court heard two cases, Republic of Hungary v. Simon and Federal Republic of Germany v. Philipp, telephonically. Although the high court often consolidates similar cases to expedite the process, it didn’t do so for the two cases. One hour was allotted for oral argument for each case. Chief Justice John Roberts allowed the hearing for the Hungarian case to span 81 minutes; for the German case, 88 minutes.
Both Germany and Hungary at the time in question maintained brutal anti-Semitic policies that culminated in the systematic persecution, deportation, and murder of 6 million Jews in the Holocaust.
The litigants argue they were allowed to sue stateside by virtue of what lawyers call the “expropriations exception” of the Foreign Sovereign Immunities Act (FSIA), a U.S. statute that otherwise limits the jurisdiction of U.S. courts over lawsuits against foreign governments. The exception, the families contend, permits suits against foreign governments when property is seized “in violation of international law.”
In the Hungarian case, attorney Sarah E. Harrington told the justices during oral argument that it is best in the circumstances for U.S. courts to mete out justice to the victims.
The United States “has a strong and long-standing interest in directly helping Holocaust victims seek justice,” she said, noting that the hearing was taking place on Pearl Harbor Day, “which marks 79 years exactly since the U.S. was drawn into World War II.”
“The reason the atrocities at places like Auschwitz were stopped and were exposed to the world is due in large part to our soldiers who sacrificed in the name of the United States. This Court has held over and over that our Constitution assigns responsibility for foreign policy to the elected branches, not to courts.
“And over the last 70 years, those branches have repeatedly taken steps to make it easier for plaintiffs to pursue Holocaust-era claims like these in U.S. courts.”
When Congress created FSIA, it made clear that U.S. courts have jurisdiction to decide such claims, Harrington said.
“And Congress has updated the FSIA and enacted other legislation to make it easier for plaintiffs to pursue Holocaust-era claims in U.S. courts,” she said.
Yet Hungary and the United States are now asking the court “to recognize an abstention doctrine that would permit courts to overrule Congress’s foreign policy determinations with no involvement from the executive. Such a doctrine runs afoul of separation of powers principles and has no foundation in our legal history.”
It would also undermine the key purpose of FSIA, “which was to eliminate ad hoc determinations about when courts should exercise jurisdiction over foreign sovereigns based on the foreign policy concerns of the moment.”
“Hungary wants courts to decide whether these are the types of claims that should be heard in U.S. courts, but Congress has already decided that they are,” Harrington said.
Roberts seemed skeptical, telling the lawyer that her theory “would sweep very broadly and call into question” various existing legal doctrines.
Justice Stephen Breyer suggested to Harrington that her approach could cause problems in the countries sued. If, for example, victims of apartheid sued South Africa, that government could reply that apartheid no longer exists and “we have a system for dealing with it,” so “please don’t mess up what we’re trying to do.”
In the German case, Deputy Solicitor General Edwin Kneedler said the U.S. government “deplores the atrocities committed against victims of the Nazi regime and has long had a policy of encouraging Germany and other countries to provide mechanisms to afford a measure of justice.”
But the litigants took the wrong path in suing Germany in U.S. courts, he said, because “the exception to sovereign immunity on which they rely is limited to violations of the international law of takings or expropriations, which has long prohibited only the taking of a foreign national’s property if done without compensation.”
To interpret the expropriation exception “as opening U.S. courts to suits based on human rights violations would constitute a major ... departure from the FSIA’s text, structure, and context, and require U.S. courts to make sensitive judgments about a foreign state’s treatment of the persons within its territory,” Kneedler said.
In the Hungarian case, Hungary’s attorney, Gregory Silbert, said that “foreign nations will be understandably upset if U.S. courts adjudicate foreign disputes where foreign interests predominate and there is little, if any, U.S. interest on the other side.”
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