Samantar v. Yousuf

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SAMANTAR v. YOUSUF ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 08–1555. Argued March 3, 2010—Decided June 1, 2010
Respondents, who were persecuted by the Somali government during
the 1980’s, filed a damages action alleging that petitioner, who then
held high level government positions, exercised command and control
over the military forces committing the abuses; that he knew or
should have known of these acts; and that he aided and abetted in
their commission. The District Court concluded that it lacked sub
ject-matter jurisdiction and granted petitioner’s motion to dismiss the
suit, resting its decision on the Foreign Sovereign Immunities Act of
1976 (FSIA or Act), which provides that a “foreign state shall be im
mune from the jurisdiction” of both federal and state courts except as
provided in the Act, 28 U. S. C. §1604. The Fourth Circuit reversed,
holding that the FSIA does not apply to officials of a foreign state.
Held: The FSIA does not govern petitioner’s claim of immunity. Pp. 4–
20.
(a) Under the common-law doctrine of foreign sovereign immunity,
see Schooner Exchange v. McFaddon, 7 Cranch 116, if the State De
partment granted a sovereign’s diplomatic request for a “suggestion
of immunity,” the district court surrendered its jurisdiction, Ex parte
Peru, 318 U. S. 573, 581, 587. If the State Department refused, the
court could decide the immunity issue itself. Id., at 587. In 1952, the
State Department moved from a policy of requesting immunity in
most actions against friendly sovereigns to a “restrictive” theory that
confined immunity “to suits involving the foreign sovereign’s public
acts.” Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 487.
Inconsistent application of sovereign immunity followed, leading to
the FSIA, whose primary purposes are (1) to endorse and codify the
restrictive theory, and (2) to transfer primary responsibility for decid
ing “claims of foreign states to immunity” from the State Department
2 SAMANTAR v. YOUSUF
Syllabus
to the courts. §1602. This Act now governs the determination
whether a foreign state is entitled to sovereign immunity. Pp. 4–7.
(b) Reading the FSIA as a whole, there is nothing to suggest that
“foreign state” should be read to include an official acting on behalf of
that state. The Act specifies that a foreign state “includes a political
subdivision . . . or an agency or instrumentality” of that state,
§1603(a), and specifically delimits what counts as an “agency or in
strumentality,” §1603(b). Textual clues in the “agency or instrumen
tality” definition—“any entity” matching three specified characteris
tics, ibid.—cut against reading it to include a foreign official.
“Entity” typically refers to an organization; and the required statu
tory characteristics—e.g., “separate legal person,” §1603(b)(1)—apply
awkwardly, if at all, to individuals. Section 1603(a)’s “foreign state”
definition is also inapplicable. The list set out there, even if illustra
tive rather than exclusive, does not suggest that officials are in
cluded, since the listed defendants are all entities. The Court’s con
clusion is also supported by the fact that Congress expressly
mentioned officials elsewhere in the FSIA when it wished to count
their acts as equivalent to those of the foreign state. Moreover, other
FSIA provisions—e.g., §1608(a)—point away from reading “foreign
state” to include foreign officials. Pp. 7–13.
(c) The FSIA’s history and purposes also do not support petitioner’s
argument that the Act governs his immunity claim. There is little
reason to presume that when Congress codified state immunity, it in
tended to codify, sub silentio, official immunity. The canon of con
struction that statutes should be interpreted consistently with the
common law does not help decide the question whether, when a stat
ute’s coverage is ambiguous, Congress intended it to govern a par
ticular field. State and official immunities may not be coextensive,
and historically, the Government has suggested common-law immu
nity for individual officials even when the foreign state did not qual
ify. Though a foreign state’s immunity may, in some circumstances,
extend to an individual for official acts, it does not follow that Con
gress intended to codify that immunity in the FSIA. Official immu
nity was simply not the problem that Congress was addressing when
enacting that Act. The Court’s construction of the Act should not be
affected by the risk that plaintiffs may use artful pleading to attempt
to select between application of the FSIA or the common law. This
case, where respondents have sued petitioner in his personal capacity
and seek damages from his own pockets, is governed by the common
law because it is not a claim against a foreign state as defined by the
FSIA. Pp. 13–19.
(d) Whether petitioner may be entitled to common-law immunity
and whether he may have other valid defenses are matters to be ad
Cite as: 560 U. S. ____ (2010) 3
Syllabus
dressed in the first instance by the District Court. P. 20.
552 F. 3d 371, affirmed and remanded.
STEVENS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ.,
joined. ALITO, J., filed a concurring opinion. THOMAS, J., filed an opin
ion concurring in part and concurring in the judgment. SCALIA, J., filed
an opinion concurring in the judgment.
Cite as: 560 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–1555
_________________
MOHAMED ALI SAMANTAR, PETITIONER v. BASHE
ABDI YOUSUF ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 1, 2010]
JUSTICE STEVENS delivered the opinion of the Court.
From 1980 to 1986 petitioner Mohamed Ali Samantar
was the First Vice President and Minister of Defense of
Somalia, and from 1987 to 1990 he served as its Prime
Minister. Respondents are natives of Somalia who allege
that they, or members of their families, were the victims of
torture and extrajudicial killings during those years. They
seek damages from petitioner based on his alleged au
thorization of those acts. The narrow question we must
decide is whether the Foreign Sovereign Immunities Act of
1976 (FSIA or Act), 28 U. S. C. §§1330, 1602 et seq., pro
vides petitioner with immunity from suit based on actions
taken in his official capacity. We hold that the FSIA does
not govern the determination of petitioner’s immunity
from suit.
I
Respondents are members of the Isaaq clan, which
included well-educated and prosperous Somalis who were
subjected to systematic persecution during the 1980’s by
the military regime then governing Somalia. They allege
that petitioner exercised command and control over mem
2 SAMANTAR v. YOUSUF
Opinion of the Court
bers of the Somali military forces who tortured, killed, or
arbitrarily detained them or members of their families;
that petitioner knew or should have known of the abuses
perpetrated by his subordinates; and that he aided and
abetted the commission of these abuses.1 Respondents’
complaint sought damages from petitioner pursuant to the
Torture Victim Protection Act of 1991, 106 Stat. 73, note
following 28 U. S. C. §1350, and the Alien Tort Statute, 28
U. S. C. §1350. Petitioner, who was in charge of Somalia’s
armed forces before its military regime collapsed, fled
Somalia in 1991 and is now a resident of Virginia. The
United States has not recognized any entity as the gov
ernment of Somalia since the fall of the military regime.
See Brief for United States as Amicus Curiae 4.
Respondents filed their complaint in November 2004,
and petitioner promptly moved to dismiss. The District
Court stayed the proceedings to give the State Depart
ment an opportunity to provide a statement of interest
regarding petitioner’s claim of sovereign immunity. Each
month during the ensuing two years, petitioner advised
the court that the State Department had the matter “ ‘still
under consideration.’ ” No. 1:04cv1360 (ED Va., Aug. 1,
2007), App. to Pet. for Cert. 44a. In 2007, having received
no response from the State Department, the District Court
reinstated the case on its active docket. The court con
cluded that it did not have subject-matter jurisdiction and
granted petitioner’s motion to dismiss.
The District Court’s decision rested squarely on the
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1 Although we do not set out respondents’ allegations in detail, the
District Court’s written opinion contains a comprehensive summary,
describing not only the abuses respondents suffered but also the his
torical context in which the abuses occurred, as well as some of the
attempts to establish a stable government in Somalia in recent years.
See No. 1:04cv1360 (ED Va., Aug. 1, 2007), App. to Pet. for Cert. 31a–
43a.
Cite as: 560 U. S. ____ (2010) 3
Opinion of the Court
FSIA.2 The FSIA provides that a “foreign state shall be
immune from the jurisdiction” of both federal and state
courts except as provided in the Act, 28 U. S. C. §1604,
and the District Court noted that none of the parties had
argued that any exception was applicable, App. to Pet. for
Cert. 46a–47a. Although characterizing the statute as
silent on its applicability to the officials of a foreign state,
the District Court followed appellate decisions holding
that a foreign state’s sovereign immunity under the Act
extends to “ ‘an individual acting in his official capacity on
behalf of a foreign state,’ ” but not to “ ‘an official who acts
beyond the scope of his authority.’ ” Id., at 47a (quoting
Velasco v. Government of Indonesia, 370 F. 3d 392, 398,
399 (CA4 2004)). The court rejected respondents’ argu
ment that petitioner was necessarily acting beyond the
scope of his authority because he allegedly violated inter
national law.3
The Court of Appeals reversed, rejecting the District
Court’s ruling that the FSIA governs petitioner’s immu
nity from suit. It acknowledged “the majority view”
——————
2 Petitioner argued that, in addition to his immunity under the FSIA,
the complaint should be dismissed on a number of other grounds, which
the District Court did not reach. See id., at 45a, n. 11.
3 Because we hold that the FSIA does not govern whether an individ
ual foreign official enjoys immunity from suit, we need not reach
respondents’ argument that an official is not immune under the FSIA
for acts of torture and extrajudicial killing. See Brief for Respondents
51–53. We note that in determining petitioner had not acted beyond
the scope of his authority, the District Court afforded great weight to
letters from the Somali Transitional Federal Government (TFG) to the
State Department, App. to Pet. for Cert. 55a, in which the TFG sup
ported petitioner’s claim of immunity and stated “the actions attributed
to [petitioner] in the lawsuit . . . would have been taken by [petitioner]
in his official capacities,” App. 104. Although the District Court de
scribed the TFG as “recognized by the United States as the governing
body in Somalia,” App. to Pet. for Cert. 54a, the United States does not
recognize the TFG (or any other entity) as the government of Somalia,
see Brief for United States as Amicus Curiae 5.
4 SAMANTAR v. YOUSUF
Opinion of the Court
among the Circuits that “the FSIA applies to individual
officials of a foreign state.” 552 F. 3d 371, 378 (CA4
2009).4 It disagreed with that view, however, and con
cluded, “based on the language and structure of the stat
ute, that the FSIA does not apply to individual foreign
government agents like [petitioner].” Id., at 381.5 Having
found that the FSIA does not govern whether petitioner
enjoys immunity from suit, the Court of Appeals re
manded the case for further proceedings, including a
determination of whether petitioner is entitled to immu
nity under the common law. Id., at 383–384. We granted
certiorari. 557 U. S. ___ (2009).
II
The doctrine of foreign sovereign immunity developed as
a matter of common law long before the FSIA was enacted
in 1976. In Verlinden B. V. v. Central Bank of Nigeria,
461 U. S. 480, 486 (1983), we explained that in Schooner
Exchange v. McFaddon, 7 Cranch 116 (1812), “Chief Jus
tice Marshall concluded that . . . the United States had
impliedly waived jurisdiction over certain activities of
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4 Compare 552 F. 3d, at 381 (holding the FSIA does not govern the
immunity of individual foreign officials), and Enahoro v. Abubakar, 408
F. 3d 877, 881–882 (CA7 2005) (same), with Chuidian v. Philippine
Nat. Bank, 912 F. 2d 1095, 1103 (CA9 1990) (concluding that a suit
against an individual official for acts committed in his official capacity
must be analyzed under the FSIA), In re Terrorist Attacks on September
11, 2001, 538 F. 3d 71, 83 (CA2 2008) (same), Keller v. Central Bank of
Nigeria, 277 F. 3d 811, 815 (CA6 2002) (same), Byrd v. Corporacion
Forestal y Industrial de Olancho S. A., 182 F. 3d 380, 388 (CA5 1999)
(same), and El-Fadl v. Central Bank of Jordan, 75 F. 3d 668, 671
(CADC 1996) (same).
5 As an alternative basis for its decision, the Court of Appeals held
that even if a current official is covered by the FSIA, a former official is
not. See 552 F. 3d, at 381–383. Because we agree with the Court of
Appeals on its broader ground that individual officials are not covered
by the FSIA, petitioner’s status as a former official is irrelevant to our
analysis.
Cite as: 560 U. S. ____ (2010) 5
Opinion of the Court
foreign sovereigns.” The Court’s specific holding in Schoo
ner Exchange was that a federal court lacked jurisdiction
over “a national armed vessel . . . of the emperor of
France,” id., at 146, but the opinion was interpreted as
extending virtually absolute immunity to foreign sover
eigns as “a matter of grace and comity,” Verlinden, 461
U. S., at 486.
Following Schooner Exchange, a two-step procedure
developed for resolving a foreign state’s claim of sovereign
immunity, typically asserted on behalf of seized vessels.
See, e.g., Republic of Mexico v. Hoffman, 324 U. S. 30, 34–
36 (1945); Ex parte Peru, 318 U. S. 578, 587–589 (1943);
Compania Espanola de Navegacion Maritima, S. A. v. The
Navemar, 303 U. S. 68, 74–75 (1938). Under that proce
dure, the diplomatic representative of the sovereign could
request a “suggestion of immunity” from the State De
partment. Ex parte Peru, 318 U. S., at 581. If the request
was granted, the district court surrendered its jurisdic
tion. Id., at 588; see also Hoffman, 324 U. S., at 34. But
“in the absence of recognition of the immunity by the
Department of State,” a district court “had authority to
decide for itself whether all the requisites for such immu
nity existed.” Ex parte Peru, 318 U. S., at 587; see also
Compania Espanola, 303 U. S., at 75 (approving judicial
inquiry into sovereign immunity when the “Department of
State . . . declined to act”); Heaney v. Government of Spain,
445 F. 2d 501, 503, and n. 2 (CA2 1971) (evaluating sov
ereign immunity when the State Department had not
responded to a request for its views). In making that
decision, a district court inquired “whether the ground of
immunity is one which it is the established policy of the
[State Department] to recognize.” Hoffman, 324 U. S., at
36. Although cases involving individual foreign officials as
defendants were rare, the same two-step procedure was
typically followed when a foreign official asserted immu
nity. See, e.g., Heaney, 445 F. 2d, at 504–505; Waltier v.
6 SAMANTAR v. YOUSUF
Opinion of the Court
Thomson, 189 F. Supp. 319 (SDNY 1960).6
Prior to 1952, the State Department followed a general
practice of requesting immunity in all actions against
friendly sovereigns, but in that year the Department
announced its adoption of the “restrictive” theory of sover
eign immunity. Verlinden, 461 U. S., at 486–487; see also
Letter from Jack B. Tate, Acting Legal Adviser, Depart
ment of State, to Acting Attorney General Philip B.
Perlman (May 19, 1952), reprinted in 26 Dept. State Bull.
984–985 (1952). Under this theory, “immunity is confined
to suits involving the foreign sovereign’s public acts, and
does not extend to cases arising out of a foreign state’s
strictly commercial acts.” Verlinden, 461 U. S., at 487.
This change threw “immunity determinations into some
disarray,” because “political considerations sometimes led
the Department to file ‘suggestions of immunity in cases
where immunity would not have been available under the
restrictive theory.’ ” Republic of Austria v. Altmann, 541
U. S. 677, 690 (2004) (quoting Verlinden, 461 U. S., at
487).
Congress responded to the inconsistent application of
sovereign immunity by enacting the FSIA in 1976.
Altmann, 541 U. S., at 690–691; see also Verlinden, 461
U. S., at 487–488. Section 1602 describes the Act’s two
primary purposes: (1) to endorse and codify the restrictive
theory of sovereign immunity, and (2) to transfer primary
responsibility for deciding “claims of foreign states to
immunity” from the State Department to the courts.7
——————
6 Diplomatic and consular officers could also claim the “specialized
immunities” accorded those officials, Restatement (Second) of Foreign
Relations Law of the United States §66, Comment b (1964–1965)
(hereinafter Restatement), and officials qualifying as the “head of state”
could claim immunity on that basis, see Schooner Exchange v. McFad
don, 7 Cranch 116, 137 (1812) (describing “the exemption of the person
of the sovereign” from “a jurisdiction incompatible with his dignity”).
7 The full text of §1602, entitled “Findings and declaration of pur
Cite as: 560 U. S. ____ (2010) 7
Opinion of the Court
After the enactment of the FSIA, the Act—and not the
pre-existing common law—indisputably governs the de
termination of whether a foreign state is entitled to sover
eign immunity.
What we must now decide is whether the Act also covers
the immunity claims of foreign officials. We begin with
the statute’s text and then consider petitioner’s reliance on
its history and purpose.
III
The FSIA provides that “a foreign state shall be immune
from the jurisdiction of the courts of the United States and
of the States” except as provided in the Act. §1604. Thus,
if a defendant is a “foreign state” within the meaning of
the Act, then the defendant is immune from jurisdiction
unless one of the exceptions in the Act applies. See
§§1605–1607 (enumerating exceptions). The Act, if it
applies, is the “sole basis for obtaining jurisdiction over a
foreign state in federal court.” Argentine Republic v.
Amerada Hess Shipping Corp., 488 U. S. 428, 439 (1989).
The question we face in this case is whether an individual
sued for conduct undertaken in his official capacity is a
“foreign state” within the meaning of the Act.
The Act defines “foreign state” in §1603 as follows:
“(a) A ‘foreign state’ . . . includes a political subdivi
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pose,” reads as follows:
“The Congress finds that the determination by United States courts
of the claims of foreign states to immunity from the jurisdiction of such
courts would serve the interests of justice and would protect the rights
of both foreign states and litigants in United States courts. Under
international law, states are not immune from the jurisdiction of
foreign courts insofar as their commercial activities are concerned, and
their commercial property may be levied upon for the satisfaction of
judgments rendered against them in connection with their commercial
activities. Claims of foreign states to immunity should henceforth be
decided by courts of the United States and of the States in conformity
with the principles set forth in this chapter.”
8 SAMANTAR v. YOUSUF
Opinion of the Court
sion of a foreign state or an agency or instrumentality
of a foreign state as defined in subsection (b).
“(b) An ‘agency or instrumentality of a foreign state’
means any entity—
“(1) which is a separate legal person, corporate or
otherwise, and
“(2) which is an organ of a foreign state or political
subdivision thereof, or a majority of whose shares or
other ownership interest is owned by a foreign state or
political subdivision thereof, and
“(3) which is neither a citizen of a State of the
United States as defined in section 1332(c) and (e) of
this title, nor created under the laws of any third
country.”
The term “foreign state” on its face indicates a body
politic that governs a particular territory. See, e.g., Re
statement §4 (defining “state” as “an entity that has a
defined territory and population under the control of a
government and that engages in foreign relations”). In
§1603(a), however, the Act establishes that “foreign state”
has a broader meaning, by mandating the inclusion of the
state’s political subdivisions, agencies, and instrumentali
ties. Then, in §1603(b), the Act specifically delimits what
counts as an agency or instrumentality. Petitioner argues
that either “foreign state,” §1603(a), or “agency or instru
mentality,” §1603(b), could be read to include a foreign
official. Although we agree that petitioner’s interpretation
is literally possible, our analysis of the entire statutory
text persuades us that petitioner’s reading is not the
meaning that Congress enacted.
We turn first to the term “agency or instrumentality of a
foreign state,” §1603(b). It is true that an individual
official could be an “agency or instrumentality,” if that
term is given the meaning of “any thing or person through
which action is accomplished,” In re Terrorist Attacks on
Cite as: 560 U. S. ____ (2010) 9
Opinion of the Court
Sept. 11, 2001, 538 F. 3d 71, 83 (CA2 2008). But Congress
has specifically defined “agency or instrumentality” in the
FSIA, and all of the textual clues in that definition cut
against such a broad construction.
First, the statute specifies that “ ‘agency or instrumen
tality . . .’ means any entity” matching three specified
characteristics, §1603(b) (emphasis added), and “entity”
typically refers to an organization, rather than an individ
ual. See, e.g., Black’s Law Dictionary 612 (9th ed. 2009).
Furthermore, several of the required characteristics apply
awkwardly, if at all, to individuals. The phrase “separate
legal person, corporate or otherwise,” §1603(b)(1), could
conceivably refer to a natural person, solely by virtue of
the word “person.” But the phrase “separate legal person”
typically refers to the legal fiction that allows an entity to
hold personhood separate from the natural persons who
are its shareholders or officers. Cf. First Nat. City Bank v.
Banco Para el Comercio Exterior de Cuba, 462 U. S. 611,
625 (1983) (“Separate legal personality has been described
as ‘an almost indispensable aspect of the public corpora
tion’ ”). It is similarly awkward to refer to a person as an
“organ” of the foreign state. See §1603(b)(2). And the
third part of the definition could not be applied at all to a
natural person. A natural person cannot be a citizen of a
State “as defined in section 1332(c) and (e),” §1603(b)(3),
because those subsections refer to the citizenship of corpo
rations and estates. Nor can a natural person be “created
under the laws of any third country.” Ibid.8 Thus, the
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8 Petitioner points out that §1603(b)(3) describes only which defen
dants cannot be agencies or instrumentalities. He suggests that it
therefore tells us nothing about which defendants can be covered by
that term. Brief for Petitioner 46. Even if so, reading §1603(b) as
petitioner suggests would leave us with the odd result that a corpora
tion that is the citizen of a state is excluded from the definition under
§1603(b)(3), and thus not immune, whereas a natural person who is the
citizen of a state is not excluded, and thus retains his immunity.
10 SAMANTAR v. YOUSUF
Opinion of the Court
terms Congress chose simply do not evidence the intent to
include individual officials within the meaning of “agency
or instrumentality.”9 Cf. Dole Food Co. v. Patrickson, 538
U. S. 468, 474 (2003) (describing §1603(b) as containing
“indicia that Congress had corporate formalities in mind”).
Petitioner proposes a second textual route to including
an official within the meaning of “foreign state.” He ar
gues that the definition of “foreign state” in §1603(a) sets
out a nonexhaustive list that “includes” political subdivi
sions and agencies or instrumentalities but is not so lim
ited. See Brief for Petitioner 22–23. It is true that use of
the word “include” can signal that the list that follows is
meant to be illustrative rather than exhaustive.10 And, to
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9 Nor does anything in the legislative history suggest that Congress
intended the term “agency or instrumentality” to include individuals.
On the contrary, the legislative history, like the statute, speaks in
terms of entities. See, e.g., H. R. Rep. No. 94–1487, p. 15 (1976) (here
inafter H. R. Rep.) (“The first criterion, that the entity be a separate
legal person, is intended to include a corporation, association, founda
tion, or any other entity which, under the law of the foreign state where
it was created, can sue or be sued in its own name”).
JUSTICE SCALIA may well be correct that it is not strictly necessary to
confirm our reading of the statutory text by consulting the legislative
history, see post, at 1–2 (opinion concurring in judgment). But as the
Court explained some years ago in an opinion authored by Justice
White:
“As for the propriety of using legislative history at all, common sense
suggests that inquiry benefits from reviewing additional information
rather than ignoring it. As Chief Justice Marshall put it, ‘[w]here the
mind labours to discover the design of the legislature, it seizes every
thing from which aid can be derived.’ United States v. Fisher, 2 Cranch
358, 386 (1805). Legislative history materials are not generally so
misleading that jurists should never employ them in a good-faith effort
to discern legislative intent. Our precedents demonstrate that the
Court’s practice of utilizing legislative history reaches well into its past.
See, e.g., Wallace v. Parker, 6 Pet. 680, 687–690 (1832). We suspect
that the practice will likewise reach well into the future.” Wisconsin
Public Intervenor v. Mortier, 501 U. S. 597, 611–612, n. 4 (1991) (altera
tion in original).
10 See 2A N. Singer & J. Singer, Sutherland Statutory Construction
Cite as: 560 U. S. ____ (2010) 11
Opinion of the Court
be sure, there are fewer textual clues within §1603(a) than
within §1603(b) from which to interpret Congress’ silence
regarding foreign officials. But even if the list in §1603(a)
is merely illustrative, it still suggests that “foreign state”
does not encompass officials, because the types of defen
dants listed are all entities. See Russell Motor Car Co. v.
United States, 261 U. S. 514, 519 (1923) (“[A] word may be
known by the company it keeps”).
Moreover, elsewhere in the FSIA Congress expressly
mentioned officials when it wished to count their acts as
equivalent to those of the foreign state, which suggests
that officials are not included within the unadorned term
“foreign state.” Cf. Kimbrough v. United States, 552 U. S.
85, 103 (2007) (“Drawing meaning from silence is particu
larly inappropriate . . . [when] Congress has shown that it
knows how to [address an issue] in express terms”). For
example, Congress provided an exception from the general
grant of immunity for cases in which “money damages are
sought against a foreign state” for an injury in the United
States “caused by the tortious act or omission of that
foreign state or of any official or employee of that foreign
state while acting within the scope of his office.”
§1605(a)(5) (emphasis added). The same reference to
officials is made in a similar, later enacted exception. See
28 U. S. C. A. §1605A(a)(1) (Supp. 2009) (eliminating
immunity for suits “in which money damages are sought
against a foreign state” for certain acts “engaged in by an
official, employee, or agent of such foreign state while
acting within the scope of his or her office, employment, or
agency”); see also §1605A(c) (creating a cause of action
against the “foreign state” and “any official, employee, or
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§47.7, p. 305 (7th ed. 2007) (“[T]he word ‘includes’ is usually a term of
enlargement, and not of limitation” (some internal quotation marks
omitted)).
12 SAMANTAR v. YOUSUF
Opinion of the Court
agent” thereof).11 If the term “foreign state” by definition
includes an individual acting within the scope of his office,
the phrase “or of any official or employee . . .” in 28
U. S. C. §1605(a)(5) would be unnecessary. See Dole Food
Co., 538 U. S., at 476–477 (“[W]e should not construe the
statute in a manner that is strained and, at the same
time, would render a statutory term superfluous”).
Other provisions of the statute also point away from
reading “foreign state” to include foreign officials. Con
gress made no express mention of service of process on
individuals in §1608(a), which governs service upon a
foreign state or political subdivision. Although some of the
methods listed could be used to serve individuals—for
example, by delivery “in accordance with an applicable
international convention,” §1608(a)(2)—the methods
specified are at best very roundabout ways of serving an
individual official. Furthermore, Congress made specific
remedial choices for different types of defendants. See
§1606 (allowing punitive damages for an agency or in
strumentality but not for a foreign state); §1610 (affording
a plaintiff greater rights to attach the property of an
agency or instrumentality as compared to the property of a
foreign state). By adopting petitioner’s reading of “foreign
state,” we would subject claims against officials to the
more limited remedies available in suits against states,
——————
11 Petitioner argues that §1605A abrogates immunity for certain acts
by individual officials, which would be superfluous if the officials were
not otherwise immune. See Brief for Petitioner 41–43. But the import
of §1605A is precisely the opposite. First, §1605A(a)(1) eliminates the
immunity of the state for certain acts of its officers; it says a “foreign
state shall not be immune” in a suit “in which money damages are
sought against a foreign state.” As it does not expressly refer to the
immunity of individual officers, it adds nothing to petitioner’s argu
ment. Second, the creation of a cause of action against both the “for
eign state” and “any official, employee, or agent” thereof, §1605A(c),
reinforces the idea that “foreign state” does not by definition include
foreign officials.
Cite as: 560 U. S. ____ (2010) 13
Opinion of the Court
without so much as a whisper from Congress on the sub
ject. (And if we were instead to adopt petitioner’s other
textual argument, we would subject those claims to the
different, more expansive, remedial scheme for agencies).
The Act’s careful calibration of remedies among the listed
types of defendants suggests that Congress did not mean
to cover other types of defendants never mentioned in the
text.
In sum, “[w]e do not . . . construe statutory phrases in
isolation; we read statutes as a whole.” United States v.
Morton, 467 U. S. 822, 828 (1984). Reading the FSIA as a
whole, there is nothing to suggest we should read “foreign
state” in §1603(a) to include an official acting on behalf of
the foreign state, and much to indicate that this meaning
was not what Congress enacted.12 The text does not ex
pressly foreclose petitioner’s reading, but it supports the
view of respondents and the United States that the Act
does not address an official’s claim to immunity.
IV
Petitioner argues that the FSIA is best read to cover his
claim to immunity because of its history and purpose. As
discussed at the outset, one of the primary purposes of the
FSIA was to codify the restrictive theory of sovereign
immunity, which Congress recognized as consistent with
extant international law. See §1602. We have observed
——————
12 Nor is it the case that the FSIA’s “legislative history does not even
hint of an intent to exclude individual officials,” Chuidian, 912 F. 2d, at
1101. The legislative history makes clear that Congress did not intend
the FSIA to address position-based individual immunities such as
diplomatic and consular immunity. H. R. Rep., at 12 (“The bill is not
intended . . . . to affect either diplomatic or consular immunity”). It also
suggests that general “official immunity” is something separate from
the subject of the bill. See id., at 23 (“The bill does not attempt to deal
with questions of discovery. . . . [I]f a plaintiff sought to depose a
diplomat in the United States or a high-ranking official of a foreign
government, diplomatic and official immunity would apply”).
14 SAMANTAR v. YOUSUF
Opinion of the Court
that a related purpose was “codification of international
law at the time of the FSIA’s enactment,” Permanent
Mission of India to United Nations v. City of New York,
551 U. S. 193, 199 (2007), and have examined the relevant
common law and international practice when interpreting
the Act, id., at 200–201. Because of this relationship
between the Act and the common law that it codified,
petitioner argues that we should construe the FSIA con
sistently with the common law regarding individual im
munity, which—in petitioner’s view—was coextensive with
the law of state immunity and always immunized a for
eign official for acts taken on behalf of the foreign state.
Even reading the Act in light of Congress’ purpose of
codifying state sovereign immunity, however, we do not
think that the Act codified the common law with respect to
the immunity of individual officials.
The canon of construction that statutes should be inter
preted consistently with the common law helps us inter
pret a statute that clearly covers a field formerly governed
by the common law.13 But the canon does not help us to
decide the antecedent question whether, when a statute’s
coverage is ambiguous, Congress intended the statute to
govern a particular field—in this case, whether Congress
intended the FSIA to supersede the common law of official
immunity.14
——————
13 Congress “is understood to legislate against a background of com
mon-law . . . principles,” Astoria Fed. Sav. & Loan Assn. v. Solimino,
501 U. S. 104, 108 (1991), and when a statute covers an issue previ
ously governed by the common law, we interpret the statute with the
presumption that Congress intended to retain the substance of the
common law. See Isbrandtsen Co. v. Johnson, 343 U. S. 779, 783 (1952)
(“Statutes which invade the common law . . . are to be read with a
presumption favoring the retention of long-established and familiar
principles, except when a statutory purpose to the contrary is evident”).
14 We find similarly inapposite petitioner’s invocation of the canon
that a statute should be interpreted in compliance with international
law, see Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804),
Cite as: 560 U. S. ____ (2010) 15
Opinion of the Court
Petitioner argues that because state and official immu
nities are coextensive, Congress must have codified official
immunity when it codified state immunity. See Brief for
Petitioner 26–30. But the relationship between a state’s
immunity and an official’s immunity is more complicated
than petitioner suggests, although we need not and do not
resolve the dispute among the parties as to the precise
scope of an official’s immunity at common law. The very
authority to which petitioner points us, and which we have
previously found instructive, see, e.g., Permanent Mission,
551 U. S., at 200, states that the immunity of individual
officials is subject to a caveat not applicable to any of the
other entities or persons15 to which the foreign state’s
immunity extends. The Restatement provides that the
“immunity of a foreign state . . . extends to . . . any other
public minister, official, or agent of the state with respect
to acts performed in his official capacity if the effect of
exercising jurisdiction would be to enforce a rule of law
against the state.” Restatement §66 (emphasis added).16
——————
and his argument that foreign relations and the reciprocal protection of
United States officials abroad would be undermined if we do not adopt
his reading of the Act. Because we are not deciding that the FSIA bars
petitioner’s immunity but rather that the Act does not address the
question, we need not determine whether declining to afford immunity
to petitioner would be consistent with international law.
15 The Restatement does not apply this caveat to the head of state,
head of government, or foreign minister. See Restatement §66.
Whether petitioner may be entitled to head of state immunity, or any
other immunity, under the common law is a question we leave open for
remand. See 552 F. 3d 371, 383 (CA4 2009). We express no view on
whether Restatement §66 correctly sets out the scope of the common
law immunity applicable to current or former foreign officials.
16 Respondents contend that this caveat refers to “the compulsive
effect of the judgment on the state,” Brief for Respondents 42, but
petitioner disputes that meaning, Reply Brief for Petitioner 17–18. We
need not resolve their dispute, as it is enough for present purposes that
the Restatement indicates a foreign official’s immunity may turn upon
a requirement not applicable to any other type of defendant.
16 SAMANTAR v. YOUSUF
Opinion of the Court
And historically, the Government sometimes suggested
immunity under the common law for individual officials
even when the foreign state did not qualify. See, e.g.,
Greenspan v. Crosbie, No. 74 Civ. 4734 (GLG), 1976 WL
841 (SDNY, Nov. 23, 1976). There is therefore little rea
son to presume that when Congress set out to codify state
immunity, it must also have, sub silentio, intended to
codify official immunity.
Petitioner urges that a suit against an official must
always be equivalent to a suit against the state because
acts taken by a state official on behalf of a state are acts of
the state. See Brief for Petitioner 26. We have recog
nized, in the context of the act of state doctrine, that an
official’s acts can be considered the acts of the foreign
state, and that “the courts of one country will not sit in
judgment” of those acts when done within the territory of
the foreign state. See Underhill v. Hernandez, 168 U. S.
250, 252, 254 (1897). Although the act of state doctrine is
distinct from immunity, and instead “provides foreign
states with a substantive defense on the merits,” Altmann,
541 U. S., at 700, we do not doubt that in some circum
stances the immunity of the foreign state extends to an
individual for acts taken in his official capacity. But it
does not follow from this premise that Congress intended
to codify that immunity in the FSIA. It hardly furthers
Congress’ purpose of “clarifying the rules that judges
should apply in resolving sovereign immunity claims,” id.,
at 699, to lump individual officials in with foreign states
without so much as a word spelling out how and when
individual officials are covered.17
——————
17 The courts of appeals have had to develop, in the complete absence
of any statutory text, rules governing when an official is entitled to
immunity under the FSIA. For example, Courts of Appeals have
applied the rule that foreign sovereign immunity extends to an individ
ual official “for acts committed in his official capacity” but not to “an
official who acts beyond the scope of his authority.” Chuidian, 912
Cite as: 560 U. S. ____ (2010) 17
Opinion of the Court
Petitioner would have a stronger case if there were any
indication that Congress’ intent to enact a comprehensive
solution for suits against states extended to suits against
individual officials. But to the extent Congress contem
plated the Act’s effect upon officials at all, the evidence
points in the opposite direction. As we have already men
tioned, the legislative history points toward an intent to
leave official immunity outside the scope of the Act. See
n. 12, supra. And although questions of official immunity
did arise in the pre-FSIA period, they were few and far
between.18 The immunity of officials simply was not the
particular problem to which Congress was responding
when it enacted the FSIA. The FSIA was adopted, rather,
to address “a modern world where foreign state enter
prises are every day participants in commercial activities,”
and to assure litigants that decisions regarding claims
against states and their enterprises “are made on purely
legal grounds.” H. R. Rep., at 7. We have been given no
reason to believe that Congress saw as a problem, or
wanted to eliminate, the State Department’s role in de
terminations regarding individual official immunity.19
——————
F. 2d, at 1103, 1106. That may be correct as a matter of common-law
principles, but it does not derive from any clarification or codification
by Congress. Furthermore, if Congress intended the FSIA to reach
individuals, one would expect the Act to have addressed whether former
officials are covered, an issue it settled with respect to instrumentali
ties, see Dole Food Co. v. Patrickson, 538 U. S. 468, 478 (2003)
(“[I]nstrumentality status [must] be determined at the time suit is
filed”).
18 A study that attempted to gather all of the State Department deci
sions related to sovereign immunity from the adoption of the restrictive
theory in 1952 to the enactment of the FSIA reveals only four decisions
related to official immunity, and two related to head of state immunity,
out of a total of 110 decisions. Sovereign Immunity Decisions of the
Dept. of State, May 1952 to Jan. 1977 (M. Sandler, D. Vagts, & B.
Ristau eds.), in Digest of U. S. Practice in Int’l Law 1020, 1080 (1977)
(hereinafter Digest).
19 The FSIA was introduced in accordance with the recommendation
18 SAMANTAR v. YOUSUF
Opinion of the Court
Finally, our reading of the FSIA will not “in effect make
the statute optional,” as some Courts of Appeals have
feared, by allowing litigants through “artful pleading . . .
to take advantage of the Act’s provisions or, alternatively,
choose to proceed under the old common law,” Chuidian v.
Philippine Nat. Bank, 912 F. 2d 1095, 1102 (CA9 1990).
Even if a suit is not governed by the Act, it may still be
barred by foreign sovereign immunity under the common
law. And not every suit can successfully be pleaded
against an individual official alone.20 Even when a plain
tiff names only a foreign official, it may be the case that
the foreign state itself, its political subdivision, or an
agency or instrumentality is a required party, because
——————
of the State Department. H. R. Rep., at 6. The Department sought and
supported the elimination of its role with respect to claims against
foreign states and their agencies or instrumentalities. See Hearings on
H. R. 11315 before the Subcommittee on Administrative Law and
Governmental Relations of the House of Representatives Committee on
the Judiciary, 94th Cong., 2d Sess., 34 (1976) (testimony of Monroe
Leigh, Legal Adviser, Dept. of State) (“[I]t is our judgment . . . that the
advantages of having a judicial determination greatly outweigh the
advantage of being able to intervene in a lawsuit”). But the Depart
ment has from the time of the FSIA’s enactment understood the Act to
leave intact the Department’s role in official immunity cases. See
Digest 1020 (“These decisions [of the Department regarding the immu
nity of officials] may be of some future significance, because the Foreign
Sovereign Immunities Act does not deal with the immunity of individ
ual officials, but only that of foreign states and their political subdivi
sions, agencies and instrumentalities”).
20 Furthermore, a plaintiff seeking to sue a foreign official will not be
able to rely on the Act’s service of process and jurisdictional provisions.
Thus, a plaintiff will have to establish that the district court has
personal jurisdiction over an official without the benefit of the FSIA
provision that makes personal jurisdiction over a foreign state auto
matic when an exception to immunity applies and service of process has
been accomplished in accordance with 28 U. S. C. §1608. See §1330(b)
(“Personal jurisdiction over a foreign state shall exist as to every claim
for relief over which the district courts have jurisdiction under subsec
tion (a),” i.e., claims for which the foreign state is not entitled to immu
nity, “where service has been made under section 1608 of this title”).
Cite as: 560 U. S. ____ (2010) 19
Opinion of the Court
that party has “an interest relating to the subject of the
action” and “disposing of the action in the person’s absence
may . . . as a practical matter impair or impede the per
son’s ability to protect the interest.” Fed. Rule Civ. Proc.
19(a)(1)(B). If this is the case, and the entity is immune
from suit under the FSIA, the district court may have to
dismiss the suit, regardless of whether the official is im
mune or not under the common law. See Republic of
Philippines v. Pimentel, 553 U. S. 851, 867 (2008)
(“[W]here sovereign immunity is asserted, and the claims
of the sovereign are not frivolous, dismissal of the action
must be ordered where there is a potential for injury to
the interests of the absent sovereign”). Or it may be the
case that some actions against an official in his official
capacity should be treated as actions against the foreign
state itself, as the state is the real party in interest. Cf.
Kentucky v. Graham, 473 U. S. 159, 166 (1985) (“[A]n
official-capacity suit is, in all respects other than name, to
be treated as a suit against the entity. It is not a suit
against the official personally, for the real party in inter
est is the entity” (citation omitted)).
We are thus not persuaded that our construction of the
statute’s text should be affected by the risk that plaintiffs
may use artful pleading to attempt to select between
application of the FSIA or the common law. And we think
this case, in which respondents have sued petitioner in his
personal capacity and seek damages from his own pockets,
is properly governed by the common law because it is not a
claim against a foreign state as the Act defines that term.
Although Congress clearly intended to supersede the
common-law regime for claims against foreign states, we
find nothing in the statute’s origin or aims to indicate that
Congress similarly wanted to codify the law of foreign
official immunity.
20 SAMANTAR v. YOUSUF
Opinion of the Court
V
Our review of the text, purpose, and history of the FSIA
leads us to the conclusion that the Court of Appeals cor
rectly held the FSIA does not govern petitioner’s claim of
immunity. The Act therefore did not deprive the District
Court of subject-matter jurisdiction. We emphasize, how
ever, the narrowness of our holding. Whether petitioner
may be entitled to immunity under the common law, and
whether he may have other valid defenses to the grave
charges against him, are matters to be addressed in the
first instance by the District Court on remand. The judg
ment of the Court of Appeals is affirmed, and the case is
remanded for further proceedings consistent with this
opinion.
It is so ordered.
Cite as: 560 U. S. ____ (2010) 1
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–1555
_________________
MOHAMED ALI SAMANTAR, PETITIONER v. BASHE
ABDI YOUSUF ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 1, 2010]
JUSTICE ALITO, concurring.
I join the opinion of the Court, although I think that the
citations to legislative history are of little if any value
here.
Cite as: 560 U. S. ____ (2010) 1
Opinion of THOMAS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–1555
_________________
MOHAMED ALI SAMANTAR, PETITIONER v. BASHE
ABDI YOUSUF ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 1, 2010]
JUSTICE THOMAS, concurring in part and concurring in
the judgment.
I join the Court’s opinion except for those parts relying
on the legislative history of the Foreign Sovereign Immu
nities Act of 1976, 28 U. S. C. §§1330, 1602, et seq. In my
view, the Court’s textual analysis is sufficient to re-
solve this case. See post, at 1–4 (SCALIA, J., concurring in
judgment).
Cite as: 560 U. S. ____ (2010) 1
SCALIA, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–1555
_________________
MOHAMED ALI SAMANTAR, PETITIONER v. BASHE
ABDI YOUSUF ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 1, 2010]
JUSTICE SCALIA, concurring in the judgment.
The Court’s admirably careful textual analysis, ante, at
7–13, demonstrates that the term “foreign state” in the
provision “a foreign state shall be immune from the juris
diction of the courts of the United States and of the
States,” 28 U. S. C. §1604, does not include foreign offi
cials. Yet the Court insists on adding legislative history to
its analysis. I could understand that (though not agree
with it) if, in the absence of supposed legislative-history
support, the Court would reach a different result. Or even
if there was something in the legislative history that
clearly contradicted the Court’s result, and had to be
explained away. That is not the situation here (or at least
the Court’s opinion does not think it to be so). The Court
assures us, however (if this could be thought assurance),
that legislative history is “ ‘not generally so misleading’ ”
that it should “ ‘never’ ” be used. Ante, at 10, n. 9 (quoting
Wisconsin Public Intervenor v. Mortier, 501 U. S. 597,
611–612, n. 4 (1991)). Surely that is damning by faint
praise. And the Court’s mention of the past practice of
using legislative history, ante, at 10, n. 9, does not support
the Court’s use of it today. The past practice was “not the
practice of using legislative history for the purpose of
giving authoritative content to the meaning of a statutory
text,” Mortier, supra, at 622 (SCALIA, J., concurring in
2 SAMANTAR v. YOUSUF
SCALIA, J., concurring in judgment
judgment).
The Court’s introduction of legislative history serves no
purpose except needlessly to inject into the opinion a mode
of analysis that not all of the Justices consider valid. And
it does so, to boot, in a fashion that does not isolate the
superfluous legislative history in a section that those of us
who disagree categorically with its use, or at least dis
agree with its superfluous use, can decline to join. I there
fore do not join the opinion, and concur only in the result.
The Court relies on legislative history to support three
of its positions. First, after explaining why the phrase
“agency or instrumentality” in the definition of “foreign
state,” see §1603(a), (b), does not refer to natural persons,
ante, at 9–10, the Court says “[n]or does anything in the
legislative history suggest that Congress intended the
term ‘agency or instrumentality’ to include individuals,”
ante, at 10, n. 9. According to the Court, “the legislative
history, like the statute, speaks in terms of entities.” Ibid.
Apparently, the legislative history must be consulted, not
to show that it supports the Court’s textual analysis, or
even to explain why its seeming contradiction of the
Court’s analysis is inconsequential, but to show nothing
more than that it contains the same ambiguous language
as the text. This is beyond all reason.
Second, after concluding its review of the statute’s text,
the Court states that the “legislative history makes clear
that Congress did not intend the [Foreign Sovereign Im
munities Act of 1976] to address position-based individual
immunities such as diplomatic and consular immunity,”
ante, at 13, n. 12. See also ante, at 17. It cites for this
proposition a House Committee Report that we have no
reason to believe was read (much less approved) by the
Senate—or, indeed, by the Members of the House who
were not on the Committee—or even, for that matter, by
the members of the Committee, who never voted on the
Report. In any case, the quoted excerpt does not address
Cite as: 560 U. S. ____ (2010) 3
SCALIA, J., concurring in judgment
“position-based individual immunities” in general but only
“consular and diplomatic immunity,” which is not at issue
here. Unless consular and diplomatic immunity, on the
one hand, and, on the other hand, what is at issue here—
state-agent immunity—are always treated the same
(which I doubt and the Court does not attempt to estab
lish), the passage contributes nothing to analysis of the
present case.
The same footnote also quotes a portion of the same
House Report as follows:
“ ‘The bill does not attempt to deal with questions of
discovery. . . . [I]f a plaintiff sought to depose a diplo
mat in the United States or a high-ranking official of
a foreign government, diplomatic and official immu
nity would apply.’ ” Ante, at 13, n. 12.
If anything, this passage cuts against the Court’s result.
The two sentences omitted from the above quotation read
as follows:
“Existing law appears to be adequate in this area. For
example, if a private plaintiff sought the production of
sensitive governmental documents of a foreign state,
concepts of governmental privilege would apply.”
H. R. Rep. No. 94–1487, p. 23 (1976).
Thus, the House Report makes it clear that the bill’s
failure to deal with discovery applies to both discovery
against sovereigns and discovery against foreign officials.
But the latter would have been unnecessary if the bill
dealt only with sovereigns. The implication (if any) is that
the bill’s provisions regarding immunity from suit apply to
both sovereigns and foreign officials.
Third, and finally, the Court points to legislative history
to establish the purpose of the statute. See ante, at 17,
and n. 19. This is particularly puzzling, because the en
acted statutory text itself includes findings and a declara
4 SAMANTAR v. YOUSUF
SCALIA, J., concurring in judgment
tion of purpose—the very same purpose (surprise!) that
the Court finds evidenced in the legislative history. See
28 U. S. C. §1602. To make matters worse, the Court
itself notes this statutory declaration of purpose twice
earlier, in the body of its opinion, see ante, at 6, 13. If
those textual references to the statute itself were deleted,
the footnoted citation of legislative history would at least
perform some function. As it is, however, it adds nothing
except the demonstration of assiduous law-clerk research.
It should be no cause for wonder that, upon careful
examination, all of the opinion’s excerpts from legislative
history turn out to be, at best, nonprobative or entirely
duplicative of text. After all, legislative history is almost
never the real reason for the Court’s decision—and make
weights do not deserve a lot of the Court’s time.