*1 v. FIRST NATIONAL CITY BANK BANCO NACIONAL CUBA de No. Argued 70-295. February 22, 1972 Decided June *2 judgment delivered J., and the Court’s Rehnquist, announced Doug- joined. J., J., White, and opinion in C. Burger, an which post, result, p. 770. concurring opinion in the J., filed an las, post, judgment, p. concurring in J., opinion filed an Powell, Stewart, in which J., dissenting opinion filed a Brennan, 773. post, joined, p. 776. JJ., Blackmun, and Marshall, for briefs and filed the cause argued Henry Harfield petitioner. respondent. the cause for argued
Victor Rabinovñtz Boudin. Leonard B. brief was him on the With a memorandum filed General Griswold Solicitor reversal. urging curiae as amicus the United States Rehnquist judgment announced MR. Justice which The Chief opinion delivered an Court, and join. and Mr. Justice White Justice million July $15 loaned the sum 1958, petitioner In The loan was secured respondent. predecessor to a bonds. of United States Government pledge mil- $5 and following year, loan was renewed the million balance renewed for repaid, $10 lion was was portion to the value of the year, equal one and collateral repaid by petitioner. was released January 1, 1959,
Meanwhile, govern- Castro power September 16, 1960, ment came to in Cuba. On pursuant militia, allegedly Cuban decrees the Castro seized government, all of the branches of petitioner located Cuba. A week later the bank retaliated selling collateral securing loan, proceeds and applying to repayment sale principal unpaid and interest. Petitioner concedes above $1.8 that an excess of at least million over and realized from the sale principal unpaid interest was Respondent in the petitioner collateral. sued excess, peti- Federal District Court to recover this way of tioner, setoff and asserted the counterclaim, expropriation recover a result of the right damages property Cuba. recognized The District our decision in Court Banco de v. Nacional Cuba 376 U. S. (1964), holding generally the courts of one nation will in judgment not sit on the acts of another nation territory within its own would bar the assertion of the counterclaim, but further held congressional since the decision in Sabbatino enactments had “for *3 practical all purposes” overruled that case. Following summary in judgment favor of the in petitioner the Dis- trict Court on except by all issues the amount which the proceeds of the sale of collateral exceeded the amount that properly could applied by peti- loan tioner, parties stipulated that event this dif- ference was less than the damages petitioner that could prove support expropriation its claim if that claim were allowed. Petitioner any recovery then waived on its counterclaim over and above the amount recoverable by respondent its complaint, and the District Court then rendered judgment dismissing respondent’s com- plaint on the merits. appeal,
On
the Court of Appeals for the Second Cir-
cuit held
that
congressional enactments
relied
upon by the District Court did not govern
case,
this
and that our decision in Sabbatino barred the as-
petitioner’s
sertion of
counterclaim. We granted cer-
tiorari and vacated the judgment of the Court Appeals
for consideration of the
Department
views
State which had been furnished to us following the filing
petition
for certiorari.
We this taken position between difference stantial took in which it Executive Branch case petitioner prevents doctrine of state the act We hold on the merits. counterclaim litigating from it does not. the act of both enunciating of cases separate lines common immunity doctrines have a sovereign state and M’Fad Exchange v. The Schooner in the case of source don, There Chief Justice (1812). Cranch im sovereign principle stated the general Marshall ex munity: presumed without sovereigns are opened their tribunals to suits plicit declaration to have cоnsiderations policy Yet the against sovereigns. other part are in principle large at the root of this fundamental of the act of state doctrine. The underpinnings also Chief observed: Justice opinion
“The which arguments favor of this inability general have been drawn from the judicial power to enforce its decisions in cases of description, consideration, from the sovereign power the nation is alone competent avenge wrongs committed a sovereign, that *4 questions wrongs give to which such birth are rather questions law, policy than they are for of of diplomatic, rather than legal discussion, are great of weight, and merit serious attention.” (Emphasis added.) both
Thus, of state and sovereign immunity judicially doctrines are created to effectuate general no- comity tions of and among nations among the respective branches of the Federal Government. The history and
763 legal basis of the act of state are treated doctrine comprehensively opinion the Court’s supra. The Court there cited Chief “clas Justice Fuller’s sic American in Under doctrine, statement” found Hernandez, hill v. (1897): S. 250, U.
“Every sovereign respect is bound to the in- State dependence every other sovereign State, courts on country of one will not sit judgment acts of the government another done within its territory. own Redress reasоn of grievances by such acts must be obtained through open means to be sovereign powers availed of as between themselves.”
The represents act of doctrine exception an general rule that a court States, United where appropriate jurisdictional standards are will met, decide cases it by before choosing the appropriate rules for de- cision from among various sources law inter- including national The Paquete law. Habana, (1900). U. S. precludes any doctrine review whatever of the acts of the government of one sovereign State done within its own territory by courts another sovereign State. It is clear, from however, history both and the opinions of this Court that the doctrine is not an inflexible one. Specifically, the Court in Sabbatino described the act of state doctrine principle as “a of decision binding on fed- eral and state courts alike compelled but by neither law nor the Constitution,” 376 U. and then continued: continuing vitality
“[I]ts depends capacity on its to reflect the proper distribution functions between the branches of the Government matters bearing upon foreign af- Id., fairs.” at 427-428. *5 Government, of this Sabbatino, Branch Executive
In the at- State, advised Department through speaking described the Court which amici in a vein for torneys Depart- more than no to reflect “intended being as bearing any statement to make wish not then ment’s Id., States 420. The United litigation.” Court Sabbatino that this Court before argued silence that executive time, first “hold, should not to execu- equivalent doctrine of state the act regarding act.” foreign into the inquiry judicial approval tive has Branch Executive us, the In now' before the case Adviser Legal The position. different quite taken a Novem this Court on advised Department State where the principle as matter 17, 1970, ber a the act of state publicly the Court Executive advises proceed Court should applied, need not be doctrine raised a legal to examine the issues any other territory as it would within its own sovereign decision before it. His letter refers to the legal question Nederlandsche in Bernstein v. N. V. court below Amerikaansche, rep (CA2 2d 375 1954), F. principle, of such a resenting recognition was not applicability principle suggests Bernstein letter limited to the case. The Adviser’s Legal goes then on to state:
“The act of Department of believes that the State state bar consider- applied doctrine should not be against ation of or defendant’s counterclaim set-off of Cuba in this or like cases.” Government question that whether we must now decide is so-called Bernstein doctrine exception to the act before recognized should the context of the facts In Court. the Court said: upon
“This pass Court has never had occasion the so-called Bernstein nor need it do so exception, now.” 376 U. at 420. *6 doctrine,
The of immunity like doctrine of for has its foreign sovereigns, roots, not in the Constitu- comity but tion, independent the notion of between supra, City sovereigns. National 438; China, Republic Bank v. S. 356 The (1955); 348 U. of Exchange M’Faddon, 7 (1812).1 Schooner v. Cranch 116 It by is also deference buttressed to the exclu- power sive the Executive over conduct of relations other sovereign powers power to the Senate advise and consent the making of treaties. The presented by issues invocation quite are therefore Miller, to dissimilar those v. Zschernig raised 389 U. S. 429 (1968), where the Court an struck down Oregon statute that was held to be by “an intrusion the State into the field of foreign affairs which the Constitution entrusts to the Id., President and Congress.” at 432.
The line of cases from this Court establishing the act of state justifies doctrine its existence primarily on the juridical basis that review acts of state of a foreign power could embarrass the conduct foreign relations political branches of the government. Court’s opinion in Underhill Hernandez, v. (1897), U. S. 250 stressed the fact revolutionary government of Venezuela had been recognized by the United States. case, speaking In the latter sovereign immunity, Chief Justice Marshall said:
“It Court, seems then to the be principle public law, that ships war, nationаl entering port friendy power open of a their reception, are to be exempted by considered as consent of power jurisdiction. from its doubt, sovereign “Without place capable destroying of the is implication. may He jurisdiction claim and exercise either employing force, or subjecting ordinary such vessels to the tri- power bunals. But until such be exerted in a manner misunderstood, the sovereign cannot be considered having im- parted ordinary to the jurisdiction, tribunals a which it would be Cranch, breach of faith to exercise.” 7 at 145-146. Co., 297, 302 246 U. S. Leather Central Oetjen v. In explicit: was the Court (1918), of our Gov- foreign relations “The conduct Ex- to the by the Constitution committed ernment is political’ Departments Legislative ecutive — —'the may of what propriety and the Government, power is not of this in the exercise be done It has ... or decision. judicial inquiry subject sovereign, is the 'Who specifically decided been territory judicial, not a facto, de of a jure de or *7 of determination question, the political but is a departments and executive legislative the which as conclusively judges, the binds any government of that subjects officers, citizens and other of well as all ”.’.. government. is (1937), Belmont, U. S. 324 v. United States of competence the exclusive emphasized another case that A affairs.2 foreign field Branch the of Executivе the Curtiss-Wright States v. Court in United year earlier, the ap- quoted had with 304, (1936), 299 U. S. Corp., a he was when of Marshall the statement John proval with this dealing Representatives of of the House member subject: same
“ the nation organ sole ‘The President is the representative sole and its relations, its external ” with nations.’ in Luther v. James L. opinion Scrutton, J., Sagor & Co., [1921] 3 K. B. described Sabbatino the doctrine articulating “classic case” as a cases,” of the United States “in terms not unlike those English doctrine under strongly suggests that distributed, is not but power external affairs over “Governmental respect exclusively government. And in in the national is vested authority here, speak as the Executive had was done of what S., at 330. government." 301 U. organ sole by representation Executive may to the courts waive the application of the doctrine: appears
“But a serious breach of international if a comity, state is a recognized as inde- sovereign pendent state, postulate legislation its 'contrary justice principles to essential and moral- ity.’ an might Such well with allegation suscep- tible foreign government become a casus belli; my should in view be action the Sovereign through his and not of judges ministers, reference to state which their Sovereign has recog- . nized. . . The responsibility recognition or non- recognition consequences of each rests оn the Sovereign advisers and not Id., judges.” at 559. think
We foregoing examination cases indicates that Court recognized primacy has of the Executive in the of foreign quite conduct relations emphatically as it has recognized the act of state doctrine. The Court in Sabbatino throughout opin- emphasized ion the lead role of in foreign the Executive *8 particularly policy, in seeking redress for American na- tionals who had been victims of foreign expropria- the tion, and concluded that exception to the act of state doctrine based aon mere neutrality silence or on of part the the Executive might well lead ato conflict between and the Executive Judicial Here, Branches. however, the Executive Branch expressly has stated an application inflexible of the by act of state doctrine this Court would not serve the interests of American for- policy. eign
The act of state is grounded judicial doctrine con- cern application of of customary principles law judge to the acts of a foreign sovereign might frustrate the conduct foreign of by relations the branches Execu- where the conclude that We the government.
of responsibility with primary Branch, charged tive expressly represents foreign affairs, of for the conduct doctrine of the act of aрplication the Court that to pol- of foreign American the interests would not advance In courts. applied by not be the doctrine should icy, that so-called approve adopt so we of doing, course be-We of state doctrine. Bernstein to the act exception application of more than an lieve to no be this of the reason maxim that classical common-law “[t]he Dic- (Black’s Law law ceases” ceasing, law itself also 1951)). tionary (4th ed. judi- an abdication is in no sense holding
Our
The
Branch.
cial function to the Executive
case,
extends
power of the United
States
for
jurisdictional
by Congress
standards established
adjudication by the
have been met by
federal courts
by
the case
parties.
deciding
The
reason for
principles
would be the
applicable legal
use
otherwise
by
legal
judiciary
fear that
interpretation
territory
a foreign sovereign
might
within its own
frus-
country’s foreign
trate
relations.
the conduct of this
responsible
But
government
the branch
has
us that
conduct
those
relations
advised
need
in this case.
consequence
such a
feared
not be
judiciary
with-
is therefore
the case
free
decide
imposed
out
that would
the limitations
otherwise
judicially
upon it
act of state doctrine.
created
It
noting
bears
result we reach is consonant
principles
with the
set forth
the Court in
equity
City
Republic
China,
National
Bank v.
“We have our law invoking fairly but which resisting against a claim it would recovery. curtail It our wants law, like other law but wants our free from litigant, to justice. therefore, claims of It vital, becomes examine the extent to which the considerations which led a sover- against this Court to bar a suit here in The Exchange applicable Schooner are eign according a from determining, foreclose court Republic of China’s prevailing whether the law, be Bank against claim would City National unjustly legitimate claims disregarding enforced against Republic expounded As China. im- Exchange, The Schooner doctrine one plied exempt consent the territorial sovereign abso- foreign sovereign from its 'exclusive and lute’ from jurisdiction, implication deriving public standards of morality, dealing, reciprocal fair ‘power respect self-interest, dignity’ for the Id., foreign sovereign.” 361-362. cases doctrine, as reflected lim- culminating judicially accepted is a аdjudicative courts, itation on processes the normal from springing thoroughly principle sound that occasion litigants may individual have to decision forgo on the merits of their claims because the involvement of the courts in a decision con- such frustrate the might foreign policy. wholly duct of the Nation’s It would be to insist such illogical rule, fashioned because adjudication of fear would con- interfere with the foreign relations, applied duct of face of an assur- ance from that branch Federal Government conducts relations that such result would not *10 adjudication the courts to holding confines
obtain. Our the Executive to and leaves them, before of the case doing, In so relations. the conduct of Branch powers of separation principle to it is both faithful the act applying cases earlier and consistent with representation we lacked the sort state doctrine where in this case. we have the Executive Branch that from the Court judgment of We therefore reverse the it for consideration the case Appeals, remand judgment attack on the respondent’s alternative bases of of the District Court. and remanded.
Reversed in the result. Douglas, concurring Mr. Justice de Cuba v. Banco Nacional 376 U. S. present issue in the case. does not control the central Republic Bank City National v. Rather, it is governed China, 348 356. U. S. premise (pеtitioner) I start from defendant present Court. litigation properly is the District brought suit, purposes who our Respondent, sovereign Cuba; apart state of cases where and, from another nation war with it is States, is at the United settled that are in the sovereign states allowed sue Nacional de courts of the United States. See Banco Sabbatino, supra, Cuba v. at 408-410.
Cuba sues here to recover the difference between a by petitioner loan made proceeds and the of a sale of the collateral securing allegedly loan. excess is $1.8 about million. Petitioner to set off sought against that amount claims arising peti- out confiscation of properties. tioner’s Cuban How much those setoffs would be, we do not know. The District Court ruled the amount of these setoffs “cannot be determined motions,” Supp. these 270 F. 1004, 1011, saying that represented they “triable issues of fact and law.” Ibid. and affirm the Appeals I the Court of would reverse the case for trial on Court, remanding District I up would amount of setoff and allow setoff claim. respondent’s the amount Republic China It was ruled in the case may cut sovereign’s claim down a counterclaim *11 or be setoff. 348 U. at 364. The setoff need not subject “based in the matter” the claim asserted fair strict sense. The test is “the consideration of deal- Id., ing.” at 365. The said: Court dealing “The short of the arе not matter is we to a attempt bring recognized foreign govern- with an ment into one our courts as defendant and sub- ject it the rule of law which nongovernmental to to obligors must bow. We have a foreign government our law but invoking resisting against a claim it fairly which recovery. would curtail its It wants any law, our like other but it wants our law litigant, free justice. from the claims of It vital, becomes therefore, to examine the extent to which the con- siderations which led this Court bar a suit against sovereign in The Schooner Exchange Cranch [7 applicable are here to 116] foreclose a court from determining, according to prevailing law, whether Republic of China’s claim against National City Bank would be enforced disregard- unjustly ing legitimate against Republic claims of China. expounded As in The Exchange, Schooner the doc- trine is one implied consent the territorial sovereign exempt the foreign from sovereign its 'exclusive and absolute’ jurisdiction, the implication from deriving public standards of morality, fair dealing, reciprocal self-interest, and respect for the 'power and dignity’ of the Id., foreign sovereign.” at 361-362. if one of nations sensibilities offend
It would courthouse door had our us, not at war country, if Cuba offend our sensibilities It would also to it. closed col- liquidation owed on the amount could collect required to account loan and not for the lateral more would recovery without To allow any setoff. Fair deal- cake and eat too. permit Cuba to have of the setoff to amount allowance ing requires precept brought which suit is the claim on —a rational decision. satisfy should so-called claim, exceeds the asserted If the amount setoff a Sabbatino type of case. There then we would have controversy proceeds sugar was the which the fund Sabbatino held Cuba had the issue nationalized. “political claimant was a rightful ques- who was the tion,” as its resolution would result ideological political clashes between nations which must be re- solved the other of government.1 branches We type would have that controversy if, here *12 extent that, the setoff asserted exceeds the amount I Cuba’s claim. would disallow the resolu- tion of for the reasons stated in Sabbatino dispute and Mr. Justice Brennan in the instant case. As he states, the Executive Branch “cannot simple stip- ulation change a question into a cognizable I claim.” But would allow the setoff to the extent of the claim asserted Cuba because Cuba is the one who asks our judicial aid in collecting its debt from petitioner Republic as and, China says, case “fair dealing” requires recognition of counterclaim or setoff that eliminates or reduces that claim.2 It
1 A histоric instance of the resolution of such a conflict ulti mately by judicial enforced sanctions is United Pink, States v. 315 U. S. 203. 2 Republic Cf. Pons v. Cuba, 111 U. App. S. D. 141, C. 294 F. 2d 925. Bernstein3 which principle, exception, a should the Court becomes govern Otherwise, here. mere boy may errand which Executive Branch pick people’s fire, choose to some from chestnuts but not others’.4
Mr.
Powell,
concurring
Justice
the judgment.
I
judgment
concur in the
of reversal
Although
my
by Mr.
expressed
from
remand,
reasons differ
those
Douglas.
Rehnquist
While
Justice
and Mr. Justice
de
Banco Nacional
Cuba v.
376 U. S.
technically
(1964),
question
419-420
reserves the
N. V.
exception (Bernstein
the Bernstein
v.
validity
Nederlandsche-Amerikaansche,
(CA2 1954),
2d 375
F.
Mr.
Brennan
opinion,
*13
v.
Nederlandsche-Amerikaansche,
Bernstein N. V.
4 history “The of the doctrine indicates that is its function not to judicial unquestioning Executive, effect deference the but diplomatic judicial achieve a result under which rather than chan disposition in sovereigns.” nels are used the of controversies between Delson, The Act of State Doctrine—Judicial Deference Absten or (1972). 66 tion? Am. J. L. Int’l over power concepts. concerns the court’s ferent One of appropriateness the the other concerns the parties; Although subject judicial for matter resolution. I reaches, he by justness of the result attracted Douglas’ support theory find little Justice Mr. no further justiciable up counterclaim is but to, than, point of setoff. I nevertheless of judgment concur the Court
because I believe that the broad Sabbatino holding compelled by was not principles, expressed therein, as which underlie the act state doctrine. As Mr. Justice Sabbatino, Harlan stated state doctrine not either dictated “international law the Con- [or] but stitution,” judgment proper is based on a as to “the distribution of functions between the and the political branches of the Government on bearing matters upon S., foreign affairs.” 376 at Moreover, U. 427-428. as noted in there nowas intention of “laying down or an reaffirming inflexible and all-encompassing Id., rule . . . .” at 428.
I do disagree with these with the principles, way broad in which applied Sabbatino Had I them. been member of the Sabbatino I Court, probably would joined have the dissenting opinion Justice Mr. The balancing of White. recognized interests, ap- propriate by Sabbatino, requires a careful examination facts each case and of the position, any, if taken branches government. I do not agree, however, that balancing the functions of the holding was “that Judicial Branch will not examine the validity taking of a property within its territory by own foreign sovereign government, recognized extant and country suit, treaty at time the absence a or unambiguous other agreement regarding controlling legal principles, even if the com plaint alleges taking customary violates law.” 376 U. 428. *14 compels political branches
judiciary and those of the all cases in which judiciary acting to eschew validity expropriation under underlying issue is the customary would be an international law. Such result judiciary’s persons abdication to responsibility grievances who seek to resolve their process. I separation powers
Nor do think the doctrine of dic- tates such an abdication. To argue so is to assume that is no such thing there as international law but inter- political only by national disputes that can be resolved power. Admittedly, the exercise of international legal disputes are separable politics not as from domestic are I disputes, but legal prepared say am not interna- may law applied by tional never be determined and judiciary where “act there has been an of state.” Un- til tribunals command a wider constitu- ency, the courts of various countries afford best means for the development respected body of a inter- national hope law. There less for progress is area if long-neglected disputes the resolution of all in- volving an “act of state” relegated political is rather judicial processes. than appears
Unless it jurisdiction that an exercise of would interfere with delicate relations conducted I branches, conclude fеderal courts dissenting opinion Sabbatino, citing Mr. Justice White’s cases England, Netherlands, Germany, Japan, Italy, France, from states: country rigid civilized
“No other has found such a rule [as necessary announced the survival of the executive Sabbatino'] government; government branch of executive of no other require adjudications seems to such insulation from international law courts; judiciary apparently incompetent in its and no other is so apply (footnote ascertain international law.” 376 U. at 440 omitted). view This cases such as this. to hear obligation
have an of the act notion basic inconsistent roles balancing requires which state doctrine *15 branches. When political and the of the judiciary I exists, in those roles believe conflict is shown as the Court because, should defer judiciary the dispute one Sabbatino, resolution of in the suggested may potential outweighed the be the judiciary branches. multiple disputes by of resolution been shown, such conflict has In this case where no apply determine and duty I think courts have a to I in join applicable law. therefore for further decision to remand case Court’s proceedings.
Mr. whom Mr. Brennan, Justice Justice Mr. Marshall, Mr. and Justice Stewart, Justice Blackmun join, dissenting. today
The
of
judgment
Court
reverses the
the Court
en-
Appeals
of
for
Circuit which declined to
the Second
exception upon
“Bernstein”
graft
the so-called
the act
of
expounded
state doctrine as
in Banco Nacional de
Court,
Cuba v.
376
S. 398 (1964).1
U.
doctrine,
1“The classic American statement
the act
of state
early
appears
England
which
to have taken root in
as 1674 . .
.
began
emerge
jurisprudence
country in the
and
in the
of this
eighteenth
early
centuries,
late
found in Under
nineteenth
...
is
Hernandez,
[1897],
hill v.
Fuller
Mr. *16 primarily, state doctrine exists perhaps and even solely, judicial as a aid to to the Executive avoid embarrassment to the branch in the conduct of foreign rela- (1954), where the Appeals Court of for the Second Circuit allowed plaintiff challenge validity expropriation of the of his property Germany Nazi Acting Legal view of a letter from the Department Adviser of the of State to the effect: “ policy Executive, respect ‘The to claims asserted (or property United States for the restitution of identifiable thereof) compensation through force, coercion, in lieu lost or duress persecution Germany, aas result of Nazi is to relieve American upon jurisdiction courts from restraint the exercise of their ” pass validity upon Id., of the acts of Nazi officials.' 376. only exception successfully applied “Bernstein” has been once. Appeals case,
As the noted in this 442 F. 2d Court (1971): exceedingly exception Bernstein has been an narrow one.
“[T]he case, only present ‘Bernstein letter’ hаs been issued Prior to the Moreover, the case has never once—in the Bernstein case itself. only twice, successfully; upon it has been relied been followed instances, by decisions were in both of those lower courts whose subsequently reversed.” expressly
tions. Where the indicates that Executive will domestic promote invocation the rule not opinion policy view, adopting his interests, states the “Bernstein” does not the doctrine exception, that apply. This to conclusion— syllogism premise —from all More- is, with mechanical and fallacious. respect, responsi- over, require it would us to our abdicate bility act doctrine to define the contours of the state so in the judiciary that does not become embroiled politics damage relations to the not rule of courts and Executive but of the law. Rehnquist’s sup- finds opinion also Justice
Me. for its result in National port Bank, City Jus- Mr. Douglas authority remand on would case tice In view, dealing” requires alone. his that a “[f]air foreign sovereign suing subject setoffs, our courts even though counterclaims barred act of are state doctrine for amounts claim. exceeding state’s I City National Bank is not believe in point, at all Douglas’ my and that Brother view leads strange to the application result doctrine de- pends upon the dollar value of litigant’s counterclaim.
Finally, acknowledges that Sab Mr. Justice Powell batino, Bank, National City case, controls this but, nonetheless, votes to remand that Sabb the ground aino was wrongly my decided. In view, nothing has *17 years intervened in the eight since that put decision to its authority into question.
I September On and 17, 1960, 16 the Government of Cuba nationalized the branch petitioner officesof in Cuba. Petitioner promptly responded by selling collateral that had previously been in pledged security for a loan it had made to a Cuban instrumentality. Respondent—
779 by petitioner to Gov alleged agent be an Cuban turn, ernment 2—in instituted this to recover the action excess of the of proceeds the sale over the accrued interest principal of the loan.3 Petitioner then counter claimed for value properties, of its Cuban alleging they that inter expropriated had been in violation of summary national law.4 On cross-motions for judgment, 2 Court, judgment, The summary District cross-motions for respondent found be to “one and the same” the Govern Supp. 1004, (1967). Respondent argues ment of Cuba. 270 F. relationship that fact that disputed with Cuba was a issue of properly issue, could not be This not decided resolved before trial. (1970), Appeals, 2d is neces Court of see 431 F. sarily open for consideration on remand. complaint of is pleaded also second cause action not material to the issues us. before actually first, Petitioner asserts two counterclaims— and, sec damages, expropriation invalid, giving rise to Cuban was regardless of the petitioner, to ond, that Cuba became indebted Moreover, invokes validity petitioner expropriation decree. support in law well as international Cuban United States as petitioner. are no avail to claims. These refinements both course, doctrine, bars consideration If applicable, the act of state in Sabbatim claims; although the Court law both examine Branch will not holding in terms that “the Judicial stated its territory by a validity its own taking property within of a (emphasis S., at 428 sovereign government 376 U. foreign clearly review not added), holding embraced adequate, and effective “prompt, taking obligation make but of the Id., id., 433. 429. at compensation.” at See also cognizable claims Similarly, petitioner’s do allegations not courts that United States Cuban affirmed under law. Sabbatino foreign of state validity of a judgment will not sit in on the only be exceed- inquiry foreign law, for such an “would under likely highly ingly but, wrongly made, would be difficult if Id., The same question.” 415 n. 17. offensive to the state entitled to applies petitioner’s assertion rationale of ac- Although causes Cuban compensation under law. may, course, appropriate circumstances tion bе entertained dangers as the courts, presents the same our the claim issue In law. invalidity expropriation Cuban claim of under *18 780 petitioner held that “is entitled to set- Court
the District claim for relief amounts [respondent's] off against as the Cuban owing due and to from Government properties.” the confiscation Cuban reason of [its] Appeals 1011 Supp. 1004, (1967). 270 F. Court for the Circuit reversed on the that the act ground Second Sabbatino, in doctrine, applied ju as forecloses dicial review of the nationalization of petitioner’s branch F. offices. 2d 394 (1970).5 431 petition While a to Court pending was for a writ of certiorari, the Legal Adviser of the Department of State advised us that act of state doctrine should event, the Court ibid., as indicated in if Cuban law governs, test applied to be is the petitioner’s success claims in seriously would receive Cuba itself. It cannot be contended that Cuban petitioner’s courts would hold the proper- nationalization of ties invalid or Cuba petitioner meaningful compensa- liable for Indeed, although tion. 24 Art. of the Fundamental Law of provides compensation Cuba public takings,. for certain Cuban 851, pursuant Law petitioner’s No. to which properties were nationalized, itself 6 declares in Art. . resolutions . . “[t]he expropriation proceedings may forced instituted hereunder appealed, not be as no remedial action shall be there available against.” Moreover, promise compensation provided under may, Law Sabbatino, id., 402, No. 851 as the Court said “well illusory.” be deemed
Finally, public- United States law becomes relevant if policy-of-the-forum exception the lex loci conflict-of-laws rule is, recognized free, if the American because forum is —that public deny recognition policy, to Cuban law otherwise applicable property the law as of the situs seized. But the very purpose application of the act of state doctrine is to forbid g., Today: e. exception. generally, Henkin, See Act State Tranquility, (1967). Recollections 6 J. of 175 Colum. Transnat’l L. Sabbatino, supra, See also at 438. conclusion, arriving inapplicable In at this the court found 1961, Foreign Hickenlooper Amendment to the Act of Assistance amended, (e)(2). agree S. C. I Stat. U. §2370 my leaving colleagues that determination undisturbed. *19 counterclaims consideration of to bar applied not be particularly, More of this case. the circumstances Adviser stated:6 Legal events, appropriate make view, in our
“Recent Department State determination when it applied need not be act of state doctrine or setoff adjudication bar of a counterclaim raised to from a claim arises state’s (a) when when relationship pаrties existing between the of the relief (b) the amount occurred; act of the foreign is limited to the amount granted interests claim; (c) policy state’s and the foreign [to require application do not United States
the doctrine.
“In claim arose case, government’s this the Cuban from the defendant banking relationship expropriation at the time the existing state — of defendant’s Cuban and de- property occurred, — fendant’s counterclaim is limited to the amount of the Cuban government’s find, claim. We more- over, that the foreign policy interests of the United require States do not application of the act of state doctrine adjudication validity to bar of a or against defendant’s counterclaim set-off Government of Cuba in these circumstances. Department
“The of State believes that the act of state doctrine applied not be should to bar con- sideration of a defendant’s counterclaim or set-off against the Government of Cuba this or like cases.”
We granted certiorari, vacated the judgment of the Court of Appeals, and, without expressing views on the
6 Legal The text of the Adviser’s appears views in full in 442 2d, F. at 536-538. in light for reconsideration case,
merits of the
remanded
Department position by
State.
statement
Appeals
(1971).
remand the Court of
On
U. S.
decision, 442 F. 2d
(1971),
to its
original
adhered
granted certiorari,
(1971).
we
II opinion joined The of Mr. Rehnquist, Justice states White, Chief Justice Justice Mr. reason for not deciding the case “[t]he legal principles use of otherwise applicable would be *20 interpretation by the legal judiciary fear that territory the act of a within its foreign sovereign own country’s frustrate might the conduct this foreign relations.” Even if were a description this correct the rationale for the doctrine, act of state the con- clusion that the reason for the rule ceases when Executive, here, requests that doctrine not be applied plainly does not In Sabbatino follow. Court length reviewed judicial the risks of review of a foreign expropriation possible terms preju- dice to the conduct our external affairs. The Court there explained, 376 U. at 432-433:
“If the Executive Branch undertaken negotia- has tions with an expropriating country, but has re- frained from claims of violation of the law of nations, a determination to by that effect a court might be regarded as a serious insult, while a finding of compliance with international would law, greatly strengthen the bargaining hand of the other state with consequent detriment to American interests.
“Even if the Department State proclaimed has the impropriety of the expropriation, the stamp approval of its judicial view tribunal, however impartial, might increase аffront and might decision occur at time, almost always well be impact would such an when taking,. after the Considerably interest. contrary to our national would consequences far-reaching more serious and law judicial finding flow from a determination flew met if that standards had been Department proclamation in the face of a State way In contrary. short, ... whatever of conflict between cut, possibility matter is hardly could Judicial and Executive Branches avoided.” Executive may apply
This where the reasoning expressly policy domestic interests stipulates foreign will not be however the court decides the impaired validity expropriation. But definition those cases can arise where the branch is reached, surely indifferent to the result and that is not the case before The protested us. United States has nationalization of property belonging Cuba to Amer- ican citizens as a violation of international law. The United States diplomatic has also severed relations with that government. very Legal terms Adviser’s communication to this Court, moreover, anticipate a favorable ruling the Cuban expropriation peti- *21 tioner’s properties was invalid.7 Legal The Adviser states:
“Recent events, view, in appropriate our make a determination by Department the of State that need act оf state doctrine applied not be cases of this .... [in kind] great “The expropriations by 1960’s have seen a increase in foreign governments property belonging to United States citi- Many corporations properties expropriated, zens. whose are finan- example, cial institutions for are vulnerable to suits in our courts by foreign governments plaintiff [s], purpose recovering as for the deposits taking or sums them in owed the United States without expro- into account the institutions’ their assets counterclaims for country.” priated foreign in the Legal implication
The is clear that Adviser believes that such why explained Sabbatino itself these circumstances remov- representations Executive favor of cannot ing act of state bar be followed: “It highly validity questionable whether examination judiciary depend should on an educated guess probable any rate, Executive as to and, result should a prediction be the Executive be wrong, might embar- Id,., dealings rassed in its with other countries.” at 436. Appeals Should Court of uphold remand expropriation Cuban case, the Government would be embarrassed but would find ef- its extensive property forts to secure the of United States citizens seriously abroad compromised.8 Nor it be argued can that this risk is insubstantial be- cause the petitioner’s substantive law controlling claims is clеar. Court in Sabbatino observed that “[t]here are few if issues in today law on which opinion seems to be so divided as the limitations on a power state’s to expropriate the property Id., of aliens.” corporations offsetting are entitled to for redress their value of property. Note, nationalized 557, 12 Harv. Int’l L. J. 576-577 (1971). significant It is also past that the Government in the has acknowledged letter,’ “that a ‘Bernstein should one be issued special might circumstances appropriate, plainly where does not seek to decide the question, merely case in but removes of state bar to foreign consideration of the act." Brief for Curiae, the United States as Amicus in Banco Nacional de Cuba v. Sabbatino, 1963, p. No. O. T. 38. The Government makes no representation such Note, J., in this case. 12 Harv. Int’l L. at 571 contrary, and n. To the argues: “By 74. the Government now dis- regarding policy involving statement of Executive [the] firms, investment seriously American the court below has re- capacity government stricted the to assist American investors adequate in securing prompt, compensation expro- and effective priation property of American abroad.” Memorandum for the United States Amicus Curiae 3. See 376 U. at 432: “Relations with third countries engaged expropriations which have in similar would not be immune *22 from effect.” more observation, 428.9 if hаs anything,
at And this Sabbatino, respondent force in this than in since case argues with some substance that the Cuban nationaliza- petitioner’s properties, expropriation tion of unlike the Sabbatino, discriminatory issue in against was United States citizens.
Thus, assumption that Adviser’s letter Legal removes possibility of interference with Execu- tive in foreign conduct of is plainly affairs mistaken.
Ill That, however, my is not the crux of disagreement my the “Bernstein” who colleagues uphold would exception. My Brother Rehnquist’s opinion asserts primarily, state doctrine is designed perhaps entirely, even to avoid embarrassment to the Sabbatino, political branch. Even cursory reading of this Court’s most recent and most exhaustive treatment the act state doctrine, belies this contention. Writ- ing majority of eight Mr. Justice Harlan laid bare the foundations of the doctrine fol- id., lows, at 427-428:
“If the act of state doctrine principle a of de- cision binding on federal and state courts alike but compelled by neither international law nor the Con- stitution, its continuing vitality depends on its capacity proper to reflect the distribution of func- tions between branches of the Government on matters upon bearing af- fairs. It apparent should be the greater the degree of codification or consensus concerning a 9 It repeating bears here what the Cоurt said in a footnote this statement, id., at 429 not, n. 26: course, “We do say mean to there is no international standard in area; conglode we only that adjudication matter is not meet for domestic tribunals.” See n. infra. *23 ap- more law, the of international area
particular render decisions judiciary for the it is propriate on the focus can then courts it, since regarding to circumstances principle agreed of an application establish- task of the sensitive than on of fact rather national with the not inconsistent principle ing It is also justice. interest or with law touch of international aspects evident that some than do national nerves sharply on much more an implications of important others; the less relations, the weaker for our issue are exclusivity branches. political in the justification for may also be The balance of relevant considerations perpetrated shifted if the which government longer existence, act of state is no- challenged 1, Bernstein for the supra], case n. [see country may, result, this as a be measur- interest of ably altered.” principles expropriation these to the before
Applying Court, Mr. con- Justice Harlan noted the lack of sensus among power the nations of the world on the of state to take alien property, and stated further country is difficult to imagine the courts of this “[i]t adjudication embarking in an area which touches sensitively practical more ideological goals community Id,., members of the various nations.” at 430. He possible reviewed as well the adverse effects from foreign expropriations review of on the conduct of our affairs, external discussed above, and emphasized powers Executive “to ensure fair id., treatment of nationals,” United States at comparison “[pjiecemeal to the id., dispositions,” 432, that could make: courts
“Following expropriation an significance, the Executive engages diplomacy aimed to assure that compen- who harmed are United citizens are States fairly. Representing all claimants sated country, able, either bilateral or it will often Na- talks, multilateral submission to the United employment po- tions, or of economic sanctions, achieve some degree general litical invalidity title redress. Judicial determinations can, on the other an im- hand, have occasional *24 they depend since on circum- pact, the fortuitous question stance of the property brought being Id., country.” into this at 431.
“When variety possessed one considers the of means country this make secure foreign investment, the persuasive or coercive effect of invalida- tion of expropriation acts of compari- dwindles in Id., son.” at 435.10
Only in view of all these considerations did he conclude, id., 428: Judicial Branch will not validity
“[T]he examine the of a of taking property within own territory by a foreign sovereign government, and recognized extant country this at the time of suit, in the absence treaty of a or other unambiguous agreement regard- ing controlling legal principles, even if the com- plaint alleges that the taking customary violates international law.” short,
In Sabbatino held validity the of a foreign act of state in certain “political is a ques- circumstances 10Mr. Justice Harlan also observed that serious conse “[a]nother quence” of suspending the act of state bar “would be to render un certain in foreign titles commerce, possible consequence with the of altering of flow trade.” 376 U. at 433. See also id., (impact at 437 trade, on flow of though security title, not even sovereign where plaintiff). consideration, This course, does not apply where, here, property exportable seized is not an commodity. not Only one—and in our courts.11 not cognizable tion” those circumstances important necessarily most —of the Executive’s impairment possible concerned were if this factor Even affairs. foreign conduct Adviser’s Legal because of case absent hardly follow it would position, statement judi- not foreclose doctrine should proр- petitioner’s expropriation review of the cial consensus contrary, the absence To the erties. unavailability of rules, the applicable international existence treaty or agreement, other standards from sensitivity Government, the recognition of the Cuban power concerns, and of the issues to national remedy for to effect a fair all United Executive alone point all toward have been harmed citizens who States Ad- “political question.” Legal of a existence purport letter to affect these consider- viser’s does coupled In event, ations at all. when possible of our re- consequences the conduct explored above, compel ap- lations these considerations *25 plication doctrine, of act of notwithstanding the state the Legal suggestion contrary.12 Adviser’s to the The
11
Carr,
Baker
(1962):
186,
369
S.
211-212
Cf.
v.
U.
in
political questions
“Our cases
field
involving foreign
re-
[of
invariably
seem
discriminating analysis
par-
show a
lations]
question posed,
history
in
by
ticular
terms of
management
the
of its
political branches,
judicial
of its susceptibility
handling
in the
light
posture
of its
in
specific case,
nature and
possible
and of the
consequences
judicial
of
action.”
comparison
supra,
in the Bernstein
A
of the facts
case,
1,
n.
with the circumstances
of this case reinforces
this conclusion. As
the Government
itself has acknowledged, Brief for the United States
Sabbatino,
as Amicus
supra,
Curiae in
7,
n.
at 37-38:
to the State
leading
“The
Department’s
circumstances
letter
the Bernstein case were of course
unusual.
governmental
most
The
part
acts there
program
were
of a
against
monstrous
of crimes
humanity;
acts had been
condemned
an international
Branch,
Executive
however
powers
extensive its
in the
area of foreign affairs,
by simple
cannot
stipulation
change
a
question
into
cognizable claim.13
cataclysmic
tribunal after a
caused,
world war which was
at least
in part, by acts such as
litigation,
those involved in the
and the
longer
German State no
existed at the time of
Depart
State
[the]
ment’s
Moreover,
letter.
principle
payment
reparations
government
the successor
already
German
had
imposed,
been
letter,’
the time of the
upon
‘Bernstein
government,
the successor
so that
there
suspension
was no chance that a
of the act
doctrine
negotiation
reparations
would affect the
of a
settlement.”
On
result, though
rationale,
these facts the
not the
in Bernstein
may
See,
g.,
Falk,
defensible.
e. R.
The Status
in Inter
of Law
Society
(1970).
national
407 and n. 12
13My
opinion attempts
Brother
to bolster its re
RehNQuist’s
by drawing
sult
analogy
an
between the act of state doctrine аnd
the rule of
sovereign
deference to the Executive in
areas
immunity
recognition
powers.
That
has itself
rule
subject
g.,
been the
generally,
of much debate and criticism. See
e.
Falk,
Legal
R.
The Role of
Domestic Courts
the International
(1964); Lillich,
Proper
Order 139-169
Role of Domestic
Legal Order,
Courts
the International
11 Va. J. Int’l L.
9-27
(1970);
(1968).
Note, Minn.
L. Rev. 389
See also
any case,
persuasive.
376 U.
at 411 n. 12. The
is not
analogy,
past
Branch in
Executive
When
Judicial
has followed an
suggestion
immunity
foreign government
in behalf
or ac
significant weight
make
corded
to the failure of the Executive to
suggestion,
simply
such a
result has been
either to foreclose
against
government
the claim
or to
consideration of
proceed on the merits of the claim and
other
allow the suit to
Hoffman,
may
See,
g.,
government
defenses the
have.
e. Mexico v.
parte
(1943).-
(1945);
Peru,
Ex
324 U.
791 only interpreter as an accepted of generally and tradi- rules, tional as the courts, but also as an advocate [do] of standards it community desirable for believes and protective nations of national concerns.”14 The “Bernstein" exception, nevertheless, assigns the task of advocacy to the judiciary judgment calling a where on consensus controlling legal principles is absent. Note, Fordham L. (1971). Rev. it Thus, countenances an exchange of roles between the judiciary consideration, may This noted, it be resolves paradox White, Mr. dissenting in Justice saw between the finding Court’s there of an absenee of consensus the interna governing tional rules expropriations and purpose the Court’s to avoid to embarrassment Executive the conduct of external see,” stated, “I fail affairs. to greater he “how embarrassment saying foreign flows from not does violate clear and widely accepted principles saying, of international law than from does, required as the Court that nonexamination and validation are widely subject there accepted principles because are no to which to foreign is, however, act.” 376 at U. 465. no There inconsistency: explicit holding capacity
“The makes reference to the [Sabbatino] customary of domestic courts and not norms. to status of the says appro- All that Sabbatino is that domestic is not court an customary priate apply forum to wherein a rule of international supported law unless that rule is wide consensus least enough parties dispute. embrace to the Such self- may appropriate if is an restraint the forum international sides, competence entrusted but tribunal both the situation impartiality appearance is different for a domestic court. The important is the to the formulation of authoritative law as as actuality impartiality. [consequence] is The that a domestic manfully court, struggles impartiality, however will to achieve adjudica- judgment when able to render an authoritative not be requires it decide the forum state or the tion whether customary is correct about contentions to the content doctrine, in The act the absence of a law. of state decision, acknowledges incapacity rules of agreement on the firm Falk, 12, supra, at courts.” n. 415. of domestic firm insistence contrary Executive, powers.15 separation Sabbatino on the ap- the “Bernstein” adopting consequence both rule of law bring be to would proach into dis- *28 of nations relations at home and here claimant fate the individual Indeed, respect. considerations political subject be to would as change considerations Since those Executive Branch. similarly liti- situated change, surely administrations as obtain likely to even-handed would not gants very case all evident is too This treatment. the act suggestion Adviser’s that Legal us. The before carefully couched not here is apply does state doctrine Govern- only “against the to setoffs applicable in terms supra, at 781— cases,” or see in this like ment of Cuba in its discretion that Executive where the is, finds interests required doctrine is not invocation 12 policy Note, vis-a-vis foreign Cuba. of American In Zschernig v. 562, 557, (1971).16 Int’l L. 572 Harv. J. Miller, struck down an (1968), 389 429 this Court U. S. invasion escheat statute as an unconstitutional Oregon affairs, over power Government’s external National from the did not despite advice Executive law unduly policy. with the of our foreign interfere conduct my there, from what Brother Paraphrasing said Stewart id., at 443 (concurring opinion), we must conclude here:
“Resolution of so fundamental issue [an] [as basic division of functions between the Executive S., 423, See at 376 U. 427-428: “The act of state underpinnings.” doctrine does . . . have And “its 'constitutional’ continuing vitality depends capacity proper on its to reflect the political distribution of functions between the branches bearing upon foreign Government on matters affairs.” may For an of how considerations have affected account Department specific case, Note, a State determination in a see 1607, (1962). L. Harv. Rev. 1610-1611 day vary from cannot and the Judicial Branches] Depart- winds at State day shifting of a Today, told, [judicial we are review ment. with the na- act of does conflict state] id., may.” Tomorrow it See also tional interest. J.). at 434-435 (Douglas, important equal No than fair and treatment less is the of our litigants individual concern decisions respect dispassionate courts opinions command as principle. less for the rule of law. will suffice Nothing Yet the “Bernstein” approach calculated under- mine It is, all, law. after regard Sabbatino said, “sanguine pre- 376 U. supposition that the decisions of the of the world's courts major country capital principal exponent exporting system of the free-enterprise accepted would be as dis- *29 expressions interested legal principle sound by those widely adhering par- different This is ideologies.” “Bernstein” approach, ticularly where, so as under the determination of international is depend law made to g., authorization. E. upon prior political Falk, R. Role of in Domestic Courts Legal International 93-94, Order 136-137 (1964).
Y Rehnquist’s opinion support finds for Justice Mr. reaches National Bank Republic the result in City v. China, 348 U. Doug- S. and Mr. (1955), Justice las bases his decision on City that case alone. National Bank by that, held bringing in courts, suit our a foreign sovereign waives immunity on offsetting counterclaims, whether or not related to the sovereign’s cause action. Nothing that spoke applicability decision to the Rehnquist’s act of My state doctrine. Brother opinion, nevertheless, on language there seizes that a sovereign be held and so should “wants our law” courts our suing vein, In a similar equity. a matter of by it as bound Douglas . . . offend would states that my Brother “[i]t owed the amount if could collect Cuba our sensibilities for to account required . and not on . . claim] [her prin- equitable that any assumption Yet, setoff.” see action, ciples respondent’s are cause relevant by it is no (1962), Note, Harv. L. Rev. petitioner’s equity tips that means clear the balance relief our seeking argued favor. It cannot be of state, act courts on claim does not involve protection has respondent waived the counterclaims. See petitioner’s doctrine in defense to pointed ibid. out Furthermore, Appeals the Court of below, 2d, 535, petitioner seeking 442 F. “is a windfall expense property at the of other” claimants whose Cuba has nationalized. Our Government has blocked Cuban country possible in this use the Foreign assets compensate fairly Claims all Settlement Commission to American nationals who have been harmed ex- Cuban propriations. those Although assets are not now vested in the United States or authorized to be distributed to claimants, they it is reasonable to assume that will be if other efforts at settling claims with Cuba are un- In availing. event, petitioner if prevails here, it will, in effect, preference have secured a over other claimants who were not so fortunate to have had Cuban assets within their reach and whose relief before *30 the Claims Commission. Conversely, if respondent pre- vails, recovery will become a vested asset for fair and ratable distribution to all claimants, including petitioner. 2d, See 431 F. at 403-404.
More important, on National City reliance Bank over- looks the fact that “our law” that respondent in- “wants” cludes the act of state which doctrine, to we have adhered for decades, as precedents on which Sabbatino re- in- 1, supra. As Sabbatino lied demonstrate. See n. dicated, doctrine, “although 376 U. immunity sovereign with a for respect shares doctrine states,” important policies independent serves entirely rule. 13, supra. policies, n. And one See those exception, 10, supra, apply see n. with full force in this Douglas Indeed, as we sеen. case, have Mr. Justice political-ques- concedes as much recognizing that tion rationale of would a preclude judgment Sabbatino petitioner Why for petitioner’s excess Cuba’s claim. premised counterclaims are the less a question they when are stated as not, offsets rationally explained. and cannot be, In Sabbatino itself Court considered “whether plaintiff Cuba’s status a [seeking recover proceeds of it had property expropriated] . . dic- . a result tates at variance with the reached conclusions [requiring application of act of doctrine].” S.,U. at 437. The Court held that it did not, noting sensitivity in regard relations and “[t]he possibility of embarrassment of are, the Executive course, heightened presence of a sovereign plaintiff. The rebuke power to a recognized would be Ibid; pointed more were suitor our courts.” it. id., observed, too, Court at 438: “Certainly the distinction proposed would sanc- tion self-help remedies, hardly something conducive a peaceful international order. Had de- [the proceeds converted property fendant] [the had expropriated] Cuba . . ,. Cuba could have relied on the act of state doctrine defense claim brought ... the proceeds. It would be preclude anomalous to reliance on the act of state doctrine because of unilateral [the ac- defendant’s] tion, justified however such may action have been under the circumstances.” *31 equally applicable together These considerations, here, the act of state general policies underlying with the status doctrine caused the Court to conclude that Cuba’s plaintiff was But the Court went immaterial. determine whether there were remaining litigable “any for determination on remand and held that issues invalidity [against counterclaim based on asserted Cuba] Id., expropriation] must fail.” Sab- 439. [of very batino point my thus answered the on which some of Brethren now did rely- and, the face furthermore, so — Bank, City National as the Court’s discussion of that id., decision in at 438, shows. Justice notes his dissenting the reasoning implicitly rejects excep- of Sabbatino tion. I would be uncomfortable with doc- Moreover, trine the Ex- require judiciary which would to receive permission ecutive’s invoking jurisdiction. before Such a notion, separation the name of the doctrine of very powers, seems to me to with that doctrine. conflict Nor I City Republic do find National Bank v. China, 348 dispositive. U. to be (1955), S. Court there question jurisdiction dealt with the over parties to hear a against counterclaim asserted redress in our seeking courts. Jurisdic- tion not necessarily imply does that a court hear may a counterclaim which non justiciable. would otherwise be justiciability Jurisdiction and are, words, in other dif-