             Congressional Authority to Modify an
        Executive Agreement Settling Claims Against Iran
Congress has plenary authority to modify or abrogate preexisting executive agreem ents or
  treaties for domestic law purposes, and could thus pass legislation reviving tort claims
 of American hostages and their families against Iran that might be extinguished by an
 executive agreement with Iran.
                                                      November 13, 1980
  MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
   This responds to your request for our opinion whether, if the Presi­
dent enters an executive agreement with Iran settling or extinguishing
the claims of American citizens against Iran, Congress could constitu­
tionally override the agreement with a statute reviving such claims. We
conclude that Congress has the power to do so.
   In our memoranda to you of September 16, 1980, and October 14,
1980, we concluded that the President has the power to enter an
executive agreement with Iran that would settle or extinguish the
claims of American citizens against Iran. It is settled, however, that
Congress may enact legislation modifying or abrogating executive
agreements or treaties. See, e.g.. La Abra Silver Mining Co. v. United
States, 175 U.S. 423, 460 (1899):
          It has been adjudged that Congress by legislation, and
        so far as the people and authorities of the United States
        are concerned, could abrogate a treaty made between this
        country and another country which had been negotiated
        by the President and approved by the Senate. Head
        Money Cases, 112 U.S. 580, 599; Whitney v. Robertson, 124
        U.S. 190, 194; Chinese Exclusion Case, 130 U.S. 581, 600;
        Fong Yue Ting v. United States, 149 U.S. 698, 721.
See also Reid v. Covert, 354 U.S. 1, 18 (1957); Restatement (Second) of
Foreign Relations Law of the United States § 145 (1965) (legislation
supersedes executive agreement as domestic law of the United States,
but does not affect international obligations). The authorities treat the
power of Congress to enact statutes that supersede executive agree­
ments and treaties for purposes of domestic law as a plenary one, not
subject to exceptions based on the President’s broad powers concerning
foreign affairs.
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   In the present context, the prospect is that despite the existence of an
executive agreement settling all claims, Congress might amend the
Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq., to
abrogate the immunity of the government of Iran for tort claims
brought by the hostages or their families. At present, the FSIA codifies
generally accepted international law doctrine that accords a foreign
state immunity for its governmental acts, but not its commercial ones.
See generally H.R. Rep. No. 1487, 94th Cong., 2d Sess. (1976). In
particular, 28 U.S.C. § 1605(a)(2) preserves immunity for tort claims
against foreign states, except for those based on torts occurring in the
United States and not involving a discretionary function. Therefore, to
abrogate a claims settlement, Congress would also except from immu­
nity claims based on injuries suffered in consequence of the seizure of
the American embassy in Iran in November, 1979, and subsequent
detention of persons found there.
   Such an amendment, we believe, would be constitutional, despite its
apparent retroactivity. It appears to be well within Congress’ general
authority to modify or abrogate preexisting executive agreements for
domestic law purposes.1Also, the government of Iran would have no
grounds for objecting to it in the courts of the United States. As we
concluded in our memorandum to you of September 16, 1980, entitled
“Congressional Power To Provide for the Vesting of Iranian Deposits
in Foreign Branches of United States Banks” [p. 265 supra], foreign
states do not enjoy the protection of the Due Process Clause. Finally,
there would appear to be no other pertinent limit on the power of the
federal courts to entertain these claims. Sovereign immunity is an
affirmative defense that does not vitiate a claim but only prevents
recovery. See Restatement, supra, §§ 71-72. Accordingly, it appears that
neither an executive agreement removing the remedy nor a statute
restoring it should affect the validity of the underlying claims. See
Lillich, The Gravel Amendment to the Trade Reform Act of 1974: Con­
gress Checkmates a Presidential Lump Sum Agreement, 69 Am. J. Int. L.
837 (1975).
   Thus, we conclude that there is no legal impediment to an amend­
ment to the FSIA that would abrogate Iran’s sovereign immunity for
these claims, if Congress decides to carve an exception to a policy of
recognizing immunity for governmental acts that the United States has



   1 T he Restatem ent, supra, indicates that although dom estic law would change, international obliga­
tions w ould not, and would remain enforceable by the usual means, such as suspension of reciprocal
obligations and resort to an international forum.

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followed consistently since at least 1952. See House Report, supra, at
7-8. In doing so, Congress could establish a federal cause of action, in
order to avoid the vagaries of state tort law.
                                        John M . H arm on
                                    Assistant Attorney General
                                     Office of Legal Counsel




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