Foreign Governments in Contempt? The Case for Limiting the Contempt Power Under the Foreign Sovereign Immunities Act

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The Foreign Sovereign Immunities Act (FSIA) governs suits against foreign governments in the federal and state courts. The contempt power is a core judicial competency for maintaining efficiency and enforcing orders. As currently enacted, the FSIA does not prohibit use of the contempt power against foreign governments. However, the Act’s structure, the quasi-punitive nature of judicial contempt sanctions and the fact that such sanctions are nearly per se unenforceable under the FSIA’s statutory terms render use of this power inconsistent with the constitutional allocation of the foreign affairs powers. Because contempt sanctions cannot be effectively enforced in FSIA cases, they are reduced to judicial statements of disapproval regarding the conduct of a foreign government. Such statements are the province of the executive branch. This Note argues that the contempt power should be restricted under the FSIA and presents three potential methods for achieving this result: judicial abstention, executive statements of interest and legislative restriction. This proposed restriction will help prevent potential foreign policy complications with only a minimal impact on the historical power of the judiciary and the rights of plaintiffs.