# First National City Bank v. Banco Nacional de Cuba/Concurrence Powell

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Douglas Powell
* Dissenting Opinion Brennan
[p773] MR. JUSTICE POWELL, concurring in the judgment.
Although I concur in the judgment of reversal and remand, my reasons differ from those expressed by MR. JUSTICE REHNQUIST and MR. JUSTICE DOUGLAS. While Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 419-420 (1964), technically reserves the question of the validity of the Bernstein exception (Bernstein v. N.V. Nederlandsche-Amerikaansche, 210 F. 2d 375 (CA2 1954)), as MR. JUSTICE BRENNAN notes in his dissenting opinion, the reasoning of Sabbatino implicitly rejects that exception. Moreover, I would be uncomfortable with a doctrine which would require the judiciary to receive the Executive's permission before invoking its jurisdiction. Such a notion, in the name of the doctrine of separation of powers, seems to me to conflict with that very doctrine.
Nor do I find National City Bank v. Republic of China, 348 U.S. 356 (1955), to be dispositive. The Court there dealt with the question of jurisdiction over the parties to hear a counterclaim asserted against a foreign state seeking redress in our courts. Jurisdiction does not necessarily imply that a court may hear a counterclaim which would otherwise be nonjusticiable. Jurisdiction and justiciability are, in other words, [p774] different concepts. One concerns the court's power over the parties; the other concerns the appropriateness of the subject matter for judicial resolution. Although attracted by the justness of the result he reaches, I find little support for MR. JUSTICE DOUGLAS' theory that the counterclaim is justiciable up to, but no further than, the point of setoff.
I nevertheless concur in the judgment of the Court because I believe that the broad holding of Sabbatino was not compelled by the principles, as expressed therein, which underlie the act of state doctrine. As Mr. Justice Harlan stated in Sabbatino, the act of state doctrine is not dictated either by "international law [or] the Constitution," but is based on a judgment as to "the proper distribution of functions between the judicial and the political branches of the Government on matters bearing upon foreign affairs." 376 U.S., at 427-428. Moreover, as noted in Sabbatino, there was no intention of "laying down or reaffirming an inflexible and all-encompassing rule...." Id., at 428.
I do not disagree with these principles, only with the broad way in which Sabbatino applied them. Had I been a member of the Sabbatino Court, I probable would have joined the dissenting opinion of MR. JUSTICE WHITE. The balancing of interests, recognized as appropriate by Sabbatino, requires a careful examination of the facts in each case and of the position, if any, taken by the political branches of government. I do not agree, however, that balancing the functions of the [p775] judiciary and those of the political branches compels the judiciary to eschew acting in all cases in which the underlying issue is the validity of expropriation under customary international law. Such a result would be an abdication of the judiciary's responsibility to persons who seek to resolve their grievances by the judicial process.
Nor do I think the doctrine of separation of powers dictates such an abdication. To so argue is to assume that there is no such thing as international law but only international political disputes that can be resolved only by the exercise of power. Admittedly, international legal disputes are not as separable from politics as are domestic legal disputes, but I am not prepared to say that international law may never be determined and applied by the judiciary where there has been an "act of state." Until international tribunals command a wider constituency, the courts of various countries afford the best means for the development of a respected body of international law. There is less hope for progress in this long-neglected area if the resolution of all disputes involving an "act of state" is relegated to political rather than judicial processes.
Unless it appears that an exercise of jurisdiction would interfere with delicate foreign relations conducted by the political branches, I conclude that federal courts [p776] have an obligation to hear cases such as this. This view is not inconsistent with the basic notion of the act of state doctrine which requires a balancing of the roles of the judiciary and the political branches. When it is shown that a conflict in those roles exists, I believe that the judiciary should defer because, as the Court suggested in Sabbatino, the resolution of one dispute by the judiciary may be outweighed by the potential resolution of multiple disputes by the political branches.
In this case where no such conflict has been shown, I think the courts have a duty of determine and apply the applicable international law. I therefore join in the Court's decision to remand the case for further proceedings.

## Notes

* ↑ The holding was "that the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates customary international law." 376 U.S., at 428.
* ↑ MR. JUSTICE WHITE's dissenting opinion in Sabbatino, citing cases from England, the Netherlands, Germany, Japan, Italy, and France, states: "No other civilized country has found such a rigid rule [as that announced in Sabbatino] necessary for the survival of the executive branch of its government; the executive of no other government seems to require such insulation from international law adjudications in its courts; and no other judiciary is apparently so incompetent to ascertain and apply international law." 376 U.S., at 440 (footnote omitted).