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Is There a Separation of Powers?
A second separation of powers question arises because the State Department has argued that it has the legal power to make immunity determinations that are binding on the courts. The other policy matter, which is super important on foreign official immunity, is to what extent should it track state immunity itself? To what extent should we make Saudi Arabia immune from suit but open up the officials that work for Saudi Arabia to suit? These are important policy considerations that I think it would be super helpful if Congress addressed.