¹ The President declared a national emergency and issuedan executive order blocking Iran's threatened removal ortransfer of all Iranian assets in this country. The UnitedStates and other nations imposed trade sanctions upon Iran.The United States took its case to the International Court ofJustice at the Hague, which declared Iran's actions to be inviolation of international law. Case Concerning UnitedStates Diplomatic and Consular Staff in Tehran (UnitedStates v. Iran), 1980 I.C.J. 200, reprinted in 19 International Legal Materials 553 (1980). Finally, the UnitedStates attempted a military rescue operation that cost severalAmerican lives.

² Declaration of the Government of the Democratic andPopular Republic of Algeria, General Principle B, reprinted in 20 International Legal Materials 224 (1981). See also id.U 11, at 227 (United States agreed to “bar and preclude theprosecution against Iran of any pending or future claim of… a United States national arising out of events occurringbefore the date of the declaration“).

³ Declaration of the Government of the Democratic andPopular Republic of Algeria Concerning the Settlement ofClaims by the Government of the United States of Americaand the Government of the Islamic Republic of Iran, Art. II,Tf 1, reprinted in 20 International Legal Materials 230-31(1981).

⁴ Id.

⁵ Executive Order No. 12283, 46 Fed. Reg. 7927 (1981),reads in full as follows:Non-Prosecution of Claims of Hostages and for Actionsat the United States Embassy and Elsewhere any court within the United States; [c] ordering- thetermination of any previously instituted judicial proceedingsbased upon such claims; and [d] prohibitingthe enforcement of any judicial order issued in thecourse of such proceedings.

1-102. The Attorney General of the United States isauthorized and directed, immediately upon the issuanceof regulations in accordance with Section 1-101, to takeall appropriate measures to notify all appropriate courtsof the existence of this Order and implementing regulationsand the resulting termination of litigation.

1-103. The Secretary of the Treasury is delegated andauthorized to exercise all functions vested in the Presidentby the International Emergency Economic PowersAct (50 U.S.C. 1701 et seq.) to carry out the purpose of this Order.

1-104. This Order shall be effective immediately.

⁶ Other judges in this circuit had previously dismissed theclaims of hostages and their families. Williams v. Iran, Civ.Action No. 79-3295 (D.D.C.), and Lauterbach v. Iran, Civ.Action No. 81-0350 (D.D.C.) (opinion in consolidated cases,June 11, 1981), appeals pending, Nos. 81-1672, 81-1676 (D.C.Cir.); Moeller v. Islamic Republic of Iran, Civ. Action No. 80-1171 (D.D.C. Aug. 5, 1981) (no appeal taken). Two otherdistrict courts have subsequently dismissed actions broughtby former hostages and their families. McKeel v. IslamicRepublic of Iran, Civ. Action No. 81-0931, and consolidatedcase Nos. 81-5108, 81-5109, 81-5274, 81-5482 (C.D.Cal. Nov.20,1981) (dismissing for lack of jurisdiction), appeals pending,Nos. 82-5111, 82-5114, 82-5115, 82-5116, 82-5117 (9thCir. Jan. 8, 1982); Roeder v. Islamic Republic of Iran, Civ.Action No. 81-5410 (C.D.Cal. Mar. 8, 1982) (dismissed), appeal pending, No. 82-5417 (9th Cir. Apr. 22, 1982).

⁷ The United States argued in its motion to dismiss beforethe district court that the court lacked subject matter jurisdiction because Congress did not provide for jurisdiction overIran in the FSIA. On appeal, the government argues thatIran's immunity under the FSIA warrants dismissal for failureto state a claim on which relief can be granted. Contrary tothe government's current position, however, and contrary toone possible reading of a statement in Dames & Moore, 453U.S. at 685 (“No one would suggest that a determination ofsovereign immunity divests the Federal courts of ‘jurisdiction.” ) , the issue of sovereign immunity is jurisdictional inthat, even though a court's jurisdiction and a party's immunityare conceptually distinct, the FSIA expressly deprives the federalcourts of jurisdiction over any party that is entitled tosovereign immunity. See 28 U.S.C. § 1604 (1976) ; TexasTrading & Milling Corp. v. Federal Republic of Nigeria, 647F.2d 300 (2d Cir. 1981); cf. Tuck v. Pan American HealthOrganization, 668 F.2d 547, 549 (D.C. Cir. 1981) (immunityissue must be addressed before merits). We discuss the issuebelow.

⁸ That fundamental precept is embodied in Fed. R. Civ. P.12(h): “Whenever it appears by suggestion of the partiesor otherwise that the court lacks jurisdiction of the subjectmatter, the court shall dismiss the action.”

⁹ Appellants stress the difference in the terminology employedin Executive Order No. 12294, dealing with commercialclaims, which “suspended” all claims that could be presentedto an Iran-United States Claims Tribunal for arbitration.Awards of that Tribunal are to be final, but any claim theTribunal refuses to consider as not within its jurisdiction willrevive for disposition in courts. Thus, this court in AmericanInternational Group, Inc. v. Islamic Republic of Iran, 657 F.2d430, 441 (D.C. Cir. 1981), construing Executive Order No.12294, stated:

We note that the President did not order the litigationsuspended, or the power of the courts to consider theclaims suspended. Instead, he acted with respect to theclaims only. We read this as an effort to modify not thejurisdiction of the courts, but the substantive rule of lawthey are to apply.

¹⁰ The United States notes, in arguing for a limited interpretation of section 1605(a)(5), that the provision “is directedprimarily at the problem of traffic accidents.” H.R.Rep. No. 1487, 94th Cong., 2d Sess. 20 (1976). But the languageof the section does not admit of a limitation to trafficaccidents; indeed, the House Report relied on by the UnitedStates expressly points out that the section “is cast in generalterms as applying to all tort actions for money damages, nototherwise encompassed by section 1605(a)(2) relating tocommercial activities.” Id. at 20-21.

¹¹ These factors were stressed in the concurring opinionsof Justices Frankfurter, id. at 597-609, Jackson, id. at 637-39,Burton, id. at 656-60, and Clark, id. at 662-66. Even Chief JusticeVinson's opinion for the three dissenters thought it importantto stress that the President had not acted in defianceof a law of Congress. Id. at 701-03. Justice Frankfurter put thematter flatly: “It cannot be contended that the Presidentwould have had power to issue this order had Congress explicitlynegated such authority in formal legislation.” Id. at602. Indeed, President Truman also agreed that Congresscould override his action. Id. at 677.

¹² Congress has questioned particular exercises of the presidentialpower at issue here, see note 16 infra, but never, to ourknowledge, the power itself.

¹³ Section 203 of the IEEPA, 50 U.S.C. § 1702 (Supp. Ill1979), provides in part thatthe President may … nullify, void, prevent or prohibit,any acquisition, holding, withholding, use, transfer, withdrawal,transportation, importation or exportation of, ordealing in, or exercising any right, power, or privilegewith respect to, or transactions involving, any property inwhich any foreign country or a national thereof has anyinterest … by any person, or with respect to any property,subject to the jurisdiction of the United States.In rejecting this provision as direct authority for the President'spower to suspend claims, the Court concluded that“[t]he claims of American citizens against Iran are not inthemselves transactions involving Iranian property or effortsto exercise any rights with respect to such property.” 453U.S. at 675.The Hostage Act directs the President to “use such means,not amounting to acts of war, as he may think necessary andproper to obtain or effectuate the release” of any UnitedStates citizen “unjustly deprived of his liberty by of underthe authority of any foreign government.” The legislativehistory of this statute, according to the Supreme Court, beliedthe argument that it was designed to cover a situation like theIranian hostage crisis. 453 U.S. at 676-77.

¹⁴ Since Congress cannot anticipate every possible action aPresident may need to take in all possible situations, failureto have delegated a particular authority, especially in thefield of foreign policy and national security, does not implydisapproval of action. 453 U.S. at 678 (citing Haig v. Agee,453 U.S. 280,291 (1981)).

¹⁵ In Dames & Moore, the Court quoted with approval the heading of § 213: “ (President 'may waive or settle a claimagainst a foreign state … [even] without the consent of the[injured] national).” 453 U.S. at 680.

¹⁶ The Supreme Court stated in Dames & Moore, 453 U.S. at688 n.13:Contrast congressional reaction to the Iranian Agreementswith congressional reaction to a 1973 ExecutiveAgreement with Czechoslovakia. There the Presidentsought to settle over $105 million in claims against Czechoslovakiafor $20.5 million. Congress quickly demonstrated its displeasure by enacting legislation requiring that theAgreement be renegotiated. [See Lillich, The Gravel Amendment to the Trade Reform Act of 1974, 69 Am. J.Int’l L. 837, 839-40 (1975).]. Though Congress hasshown itself capable of objecting to executive agreements,it has rarely done so and has not done so in thiscase.

¹⁷ We reiterate, lest we be misunderstood, that we arespeaking only of presidential action within a range whereCongress may realistically be said to have given its approval.Nothing said here is intended to suggest a presidential powerto negotiate secretly and to extinguish claims in opposition tothe will of Congress. Convenience and efficiency are not thesole constitutional values in play even in foreign affairs, andwe remain mindful of the admonition that “[t]he doctrine ofthe separation of powers was adopted by the Convention of1787, not to promote efficiency but to preclude the exerciseof arbitrary power. The purpose was, not to avoid friction,but, by means of the inevitable friction incident to the distributionof the governmental powers among three departments,to save the people from autocracy.” Myers v. United States,272 U.S. 52, 293 (1926) (Brandeis, J., dissenting).

¹⁸ Baker v. Carr, 369 U.S. 186, 217 (1962), gives the standardformulation of the political question doctrine:Prominent on the surface of any case held to involve apolitical question is found a textually demonstrable constitutionalcommitment of the issue to a coordinate politicaldepartment; or a lack of judicially discoverable and manageablestandards for resolving it; or the impossibility ofdeciding without an initial policy determination of a kindclearly for nonjudicial discretion; or the impossibility ofa court's undertaking independent resolution without expressinglack of the respect due coordinate branches ofgovernment; or an unusual need for unquestioning adherenceto a political decision already made; or the potentialityof embarrassment from multifarious pronouncementsby various departments on one question.

¹⁹ The Fifth Amendment provides in part: “ [N] or shall private property be taken for public use without just compensation.”U.S. Const, amend. V.

²⁰ We indicate no view on the legal consequences of a takingwhere there is no adequate provision for compensation. SeeHurley v. Kincaid, 285 U.S. 95, 104 & n.3 (1932).

²¹ The Court noted that the “treaty exception” to the jurisdictionof the Court of Claims, 28 U.S.C. § 1502 (1976), wouldnot preclude an action under § 1491 in the Court of Claims,453 U.S. at 689, apparently because that exception coversonly taking claims derived from the treaty (or executiveagreement), not those derived from the Constitution. SeeUnited States v. Weld, 127 U.S. 51, 57 (1888); Note, The Iranian Hostage Agreement Under International and United States Law, 81 Colum. L. Rev. 822, 874-75 (1981).