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BLACKMUN, J., dissenting

are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs." Ante, at 572.

Congress legislates in procedural shades of gray not to aggrandize its own power but to allow maximum Executive discretion in the attainment of Congress' legislative goals. Congress could simply impose a substantive prohibition on Executive conduct; it could say that no agency action shall result in the loss of more than 5% of any listed species. Instead, Congress sets forth substantive guidelines and allows the Executive, within certain procedural constraints, to decide how best to effectuate the ultimate goal. See American Power & Light Co. v. SEC, 329 U. S. 90, 105 (1946). The Court never has questioned Congress' authority to impose such procedural constraints on Executive power. Just as Congress does not violate separation of powers by structuring the procedural manner in which the Executive shall carry out the laws, surely the federal courts do not violate separation of powers when, at the very instruction and command of Congress, they enforce these procedures.

To prevent Congress from conferring standing for “procedural injuries” is another way of saying that Congress may not delegate to the courts authority deemed "executive” in nature. Ante, at 577 (Congress may not “transfer from the President to the courts the Chief Executive's most important constitutional duty, to “take Care that the Laws be faithfully executed,' Art. II, $3”). Here Congress seeks not to delegate "executive” power but only to strengthen the procedures it has legislatively mandated. “We have long recognized that the nondelegation doctrine does not prevent Congress from seeking assistance, within proper limits, from its coordinate Branches.” Touby v. United States, 500 U. S. 160, 165 (1991). “Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors.Ibid. (emphasis added).

BLACKMUN, J., dissenting

Ironically, this Court has previously justified a relaxed review of congressional delegation to the Executive on grounds that Congress, in turn, has subjected the exercise of that power to judicial review. INS v. Chadha, 462 U. S. 919, 953– 954, n. 16 (1983); American Power & Light Co. v. SEC, 329 U. S., at 105–106. The Court's intimation today that procedural injuries are not constitutionally cognizable threatens this understanding upon which Congress has undoubtedly relied. In no sense is the Court's suggestion compelled by our “common understanding of what activities are appropriate to legislatures, to executives, and to courts.” Ante, at 560. In my view, it reflects an unseemly solicitude for an expansion of power of the Executive Branch.

It is to be hoped that over time the Court will acknowledge that some classes of procedural duties are so enmeshed with the prevention of a substantive, concrete harm that an individual plaintiff may be able to demonstrate a sufficient likelihood of injury just through the breach of that procedural duty. For example, in the context of the NEPA requirement of environmental-impact statements, this Court has acknowledged "it is now well settled that NEPA itself does not mandate particular results [and] simply prescribes the necessary process,” but “these procedures are almost certain to affect the agency's substantive decision.Robertson v. Methow Valley Citizens Council, 490 U. S., at 350 (emphasis added). See also Andrus v. Sierra Club, 442 U. S. 347, 350-351 (1979) (“If environmental concerns are not interwoven into the fabric of agency planning, the 'actionforcing' characteristics of [the environmental-impact statement requirement] would be lost”). This acknowledgment of an inextricable link between procedural and substantive harm does not reflect improper appellate factfinding. It reflects nothing more than the proper deference owed to the judgment of a coordinate branch-Congress—that certain procedures are directly tied to protection against a substantive harm.

BLACKMUN, J., dissenting

In short, determining “injury” for Article III standing purposes is a fact-specific inquiry. “Typically ... the standing inquiry requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.” Allen v. Wright, 468 U. S., at 752. There may be factual circumstances in which a congressionally imposed procedural requirement is so insubstantially connected to the prevention of a substantive harm that it cannot be said to work any conceivable injury to an individual litigant. But, as a general matter, the courts owe substantial deference to Congress' substantive purpose in imposing a certain procedural requirement. In all events, "[o]ur separation-ofpowers analysis does not turn on the labeling of an activity as 'substantive' as opposed to 'procedural.'” Mistretta v. United States, 488 U. S. 361, 393 (1989). There is no room for a per se rule or presumption excluding injuries labeled “procedural” in nature.

III In conclusion, I cannot join the Court on what amounts to a slash-and-burn expedition through the law of environmental standing. In my view, "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison, 1 Cranch 137, 163 (1803).

I dissent.






No. 91–763. Argued April 1, 1992—Decided June 12, 1992 As part of a plan to stabilize petitioner Argentina's currency, that coun

try and petitioner bank (collectively Argentina) issued bonds, called “Bonods,” which provided for repayment in United States dollars through transfer on the market in one of several locations, including New York City. Concluding that it lacked sufficient foreign exchange to retire the Bonods when they began to mature, Argentina unilaterally extended the time for payment and offered bondholders substitute instruments as a means of rescheduling the debts. Respondent bondholders, two Panamanian corporations and a Swiss bank, declined to accept the rescheduling and insisted on repayment in New York. When Argentina refused, respondents brought this breach-of-contract action in the District Court, which denied Argentina's motion to dismiss. The Court of Appeals affirmed, ruling that the District Court had jurisdiction under the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S. C. $ 1602 et seq., which subjects foreign states to suit in American courts for, inter alia, acts taken “in connection with a commercial activ

ity” that have “a direct effect in the United States,” $ 1605(a)(2). Held: The District Court properly asserted jurisdiction under the FSIA. Pp. 610-620.

(a) The issuance of the Bonods was a "commercial activity” under the FSIA, and the rescheduling of the maturity dates on those instruments was taken “in connection with” that activity within the meaning of $ 1605(a)(2). When a foreign government acts, not as a regulator of a market, but in the manner of a private player within that market, its actions are “commercial” within the meaning of the FSIA. Cf. Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U. S. 682, 695-706 (plurality opinion). Moreover, because $ 1603(d) provides that the commercial character of an act is to be determined by reference to its “nature" rather than its “purpose,” the question is not whether the foreign government is acting with a profit motive or instead with the aim of fulfilling uniquely sovereign objectives. Rather, the issue is whether the government's particular actions (whatever the motive behind them) are the type of actions by which a private party engages in commerce. The Bonods are in almost all respects garden-variety debt instruments,


and, even when they are considered in full context, there is nothing about their issuance that is not analogous to a private commercial transaction. The fact that they were created to help stabilize Argentina's currency is not a valid basis for distinguishing them from ordinary debt instruments, since, under $ 1603(d), it is irrelevant why Argentina participated in the bond market in the manner of a private actor. It matters only that it did so. Pp. 612-617.

(b) The unilateral rescheduling of the Bonods had a “direct effect in the United States” within the meaning of $ 1605(a)(2). Respondents had designated their accounts in New York as the place of payment, and Argentina made some interest payments into those accounts before announcing that it was rescheduling the payments. Because New York was thus the place of performance for Argentina's ultimate contractual obligations, the rescheduling of those obligations necessarily had a "direct effect” in this country: Money that was supposed to have been delivered to a New York bank was not forthcoming. Argentina's suggestion that the "direct effect” requirement cannot be satisfied where the plaintiffs are all foreign corporations with no other connections to this country is untenable under Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 489. Moreover, assuming that a foreign state may be a “person” for purposes of the Due Process Clause of the Fifth Amendment, Argentina satisfied the “minimum contacts” test of International Shoe Co. v. Washington, 326 U. S. 310, 316, by issuing negotiable debt instruments denominated in United States dollars and payable in New

York and by appointing a financial agent in that city. Pp. 617–620. 941 F. 2d 145, affirmed.

SCALIA, J., delivered the opinion for a unanimous Court.

Richard J. Davis argued the cause for petitioners. With him on the briefs were Steven Alan Reiss, Bonnie Garone, and Andreas F. Lowenfeld.

Richard W. Cutler argued the cause for respondents. With him on the brief was Joel I. Klein.

Jeffrey P. Minear argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Douglas Letter, and Edwin D. Williamson.

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