Requirement for Consent

State likely believes that an exemption, by treating the State differently from identically situated private persons, would threaten the objectives of a federal regulatory program aimed primarily at private conduct. Compare, e.g. , 12 U.S.C. §1841(b) (1994 ed., Supp. III) (exempting state companies from regulations covering federal bank holding companies); 15 U.S.C. §77c(a)(2) (exempting state-issued securities from federal securities laws); and 29 U.S.C §652(5) (exempting States from the definition of "employer[s]" subject to federal occupational safety and health laws), with 11 U.S.C. §106(a) (subjecting States to federal bankruptcy court judgments); 15 U.S. C. §1122(a) (subjecting States to suit for violation of Lanham Act); 17 U.S.C. §511(a) (subjecting States to suit for copyright infringement); 35 U.S.C. §271(h) (subjecting States to suit for patent infringement). And a Congress that includes the State not only within its substantive regulatory rules but also (expressly) within a related system of private remedies likely believes that a remedial exemption would similarly threaten that program. See Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, ante , at ___ ( Stevens , J., dissenting). It thereby avoids an enforcement gap which, when allied with the pressures of a competitive marketplace, could place the State's regulated private competitors at a significant disadvantage. These considerations make Congress' need to possess the power to condition entry into the market upon a waiver of sovereign immunity (as "necessary and proper" to the exercise of its commerce power) unusually strong, for to deny Congress that power would deny Congress the power effectively to regulate private conduct. Cf. California v. Taylor , 353 U.S. 553, 566 (1957). At the same time they make a State's need to exercise sovereign immunity unusually weak, for the State is unlikely to have to supply what private firms already supply, nor may it fairly demand special treatment, even to protect the public purse, when it does so. Neither can one easily imagine what the Constitution's founders would have thought about the assertion of sovereign immunity in this special context. These considerations, differing in kind or degree from those that would support a general congressional "abrogation" power, indicate that Parden 's holding is sound, irrespective of this Court's decisions in Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996), and Alden v. Maine, ante , p. ___. [College Savings Bank v. Florida Prepaid Postsecondary Education Expense, 527 U.S. 666 (1999)]

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Under the principles of sovereign immunity, it is internationally and universally recognized by every country and nation 25 and court on earth that every nation or state or individual or group are entitled to sovereign immunity and may only 26 surrender a portion of that sovereignty or natural right over their property by committing one or more acts within a list of 27 specific qualifying acts . Any one of these acts then constitute the equivalent of “constructive or implicit consent” to the 28 jurisdiction of the courts within that forum or state. These qualifying acts include any of the following, which are a 29 summary of those identified in the Foreign Sovereign Immunities Act above: 30

1. Being a statutory “citizen” or “domiciliary” of the Forum or State in question. See 28 U.S.C. §1603(b)(3). 31

An “agency or instrumentality of a foreign state” means any entity — which is neither a citizen of a State of the United States as defined in section 1332 (c) and (d) of this title, nor created under the laws of any third country.

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[28 U.S.C. §1603(b)(3)]

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2. Foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver 35 which the foreign state may purport to effect except in accordance with the terms of the waiver. See 28 U.S.C. 36 §1605(b)(1). 37 3. Commercial Activity within the Forum or State. See 28 U.S.C. §1605(b)(2). 38 3.1. Action based upon a commercial activity carried on in the Forum or State by the foreign state; or 39 3.2. Upon an act performed in the Forum or State in connection with a commercial activity of the foreign state 40 elsewhere; or upon an act outside the territory of the Forum or State in connection with a commercial activity of 41 the foreign state elsewhere and that act causes a direct effect in the Forum or State . 42 4. Rights to property taken in violation of international law. See 28 U.S.C. §1605(b)(3). 43 4.1. Rights in property taken in violation of international law are in issue and that property or any property exchanged 44 for such property is present in the Forum or State in connection with a commercial activity carried on in the 45 Forum or State by the foreign state; or 46 4.2. That property or any property exchanged for such property is owned or operated by an agency or instrumentality 47 of the foreign state and that agency or instrumentality is engaged in a commercial activity in the Forum or State. 48 5. Rights in property in the Forum or State acquired by succession or gift or rights in immovable property situated in the 49 Forum or State are in issue. See 28 U.S.C. §1605(b)(4). 50 6. Money damages for official acts of officials of foreign state which cause injury, death, damage, loss of property in the 51 Forum or State. Not otherwise encompassed in paragraph 3 above in which money damages are sought against a 52 foreign state for personal injury or death, or damage to or loss of property, occurring in the Forum or State and caused 53 by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting 54 within the scope of his office or employment. See 28 U.S.C. §1605(b)(4). Except this paragraph shall not apply to: 55 6.1. any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function 56 regardless of whether the discretion be abused, or 57

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Copyright Sovereignty Education and Defense Ministry, http://sedm.org Form 05.003, Rev. 7-23-2013

EXHIBIT:________