In addition to finally passing long-delayed and much-needed military aid to Ukraine, the House today also passed the REPO Act. The law authorizes the president to confiscate and transfer $6 billion in Russian government assets currently frozen in the United States to Ukraine to help the country resist Russia's brutal war of aggression.
It is almost certain that the REPO Act will pass in the Senate, and it seems certain that President Biden will sign it and act on it. Although $6 billion is not much compared to the cost of the war, the hope is that this U.S. action will incentivize European allies to confiscate nearly $300 billion of Russian state assets that are currently frozen. .
I've been advocating this idea for a long time, but it's getting outdated. In a November post, I outlined the case, including the argument that the forfeiture violates the Takings Clause of the Fifth Amendment, the sovereign immunity argument, the argument that the forfeiture is unfair to the Russian people, and other concerns. , mentioned a number of opposing views. That would set a bad precedent that discourages foreign investment in the United States.
An excerpt is shown below.
A staggering $300 billion of Russian state assets are frozen in Western countries supporting Ukraine. To put this number in perspective, it is worth noting that total US aid to Ukraine from February 2022 to July 31, 2023 was approximately $77 billion. The European Union, European countries, and Canada contributed about $165 billion during the same period. $300 billion of frozen assets are 2 years At the current pace of spending, total Western aid to Ukraine will…
[I]In the United States, the private property of foreigners is protected from confiscation by the Takings Clause of the Fifth Amendment to the U.S. Constitution, which requires the government to pay “just compensation'' if “private property'' is taken. . Most European countries have similar constitutional protections for private property rights, as well as the European Convention on Human Rights.
However, the Fifth Amendment and its European analogues do not provide similar comprehensive protection for foreign government property. This distinction undermines the argument of some critics that the uncompensated seizure of Russian state assets violates the Expropriation Clause and similar constitutional guarantees in Europe. It also alleviates concerns that confiscation of Russian government assets would create a dangerous slippery situation. The private property rights of foreigners will continue to be protected by constitutional guarantees…
Oona Hathaway claims that confiscation of Russian state assets violates sovereign immunity. I think the Tribe report provides a convincing answer to this argument (pages 60-64).
Furthermore, I am not sure that sovereign immunity is actually a valid principle that we are obligated to abide by. In fact, this is a perversion of justice, allowing rulers to escape responsibility for human rights violations and other wrongdoings. It was a mistake to read that into the U.S. Constitution. It is equally wrong to accept it as a principle of international law. Some laws are so unjust that we are not obliged to obey them. The Sovereign Immunity Act is one example.
At the very least, sovereign immunity should not be granted to authoritarian states like Putin's regime to protect them from having their assets confiscated in order to fight wars of aggression, genocide of civilians, and other massive human rights violations. Such rulers are no more deserving of sovereign immunity than mafia bosses…
