Chas. T. Main International, Inc. (Main) is an engineering firm incorporated in Massachusetts and having its principal place of business in Boston. On November 20, 1979, Main brought suit in the District Court for the District of Massachusetts against the government of Iran and various Iranian governmental entities to obtain payment for services it had rendered in Boston and Iran in connection with certain Iranian electrification projects. Chas. T. Main International, Inc. v. Khuzestan Water & Power Authority, No. 79-2304C (Main v. KWPA ). Main's claims in that case are for services alleged to have been performed under two contracts: one contract called for engineering and consulting services to develop a hydroelectric power plant on Iran's Karun River; this was with Mahab Consulting Engineers (though performed for the benefit of the Khuzestan Water & Power Authority and Iran's Ministry of Energy and Natural Resources). The other contract involved miscellaneous services under a "General Services Agreement" between Mahab and "Parsmain," an "Iranian" corporation partially owned by Main. Main's complaint contains a further allegation that the Central Bank of Iran, now Bank Markazi Iran, wrongfully failed to transmit a payment order of $378,000 authorized by Mahab. Damages totalling $3,256,787.26 are claimed.

The above suit was preceded by dramatic events. On November 4, 1979, American hostages were seized at the United States Embassy in Teheran. That hostile and unprecedented act precipitated a crisis in relations between Iran and the United States. On November 14, 1979, in response to the taking of hostages, President Carter declared a national emergency1 and ordered blocked "all property and interests in property of the Government of Iran, its instrumentalities and controlled entities and the Central Bank of Iran which are or become subject to the jurisdiction of the United States ...." Exec. Order No. 12170, 44 Fed.Reg. 65729. The President further authorized the Secretary of the Treasury to employ all powers granted to the President under the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., to carry out the blocking order. Pursuant to this authorization, the Treasury Department's Office of Foreign Assets Control (OFAC) promulgated regulations, effective November 14, 1979, prohibiting, absent a license or authorization, injunctions, attachments, judgments, or other relief, against property in which Iran or its entities had an interest. 31 C.F.R. §§ 535.201, 535.203(e), 44 Fed.Reg. 65956.

Main moved to sue the Iranian defendants a few days after the President and OFAC had acted. On November 19, 1979, it sought authority from OFAC to institute suit against the Iranian defendants, and, in conjunction therewith, to obtain injunctive relief and attachments against Iranian assets.2 On November 20, 1979, an OFAC official informed Main's representatives over the telephone, and on November 21, 1979 Main received written confirmation, that it would be given a "special license" to "initiate and prosecute judicial proceedings" and to obtain preliminary relief against Iranian property; the license specifically provided that Main was not authorized to proceed to judgment on its claims or to receive any payment from the blocked assets. (On November 23, 1979, regulations were promulgated authorizing suits against Iran and its governmental entities on terms similar to those specified in Main's license. 31 C.F.R. § 535.504, 44 Fed.Reg. 67617.) Effective November 19, 1979, all OFAC "rulings, licenses ... (and) authorizations" pertaining to Iranian assets were explicitly made revocable "at any time." 31 C.F.R. § 535.805, 44 Fed.Reg. 66834.

On November 20, 1979 the day Main commenced its action the district court approved ex parte attachments on trustee process and issued a temporary restraining order enjoining the Iranian defendants from disposing of any of their assets located in the United States. On December 12, 1979, following a hearing, the district court entered a preliminary injunction to the same effect as its earlier TRO.3 Defendants appealed the order granting the preliminary injunction, and this court heard oral argument on October 8, 1980. Further proceedings on the appeal were stayed, however, pending the outcome of ongoing negotiations for the release of the American hostages.4

On January 19, 1981, Iran released the hostages pursuant to an agreement with the United States, embodied in two Declarations of the Government of the Democratic and Popular Republic of Algeria.5 The agreement states that it is "the purpose of both parties ... to terminate all litigation as between the Government of each party and the nationals of the other, and to bring about the settlement and termination of all such claims through binding arbitration." In furtherance of this goal, the agreement calls for the establishment of an Iran-United States Claims Tribunal (Tribunal), which will, with certain exceptions, arbitrate any such claims not settled within six months of the date of agreement; awards of the Tribunal will be "final and binding" and "enforceable ... in the courts of any nation in accordance with its laws." The United States is obligated "to terminate all legal proceedings in United States courts involving claims of United States persons and institutions against Iran and its state enterprises, to nullify all attachments and judgments obtained therein, to prohibit all further litigation based on such claims, and to bring about the termination of such claims through binding arbitration." The United States must also "act to bring about the transfer" by July 19, 1981 of all Iranian assets held in "U. S. banking institutions in the United States." One billion dollars of these assets will go directly to a security account which will be used to fund awards of the Tribunal; Iran has agreed to maintain a minimum balance of $500 million in this account until all such awards are satisfied.

On January 19, 1981, President Carter issued a series of executive orders implementing the terms of the agreement with Iran. Exec.Order Nos. 12276-12285, 46 Fed.Reg. 7913-7932. In pertinent part, these orders revoked all licenses permitting persons to exercise "any right, power or privilege" with regard to Iranian funds, securities or deposits, "nullified" all non-Iranian interests in such assets acquired subsequent to the November 14, 1979 blocking order, and required those holding blocked Iranian assets to transfer them to the Federal Reserve Bank of New York, "to be held or transferred as directed by the Secretary of the Treasury."6 See esp. Exec.Order No. 12279, 46 Fed.Reg. 7919. On February 24, 1981, President Reagan "ratified" the January 19 orders; he also ordered "suspended" all "claims which may be presented to the (Tribunal)" and provided that they "shall have no legal effect in any action now pending in any court of the United States." Exec.Order No. 12294, 46 Fed.Reg.14111.

On February 4, 1981, Main commenced an action in the District Court for the District of Massachusetts against the United States, seeking a declaration that the executive agreement with Iran, and the implementing executive orders and Treasury Department regulations, were in excess of the President's constitutional and statutory authority; in the alternative, Main sought a declaration that the agreement effected a "taking" of Main's "property" for a public use without just compensation, in violation of the fifth amendment. Chas. T. Main International, Inc. v. United States (Main v. United States), 509 F. Supp. 1162. On March 17, 1981, following a hearing, the district court granted the government's motion to dismiss the complaint in that case, holding that "the actions of Presidents Carter and Reagan have a legal basis in the provisions of Article II of the Constitution ... as well as in the powers granted to them by the provisions of the International Emergency Economic Powers Act."

On February 23, 1981, we remanded to the district court the appeal in Main v. KWPA, for reconsideration of the grant of preliminary relief in light of the executive agreement and orders. On April 7, 1981, relying on its decision in Main v. United States, the district court dissolved the preliminary injunction and vacated the ex parte attachments. The appeals from the orders in Main v. KWPA, and from the dismissal of the complaint in Main v. United States, are consolidated.7

The primary issue before us is one of presidential authority. As this nation's leader and as the head of one of the three coordinate branches of the federal government, the President holds substantial powers, both express and implied, under the Constitution. These powers may be supplemented, in certain areas, by delegations of authority from Congress. Justice Jackson described the reach of presidential power, and its interaction with that of the legislative branch, in his concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38, 72 S. Ct. 863, 870-71, 96 L. Ed. 1153 (1952):

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power ....

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Footnotes omitted.

Through the executive agreement with Iran, and through the implementing executive orders, the President has taken certain actions affecting Main's claims against Iran and its instrumentalities. First, he has purported to "nullify" Main's attachments and preliminary injunction against Iranian assets, and has prohibited Main from acquiring any further "right, power, or privilege" with regard to these assets. Second, he has ordered the transfer of Iranian assets to the Federal Reserve Bank, in preparation for their eventual transfer out of the United States. Finally, he has purported to "suspend" Main's "claim" against Iran and its governmental entities, at least pending a determination of the Tribunal's "jurisdiction" over the claim; if the Tribunal asserts jurisdiction, the suspension will, by virtue of the agreement, become a "termination" of the claim upon a decision by the Tribunal on the merits.

While each of these presidential actions is an integral part of a single agreement between the United States and Iran, there are salient differences between the first two and the third as regards the President's authority to undertake them. We thus analyze separately, first, the nullification of attachments and transfer of Iranian assets out of the United States and, second, the suspension of litigation currently pending before the courts of the United States.

A. Nullification of Attachments and Transfer of Assets

The International Emergency Economic Powers Act (IEEPA) enables the President, in times of declared national emergency, to:

(A) investigate, regulate, or prohibit

(i) any transactions in foreign exchange,

(ii) transfers of credit or payments between, by, through, or to any banking institution, to the extent that such transfers or payments involve any interest of any foreign country or a national thereof,

(iii) the importing or exporting of currency or securities; and

(B) investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest;

by any person, or with respect to any property, subject to the jurisdiction of the United States.

50 U.S.C. § 1702(a)(1). The President relied on his IEEPA powers in November 1979, when he "blocked" all Iranian assets in this country, and again in January 1981, when he "nullified" interests acquired in blocked property, and ordered that property's transfer. The President's actions, in this regard, are in keeping with the language of IEEPA: initially he "prevent(ed) and prohibit(ed)" "transfers" of Iranian assets; later he "direct(ed) and compel(led)" the "transfer" and "withdrawal" of the assets, "nullify(ing)" certain "rights" and "privileges" acquired in them.

Main argues that IEEPA does not supply the President with power to override judicial remedies, such as attachments and injunctions, or to extinguish "interests" in foreign assets held by United States citizens. But we can find no such limitation in IEEPA's terms. The language of IEEPA is sweeping and unqualified. It provides broadly that the President may void or nullify the "exercising (by any person of) any right, power or privilege with respect to ... any property in which any foreign country has any interest ...." 50 U.S.C. § 1702(a)(1)(B) (emphasis added).

To be sure, it could be argued, by implication, that in enacting IEEPA Congress did not intend to authorize the President to wipe out liens on Iranian assets predating the President's invocation of his IEEPA powers. The language of section 1702(a)(1) is drawn directly from section 5(b) of the Trading with the Enemy Act (TWEA), which elsewhere provided U.S. citizens with mechanisms for recapturing the value of their interests in enemy property subject to presidential control, see, e. g., TWEA §§ 7(a) & 9(a). Here, however, there is no issue of presidential power to nullify judicially created interests in the property retroactively. By the time Main acted, the assets were within the President's control, under the umbrella of his IEEPA powers. Once the blocking order was in place, we do not believe that Main could obtain such an interest in the blocked assets as would later hamper the President in disposing of them. Main, in fact, proceeded against the "blocked" Iranian assets only under the provisional Treasury Department license which it had obtained.8 By the terms of the license and by regulation, Main was prohibited from obtaining a final judgment against the assets or in any other manner levying on the assets to satisfy its claim. In the circumstances, we think Main could acquire no greater "property interest" in the blocked funds through "judicial remedies" or otherwise than its conditional license and the regulations allowed.

A presidential blocking order virtually identical to this was held impervious to judicial attachment in Orvis v. Brownell, 345 U.S. 183, 73 S. Ct. 596, 97 L. Ed. 938 (1953). In Orvis, United States litigants had obtained an attachment against property belonging to Japanese nationals, which was subject to a presidential blocking order entered pursuant to section 5(b) of the TWEA. The Alien Property Custodian (under the President's direction) had subsequently "vested" the property against which the attachment was entered, and had refused the litigants a license to use vested funds in satisfaction of their judgment against the Japanese nationals. The Supreme Court had already held, in Zittman v. McGrath, 341 U.S. 446, 71 S. Ct. 832, 95 L. Ed. 1096 (1951), that even with the blocking order in effect, litigants were entitled to obtain prejudgment attachments against "enemy" property.9 Nevertheless, in Orvis the Court held such attachments ineffectual as against the Custodian's (and, by clear implication, the President's) power to transfer, vest, and dispose of the assets in the manner he saw fit. Although section 9(a) of the TWEA expressly provided "non-enemies" with a claim against the Custodian to recover any "interest, right, or title" in enemy property, the Court held that an attachment entered after a blocking order created no such "right" or "interest":(T)he general assent by the Government to state attachment procedures which we recited in the Zittman opinion did not extend so far as to recognize them as effecting a transfer. To so interpret it would ignore the express conditions on which the consent was extended. Realistically, these reservations deprive the assent of much substance; but that should have been apparent on its face to those who chose to litigate.

Id., at 187, 73 S.Ct. at 598.

The clear import of Orvis is that Main's injunction and attachments, obtained pursuant to a conditional Treasury Department license subsequent to the President's "freeze" of Iranian assets by blocking order, do not constrain the President in exercising his express powers under IEEPA to nullify non-Iranian interests in the assets and transfer them out of the country. Similar to Orvis, "the question is not whether a lien, concededly valid because obtained prior to the freezing order, may be 'annulled' by the (President), but rather whether the freezing order prevented the subsequent acquisition, by attachment, of such a property interest as the (President) would have to recognize ...." Id., at 188, 73 S.Ct. at 598. As in Orvis, the answer is in the affirmative.

We see no distinction between Orvis and the present case in the fact that IEEPA was enacted (in 1977) to, in certain respects, limit the President's former peace-time powers under the TWEA. While some such limitations were effected by IEEPA's enactment,10 50 U.S.C. § 1702(a)(1), on which the President relies, is virtually identical to section 5(b)(1) of the TWEA, with the exception that the President may no longer direct the "vesting" of foreign property. The President, however, has not purported to cause Iranian assets to "vest," but has simply ordered their "transfer" without effecting any change in title or ownership. Nor has the President "seized" the assets, as he would have been authorized to do under section 7(c) of the TWEA.11

Since Congress has authorized the President to block Iranian assets, nullify attachments of such assets obtained after the blocking order took effect, and transfer the assets out of the United States, the President lacked authority for these actions only if "the Federal Government as an undivided whole lacks (such) power ...." Youngstown, supra, 343 U.S. at 636-37, 72 S. Ct. at 870-71. Quite plainly, the federal government's powers do encompass control over foreign assets used in international commerce. See, e. g., Orvis v. Brownell, supra, 345 U.S. at 188, 73 S. Ct. at 598; Propper v. Clark, 337 U.S. 472, 482-86, 69 S. Ct. 1333, 1339-41, 93 L. Ed. 1480 (1949); see also Part III, infra (President may settle claims). Equally plainly, the compensation clause of the fifth amendment of the Constitution does not constrain the President in nullifying Main's attachments. Main's argument based on the compensation clause is undercut by the fact that its "interest" in Iranian assets was ab initio subordinate to the President's IEEPA powers.12 See supra. Since Main's "property interest" in the Iranian assets was defined and delimited by IEEPA's terms, it could not have been "taken" by presidential action effected pursuant to the statute.

We therefore hold that the President had authority to order the transfer of blocked Iranian assets without regard to attachments or other judicial orders against the assets obtained subsequent to the November 14, 1979 blocking order.

The President's order suspending claims stands on a different footing. While it is not impossible to read IEEPA itself as providing authority for the President to suspend or terminate claims against a foreign sovereign, the statutory meaning in this regard is scarcely clear, and there is no precedent for such a reading.13 Though we read IEEPA as giving some support to the President's order, see note 13, supra, we cannot say that it provides sufficient authority. We therefore approach the President's order in terms of whether he had inherent power under the Constitution to take such action. We hold that he did.

We are met at the outset with differing characterizations by the parties of what the President is attempting to do. Main contends that the President is attempting to regulate federal court "jurisdiction." If so, the validity of his actions would be in great doubt, since the power to define the jurisdiction of the lower federal courts is committed to Congress. U.S.Const., Art. I, § 8, cl. 9; Art. III, §§ 1 & 2, cl. 2. Moreover, in 1976 Congress enacted the Foreign Sovereign Immunities Act (FSIA), providing that "the district courts shall have original jurisdiction of any nonjury civil action against a foreign state ... as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under (28 U.S.C. §§ 1605-07) or under any applicable international agreement." 28 U.S.C. § 1330(a).14

The United States, on the other hand, maintains that the President has not attempted to divest the federal courts of "jurisdiction" over claims against Iran, but has simply exercised his constitutionally based power to "settle" the claims of U.S. nationals against a foreign state in the course of negotiating an end to an international crisis. The mandated settlement, in this instance, requires U.S. claimants to divert their claims to an international arbitration tribunal, with provision for a $1 billion fund from which to pay the Tribunal's awards, and for enforcement of awards in any country in accordance with its laws. Since the claims are thus "settled," they can no longer have any "legal effect" in the United States courts. Cf. Exec.Order No. 12294, 46 Fed.Reg. 14111.

The terms of the agreement with Iran, and of the executive orders themselves, may to some extent belie the United States' characterization of the President's actions as reflecting only a settlement of claims. The Declarations obligate the United States "to terminate all legal proceedings in United States courts" based on claims against Iran, and "to prohibit all further litigation based on such claims." Moreover, Exec.Order No. 12294, 46 Fed.Reg. 14111, purports, of its own force, to "suspend" "all claims for equitable or other judicial relief ... in any action now pending in any court of the United States," insofar as such claims may be presented to the Tribunal.15 Nevertheless, if the President is in fact empowered to effect a binding settlement of the claims of United States nationals against Iran, it matters little, in practical terms, whether he has improperly attempted to go further. A binding settlement would compel dismissal of Main's action, not for lack of "jurisdiction," but for "failure to state a claim." Thus, rather than undertake a discussion of the President's ability, in general, to enter orders that might have an impact on the scope or exercise of federal court jurisdiction, we think it more appropriate to begin with an inquiry into the President's asserted international claims settlement power.

International agreements settling claims by nationals of one state against the government of another "are established international practice reflecting traditional international theory." L. Henkin, Foreign Affairs and the Constitution 262 (1972). In numerous instances, dating back to the earliest days of this country's history,16 the President, often acting without the advice or consent of the Senate, has agreed to extinguish claims of United States nationals against foreign governments, in return for lump sum payments or the establishment of arbitration procedures. For recent examples see Agreement Between the Government of the United States and the Government of the People's Republic of China Concerning the Settlement of Claims, --- U.S.T. ---, T.I.A.S. 9306 (May 11, 1979); Agreement Between the Government of the United States and the Government of the Arab Republic of Egypt Concerning Claims of Nationals of the United States, 27 U.S.T. 4214, T.I.A.S. 8446 (May 1, 1976); Agreement Between the Government of the United States and the Government of the Hungarian People's Republic Regarding the Settlement of Claims, 24 U.S.T. 522, T.I.A.S. 7569 (March 3, 1973). See also J. B. Moore, Treaties and Executive Agreements, Sept. 1905 Political Science Quarterly 385, reprinted at 62 Cong.Rec. 13063-68, esp. 13066 (Sept. 21, 1922) ("It would be a work of supererogation to attempt to cite all the cases in which the Executive of the United States has settled individual claims against foreign governments without reference to the Senate"; "(n)ot only is the power of the President to settle the claims of citizens of the United States against foreign governments firmly established but he has repeatedly employed arbitration for the purpose.").

To be sure, such settlements were often encouraged by the U.S. claimants themselves; a claimant's only hope of obtaining any payment at all might lie in having his government negotiate a diplomatic settlement with the foreign power. However, the President has "sometimes disposed of the claims of (U.S.) citizens without their consent, or even without consultation with them, usually without exclusive regard for their interests, as distinguished from those of the nation as a whole." L. Henkin, supra, at 263. See, e. g., Meade v. United States, 76 U.S. (9 Wall.) 691, 19 L. Ed. 687 (1869); Comegys v. Vasse, 26 U.S. (1 Pet.) 193, 7 L. Ed. 108 (1803); cf. United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L. Ed. 49 (1801). See also Gray v. United States, 21 Ct. Cl. 340 (1886) (detailing history of the "French Spoliation Claims"). Indeed, the current Restatement (Second) of the Foreign Relations Law of the United States § 213 (1965) lists as black letter law the proposition that

The President may waive or settle a claim against a foreign state based on the responsibility of the foreign state for an injury to a United States national, without the consent of such national.17

The Supreme Court has recognized this presidential settlement power as being incidental to the President's position as the nation's representative in the arena of international affairs, and in particular, as a power necessary to facilitate the resolution of crises in foreign relations. In United States v. Pink, 315 U.S. 203, 62 S. Ct. 552, 86 L. Ed. 796 (1942), the Court upheld the President's authority to undertake the so-called Litvinov Assignment, which, as part of the normalization of relations between the United States and the Soviet Union, settled claims of U.S. nationals arising from Russia's expropriations of property.18 The Court had already held, in United States v. Belmont, 301 U.S. 324, 57 S. Ct. 758, 81 L. Ed. 1134 (1937), that it was within the President's exclusive competence to undertake negotiations leading to the normalization of relations between the two governments, and to officially recognize the Soviet government. Id., at 330-31, 57 S. Ct. 760-61. In Pink, the Court said:

The purpose of the discussions leading to the policy of recognition was to resolve "all questions outstanding" between the two nations.... Settlement of all American claims against Russia was one method of removing some of the prior objections to recognition based on the Soviet policy of nationalization.

Id., at 227, 62 S.Ct., at 564. It continued,

Power to remove such obstacles to full recognition as settlement of claims of our nationals ... certainly is a modest implied power of the President who is the "sole organ of the federal government in the field of international relations." United States v. Curtiss-Wright Corp., supra, (299 U.S.) page 320, (57 S.Ct. page 221, 81 L. Ed. 225). Effectiveness in handling the delicate problems of foreign relations requires no less. Unless such a power exists, the power of recognition might be thwarted or seriously diluted. No such obstacle can be placed in the way of rehabilitation of relations between this country and another nation, unless the historic conception of the powers and responsibilities of the President in the conduct of foreign affairs (see Moore, Treaties and Executive Agreements, 20 Pol.Sc.Q. 385, 403-417) is to be drastically revised. It was the judgment of the political department that full recognition of the Soviet Government required the settlement of all outstanding problems including the claims of our nationals. Recognition and the Litvinov Assignment were interdependent. We would usurp the executive function if we held that that decision was not final and conclusive in the courts.

It is not difficult to understand why it has become generally accepted that the President possesses power, at least in times of crisis in our international relations, to settle the claims of United States nationals against a foreign government. The matter becomes particularly clear if, as Justice Jackson maintained in his Youngstown concurrence, "any actual test" of the President's constitutional powers, especially in the foreign relations field, "is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law." 343 U.S. at 637, 72 S.Ct. at 871. This case well illustrates the imperative need to preserve a presidential flexibility sufficient to diffuse an international crisis, in order to prevent the crisis from escalating or even leading to war. As the Supreme Court has consistently recognized, it is the President who is charged with responsibility as the United States' representative and negotiator in the international arena. See, e. g., United States v. Belmont, supra, 301 U.S. 330-31, 57 S. Ct. 760-61, 81 L. Ed. 1134; United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-22, 57 S. Ct. 220-21, 81 L. Ed. 225 (1936). The authority to remove impediments to the peaceful resolution of international disputes is an authority necessary to meet the responsibilities of presidential office, and, in the words of the Supreme Court, a "modest implied" attribute of presidential power. See United States v. Pink, supra, 315 U.S. at 229, 62 S. Ct. at 565.20

We cannot agree with Main that the FSIA was meant to eradicate "executive branch flexibility in an international crisis." No such intention is to be gleaned from the language of the statute, or to be found in its legislative history. FSIA was directed toward a single topic sovereign immunity.21 In principal part, FSIA simply codifies contemporary concepts concerning the scope of sovereign immunity, and entrusts to the courts the determination of immunity in individual cases. To be sure, one objective of FSIA an objective heartily endorsed by representatives of the executive branch22 was to end the practice whereby the State Department was expected to file, on a case-by-case basis, "suggestions of immunity," to which the courts would normally defer. However, the fact that the State Department may no longer, in the normal course of events, dispose of commercial litigation against a foreign state by asserting that state's immunity from suit does not reflect adversely on the President's long-accepted power, in times of international emergency, to settle or provide substitute means for the resolution of the underlying claims. As the district court stated, in providing a workable federal forum for the adjudication of commercial litigation involving foreign entities, "Congress never intended to cripple the negotiating power of American Presidents."23

We recognize that there are few precedents which deal precisely with claims of U.S. citizens against foreign government corporations. But merely because the FSIA has eased the way to suing such entities, it does not follow that the President's settlement power in the interest of conducting the nation's foreign affairs has been declared off limits in such suits. We observe that many foreign states, both developed and less developed, conduct vast and critically important economic programs and projects through the device of government corporations. Suits against such entities in many instances have the same impact as suits against the states themselves; by the same token amicable settlement has the same beneficent impact on our nation's foreign affairs. We thus consider such suits to be closely akin to suits against foreign governments themselves, and view neither our holding nor our analysis as having any necessary implications for the broad class of suits against foreign individuals and private commercial entities discussed by the concurring opinion. In this case, both because of the nature of the foreign entities involved and the unique surrounding circumstances, the President's action stands poles apart from executive settlement of a claim against a purely commercial foreign entity affecting only the parties to the settlement.

We need not and do not hold that the executive possesses plenary power to settle claims, even as against foreign governmental entities. It may be that much of this area is within that "zone of twilight in which (the President) and Congress may have concurrent authority." Youngstown, supra, 343 U.S. at 637, 72 S. Ct. at 871. The sheer magnitude of such a power, considered against the background of the diversity and complexity of modern international trade, cautions against any broader construction of authority than is necessary. Here, however, the President has acted to resolve what was indisputably a major crisis in the foreign relations of this country. His settlement of the claims of Main and others was not an isolated event but a necessary incident to the resolution of a dispute between our nation and another. Whatever may be the reach of the executive power under circumstances that implicate less squarely the conduct of foreign relations, the executive power extends so far as to permit the accord reached here.

We hold, therefore, that the President had authority to settle Main's claims against the Iranian defendants, by providing for their submission to binding arbitration. This being the case, we need not decide whether the President went too far in purporting to "order" the "suspension" of litigation relating to the claims. The claims having been settled, they are no longer cognizable in the courts, except insofar as permitted by the settlement's terms.

Main argues that it is at least entitled to compensation from the United States as a result of the President's actions in settling the claims.24 We think, however, this issue is neither properly presented nor ripe for review.

There may well be situations when the President's extinction or "settlement" of a claim against a foreign government, without the consent of the claimant, would constitute a "taking" of private property for a public "use." See U.S.Const., Amend. V. Here, of course, the President has not simply "extinguished" Main's claim, but has provided alternative means for its resolution and satisfaction. Thus, his actions could at very most constitute a "taking" of property only if the alternative method of satisfying the claim (i. e., submission to the Tribunal) is demonstrably and measurably inferior to the rights otherwise available to Main (i. e., the right to attempt to obtain an unsecured judgment in the federal court). Yet, at present, it would be impossible to say with assurance whether the President has substituted a "lesser" remedy for a "greater," or vice versa.

To be sure, arbitration before the Tribunal poses, from Main's perspective, certain obvious disadvantages. Main might fear that a panel composed partly of Iranians will approach Main's claims with less sympathy than might a United States district court. The Tribunal could become stalled in procedural wrangles. On the other hand, there may, in fact, be some advantages to the arbitration process. Iran will be unable to present sovereign immunity or act of state defenses, and thus, at the least, potentially troublesome pre-trial skirmishes will be avoided.25 Main will also derive some protection from a $1 billion security account, although it maintains this security represents only a fraction of all claims and thus may be inadequate. The Declarations also provide that Tribunal awards will be enforceable in any country in accordance with its laws. Thus, even should the security account prove insufficient, the Tribunal award may nevertheless be more valuable, in terms of enforcement abroad, than an equivalent unsecured United States court judgment. And, of course, the amount the Tribunal will award Main on its claim is at present uncertain.

Not only is Main's claim for compensation, at this point, wholly speculative, it is (unless "not exceeding $10,000 in amount") made before the wrong tribunal. See 28 U.S.C. §§ 1346, 1491 & 2201. If and when Main can establish a "taking" for which compensation is due, its remedy will lie in the Court of Claims. See Regional Rail Reorganization Act Cases, 419 U.S. 102, 125-36, 95 S. Ct. 335, 349-54, 42 L. Ed. 2d 320 (1974); Hughes Aircraft Co. v. United States, 534 F.2d 889, 902-06 (Ct.Cl.1976) (28 U.S.C. § 1502 bars only claims involving "rights given or protected by a treaty," which derive their "life and existence" from a treaty stipulation); see also United States v. Weld, 127 U.S. 51, 56-57, 8 S. Ct. 1000, 1002-1003, 32 L. Ed. 62 (1888).

For the reasons stated above, we affirm the dismissal of the complaint in Main v. United States. We also affirm the orders of the district court in Main v. KWPA dissolving the preliminary injunction and vacating the ex parte attachments. In those orders, the district court stated that it "no longer (had) jurisdiction over the controversy." We think the court was technically incorrect in so stating: while the claims have been "settled" leaving the district court without any matters to adjudicate, litigation might be recommenced in the future in narrow circumstances contemplated in the February 24, 1981 Executive Order. Moreover, the district court certainly has jurisdiction to remove any remaining vestiges of the attachments and preliminary injunction, and there may be other relief, ancillary to the settlement and consistent with this opinion, which it may grant. (For example, to the extent the district court has not, as the United States asserts, vacated all attachments entered in Main v. KWPA, it may and should do so upon a proper motion.) This constitutes the full extent of the matters before us on appeal. We note the request of the United States that we "direct a stay of litigation of Main's claims against Iran which may be presented to the Tribunal." No such matter is encompassed within the pending appeals. If appropriate, such a request should be directed to the district court, which, we are certain, will act upon it in a manner not inconsistent with this opinion.

So ordered.

BREYER, Circuit Judge (concurring).

I agree with the court's disposition of this case and with its opinion insofar as it concerns Iran's assets the main issue from both a practical commercial, and a foreign affairs, point of view. I find troubling, however, the court's opinion on a subsidiary point that the President has inherent Article II power to settle Main's claim against the Khuzestan Water & Power Authority over Main's objection. The "inherent power" question is more difficult than the court suggests and at the same time it is not necessary to the court's decision. Given the need for a speedy decision and the possibility of further review,1 I shall state my reasons briefly.

It is unnecessary to reach the question of whether the President, on his own under Article II, could suspend and settle Main's suit because IEEPA gives him adequate Congressional authority to take this action. IEEPA specifically gives the President the power to "regulate, ... nullify, void, prevent or prohibit ... (the) exercising (of) any right, power, or privilege with respect to ... any property in which any foreign country or a national thereof has any interest; by any person, or with respect to any property, subject to the jurisdiction of the United States." 50 U.S.C. § 1702(a)(1)(B). A civil lawsuit is surely the "exercising" of a "right" with respect to "property". The Khuzestan Water & Power Authority is a "foreign ... national" which has an interest in property that will be affected by the lawsuit. Even if the Authority's property is not now in the United States, the suit is brought "by" a "person ... subject to the jurisdiction of the United States." Thus, whether or not one considers Main's claim itself "property" subject to IEEPA, the President has authority under IEEPA's language to "void" or to "prohibit" the exercise of his right to sue. And, the history of IEEPA, enacted in the context of a lengthy list of instances in which the President has settled suits against foreign nations, supports the notion that Congress gave the President its specific assent to suspend, to prohibit, or to void such suits against foreign nations or nationals, during an emergency, where he finds that such action is required. H.R.Rep.No.459, 95th Cong. 1st Sess. 11, 15 (1977). See also United States v. Yoshida International, Inc., 526 F.2d 560, 579 (C.C.P.A.1975). Thus, we are here dealing with an instance of the President's acting with the specific assent of Congress the first, not the second, category mentioned in Youngstown. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952). As the court points out, the Executive's authority in such a case has its greatest Constitutional breadth and is more than adequate to take the actions at issue.

I am reluctant to go further and attempt to determine the scope of the President's inherent Article II power to settle suits against foreign nationals over the plaintiffs' objections because that question is less clear than the court suggests. The court lists numerous instances of claim settlements, but these almost exclusively involved claims by Americans against foreign governments. It is hardly surprising that the President could settle such a claim, for under traditional principles of international law an individual had no claim against a foreign country ; only a nation could assert a right against another nation. Ex Parte Peru, 318 U.S. 578, 63 S. Ct. 793, 87 L. Ed. 1014 (1943). And, our courts recognized this principle of international law by allowing foreign countries to assert a defense of sovereign immunity when sued by an American in a domestic court. Id. During this century, however, international law has changed, and governments acting in a commercial capacity now tend to be treated like private citizens before the courts. The United States first recognized this change in the Tate Letter. 26 Dept. State Bull. 984 (1952). Congress then specifically codified the change in the Foreign Sovereign Immunities Act (FSIA) which instructed the courts not to accept a defense of sovereign immunity when the foreign entity sued is commercial in nature thereby treating them, for this purpose, like private citizens. 28 U.S.C. §§ 1330, 1602 et seq. Thus, there is some reason to believe that an action such as this one a suit against the Khuzestan Water & Power Authority based upon a contract for engineering services is to be treated by the courts like other suits by Americans against foreign individuals.2

Once one sees the potential implications of the court's opinion upon claims against foreign individuals,3 one becomes uncertain about the validity of its broad assertion of inherent Presidential power. As the court points out, the foreign affairs power implicit in Articles I and II of the Constitution gives broad authority to the government to settle such claims where necessary particularly if the Fifth Amendment's prohibition of taking private property for public use without "just compensation" is honored through the allowance of a later suit. See Regional Rail Reorganization Act Cases, 419 U.S. 102, 124-5, 95 S. Ct. 335, 349, 42 L. Ed. 2d 320 (1974).4 Yet, the FSIA, by removing sovereign immunity as to such claims, suggests that the government is not the President alone.5 The President does not on his own, without Congressional approval, have the power to seize a domestic steel mill at a time of grave domestic crisis. Youngstown Sheet & Tube Co. v. Sawyer, supra. Does he nonetheless have the power to seize an American's claim against, say, a foreign steel mill, even in the face of Congressional silence or opposition? The answer to this question is not given in the precedents the court cites for they are cases decided prior to evolution of the restrictive view or involve claims against a foreign government rather than a private citizen or both. One suspects the answer to this question depends upon the nature of the emergency facing the President, whether Congress is actively opposed and whether compensation is granted. But there is no need now to say that the President has broad inherent authority to settle all such claims in peace or war. To do so, given the commercial interdependence of the modern world and the scope of America's commercial involvement in foreign commerce, is to find enormous inherent power in the President to regulate international commercial dealings. And, it is a power that may, as a practical matter, be exercised, not by the President himself, but by lesser officials in the Departments of State or Commerce.

Since this is not a case which requires a decision of such magnitude, I would not make it. Rather, it is a case in which the President and Congress are in agreement, in which the Congress has delegated to the President adequate legislative authority to take the steps he proposes. And, that delegation, together with the President's actions, is sufficient to justify the court's decision.