Exxon Mobil Corp. v. Corporación Cimex, S. A. (Cuba) · ¶106

The majority’s first wrong turn is to reduce Kirtz to an over-simplified formula: cause of action plus potential sovereign defendant (“check,” “check”) equals abrogation of sovereign immunity. Ante, at 10. The Helms-Burton Act creates a cause of action and defines the potential defendants to include foreign instrumentalities. Ergo, the Helms- Burton Act abrogates those instrumentalities’ immunity— or so goes the majority’s logic. But as discussed earlier, Kirtz required more. See supra, at 5–6. It required that the cause of action provided against sovereign defendants be inexplicable absent an abrogation—that Congress would have provided the action only to take it away. See 601 U. S., at 50–51; see also FOMB, 598 U. S., at 348 (“The very suits allowed against governments would automatically have been dismissed”). In fact, the majority appears to recognize its argument’s inadequacy,…

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