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Extracted Text (OCR)
Cite as: 586 U.S. (2019) 3
BREYER, J., dissenting
organizations the “same immunity from suit ... as is
enjoyed by foreign governments.” Brief for Petitioners 23—
24. They invoke the Dictionary Act, which states that
“words used in the present tense include the future” “un-
less the context indicates otherwise.” 1 U.S.C. §1. But
that provision creates only a presumption. And it did not
even appear in the statute until 1948, after Congress had
passed the Immunities Act. Compare §1, 61 Stat. 638,
with §6, 62 Stat. 859.
More fundamentally, the words “as is enjoyed” do not
conclusively tell us when enjoyed. Do they mean “as is
enjoyed” at the time of the statute’s enactment? Or “as is
enjoyed” at the time a plaintiff brings a lawsuit? If the
former, international organizations enjoy immunity from
lawsuits based upon their commercial activities, for that
was the scope of immunity that foreign governments
enjoyed in 1945 when the Immunities Act became law. If
the latter, international organizations do not enjoy that
immunity, for foreign governments can no longer claim
immunity from lawsuits based upon certain commercial
activities. See 28 U.S. C. §1605(a)(2).
Linguistics does not answer the temporal question. Nor
do our cases, which are not perfectly consistent on the
matter. Compare McNeill v. United States, 563 U.S. 816,
821 (2011) (present-tense verb in the Armed Career Crim-
inal Act requires applying the law at the time of previous
conviction, not the later time when the Act is applied),
with Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2008)
(present-tense verb requires applying the law “at the time
suit is filed”). The problem is simple: “Without knowing
the point in time at which the law speaks, it is impossible
to tell what is past and what is present or future.” Carr v.
United States, 560 U.S. 488, 468 (2010) (ALIToO, J., dis-
senting). It is purpose, not linguistics, that can help us
here.
The words “same ... as,” in the phrase “same immunity
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