Case Comment: Movsevian v. Victoria Versichureng AG

Summary

In late August, the 9th Circuit ruled that a California statute extending the statute of limitations on insurance claims for victims of the “Armenian Genocide” was preempted under the foreign affairs preemption doctrine.  Movsevian v. Victoria Versicherung AG.  Movsevian, a person of Armenian dissent, sued Victoria and other insurance companies claiming benefits under insurance contracts in force when the Armenian Genocide took place (1915 to 1923).  The court granted the defendants’ motion to dismiss on the ground that the California statute was preempted by Executive Branch policy “prohibiting legislative recognition of an ‘Armenian Genocide.’”

Judge Thompson, writing for the court, began by finding an “express federal policy prohibiting legislative recognition of an ‘Armenian Genocide.’”  The court pointed to three resolutions in the U.S. House of Representatives that recognized the Armenian Genocide but that were never brought to the floor for a vote because Presidents Clinton and Bush “vehemently opposed” the resolutions.  For example, President Clinton, in a letter to then-Speaker Hastert, wrote, “Consideration of the resolution at this sensitive time will not only negatively affect [U.S.] interests [in the Middle East and Central Asia], but could undermine efforts to encourage improved relations between Armenia and Turkey….” 

In the court’s view, Executive Branch opposition was driven almost exclusively by the appearance of the two words “Armenian Genocide” in the resolutions.  The State Department under President Bush, commenting on a House resolution introduced in 2003, explained that “we oppose [the resolution’s] reference to the ‘Armenian Genocide’” and noted that “this wording…could complicate our efforts to bring peace and stability to the Caucasus.” 

The court went on to find that the California statute presented a “clear conflict” with Executive Branch foreign policy.  “The heart of [the statute’s] conflict,” the court wrote, “lies in these two words. By choosing to use the words ‘Armenian Genocide,’ [the statute] directly contradicts the President’s express foreign policy preference.”  Finally, the court found that California’s interest in establishing procedural rules and regulating insurers within the state were too minimal to uphold the statute in the face of the federal policy.

Critique

The Movsevian opinion relies heavily on the Supreme Court’s foreign affairs preemption jurisprudence, most notably Garamendi, as well Crosby, Belmont, Pink, and even Zschernig.  The opinion, however, fails consider the effect on these decisions of Medellin v. Texas. 

In Medellin, the Supreme Court held that, without implementing legislation from Congress, the President could not transform the provisions of a non-self-executing treaty – there, the U.N. Charter – into binding federal law that would preempt contrary state law.  The U.N. Charter provides that member states “undertak[e] to comply” with decisions of the International Court of Justice, and the ICJ had held that Medellin, a Mexican national who had been criminally convicted in Texas, was entitled to review and reconsideration of his claim that his rights under the Vienna Convention had been violated in the course of his trial and conviction.  When the Texas courts failed to comply with the ICJ decision, President Bush purported to direct them to “give effect” to that decision.  The Supreme Court held that the U.N. Charter was a non-self-executing treaty and, accordingly, that the President, acting alone, could not unilaterally give it domestic effect.

Imagine in Movsevian if the facts had been otherwise.  Imagine that President Obama had signed a treaty with Turkey, agreeing that the United States would “undertake to ensure that no legislative recognition is given to the ‘Armenian Genocide.’”  Say the treaty meets with Senate approval (subject to the condition that it is non-self-executing), but Congress fails to pass implementing legislation prohibiting recognition of the Armenian Genocide because such legislation fails in the House.  The situation then would be something like it was in Medellin – a non-self-executing treaty that lacks implementing legislation from Congress.  Imagine then that President Obama, purporting to act pursuant to the foreign affairs powers delegated to him by the Constitution, directed state courts to refuse to enforce state laws recognizing an Armenian Genocide.  Surely the President’s action would be struck down as a unilateral attempt to convert a non-self-executing treaty into domestic law binding on the states.

If that is so, then a fortiori, an “express federal policy” of the Executive Branch, embodied in nothing more than letters and statements opposing House resolutions recognizing an Armenian Genocide, cannot preempt state law.  In substance, the 9th Circuit in Movsevian  allows the Executive Branch to unilaterally convert its “foreign policy preference” into domestic law binding on the states. 

It is a colorable argument that Movsevian is rightly decided under Garamendi, but Medellin may have overruled certain aspects of that decision.  The 9th Circuit failed to countenance that possibility.

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