In a previous post, I commented on and critiqued Movsevian v. Victoria Versichureng AG, in which the 9th Circuit held that a California law creating a cause of action against insurance companies for victims of the “Armenian Genocide” was preempted by express federal policy “prohibiting” recognition of such an event.
My basic criticism rested on the Supreme Court’s decision in Medellin v. Texas. Medellin said that the President couldn’t convert a non-self-executing treaty into domestic law with preemptive effect in the absence of congressional action. A fortiori, I argued, the President’s expressions of a “federal policy” against recognition of the Armenian Genocide shouldn’t have preemptive effect either, especially where (as here) Congress had expressed support for recognition.
So it’s nice to see that the 9th Circuit has reversed course, withdrawn the previous Movsevian opinion, and issued a new one (2010 WL 5028828), holding that the California law is not preempted. Here’s its reasoning in brief:
- First, the court draws a lesson from Medellin, implicitly acknowledging the tension between that decision and Garamendi:
It is well settled that “at some point an exercise of state power that touches on foreign relations must yield to the National Government’s policy.” [Garamendi]. “Nor is there any question generally that there is executive authority to decide what that policy should be.” Id.… However, not every executive action or pronouncement constitutes a proper invocation of that potentially preemptive policy-making power. See Medellin v. Texas….
- Second, the court pointed to notable expression of support for recognizing the Armenian Genocide by former presidents, President Obama, Congress, and the states.
- Finally — and significantly, I think – the court made use of a footnote in Garamendi that has yet to receive much judicial attention. That footnote directs courts conducting preemption analyses to consider the strength of a state’s interest to determine “how serious a conflict [with federal law or policy] must be shown before declaring the state law preempted.” The court found that California had a sizable interest in insurance regulation and that the effect on foreign affairs was “incidental.”
