International Wrongs, State Law Remedies, and Presidential Policies
Loyola of L.A. Int'l & Comparative Law Review, Vol. 32, p. 19, 2010
24 Pages Posted: 3 Nov 2009 Last revised: 8 Oct 2010
Date Written: November 2, 2009
This article, prepared as part of Loyola of Los Angeles Law School’s symposium “Litigating Genocide,” considers the power of U.S. states to provide remedies for international wrongs such as genocide. Its immediate subject is the recent decision in Movsesian v. Victoria Versicherung AG (9th Cir. 2009); more broadly, it addresses the issue of conflict between state law remedies and policies of the U.S. executive branch. In Movsesian, the court concluded that presidential foreign policy preempts state law remedies when the two conflict. This article disagrees. Allowing otherwise valid state laws to be displaced by mere presidential policies is contrary to the Constitution’s designation of Congress, not the President, as the nation’s lawmaking body, and to the Constitution’s designation of treaties and statutes, but not presidential policies, as the “supreme Law of the Land.” It is also inconsistent with the U.S. Supreme Court’s decision in Medellin v. Texas. Though the Movsesian court gave Medellin only slight attention, Medellin involved the same issue: a claim that presidential foreign policy should preempt inconsistent state law. And Medellin held firmly against the President, even though it found the foreign policy implications invoked by the President to be “plainly compelling.” In reaching this conclusion, the Court sharply limited its prior decision in American Insurance Association v. Garamendi, which the court in Movsesian (and the executive branch in Medellin) read broadly to endorse the idea of executive foreign policy preemption. Notwithstanding Garamendi, the Court said in Medellin, the simple and determinative constitutional rule is that the President is not a lawmaker. This article argues that the Court’s conclusion in Medellin is correct as a matter of fundamental constitutional text and structure, and should allow state law claims for international wrongs to go forward unless displaced by a federal treaty or statute.
Keywords: federalism, foreign affairs, international law, executive power, preemption
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