Resolving the Disjunction between Cultural Property Policy and Law: A Call for Reform

Abstract

Cultural property policy in the United States has become increasingly lawless, for lack of a better term. In recent years, the Executive Branch has aggressively restricted the movement of cultural property into the United States, but it has repeatedly done so without regard for constraining legal authority. The result is a troubling disjunction between the Executive Branch’s current cultural property policies and the existing legal framework established by Congress and the Judiciary. We document that disjunction in this Article. We explain, for example, how the Executive Branch has recently repatriated an Egyptian sarcophagus and an antique French automobile to their respective countries of origin, but disregarded well-established judicial authority in the process. We explain how the Executive Branch has similarly sought to repatriate cultural objects to Italy, Peru, and Southeast Asia by relying on statutory authority that Congress plainly never designed for such a purpose. And we explain how the Executive Branch has imposed comprehensive import restrictions on cultural property from around the world without satisfying all of the statutory requirements mandated by Congress. In addition to documenting this disjunction between policy and law, we situate it in its broader context. We submit that the disjunction reflects that the legal framework is outdated. That framework is the product of the 1970s, when the cultural property field was still forming, and it has not incorporated the dramatic political and normative developments of the last three decades. We further explain how the Executive’s willingness to disregard statutory constraints raises serious and unresolved separation of powers concerns. This precarious constitutional dynamic undermines the democratic process and invites arbitrary policymaking. We therefore argue that statutory reform is necessary to resolve the disjunction, modernize the legal framework, and restore the rule of law. We conclude by offering suggestions for reform.