Is There a Federal Policy Preventing States from Recognizing the Armenian Genocide?

Is There a Federal Policy Preventing States from Recognizing the Armenian Genocide?

That’s the question that a Ninth Circuit en banc panel heard yesterday in Movesian v. Versicherung AG. There is no statute, treaty or executive order refusing to recognize the Armenian Genocide, but there have been equivocal statements by various Presidents on the subject and failed attempts to adopt congressional resolutions recognizing the Armenian genocide. Is that enough to constitute a federal policy that would preempt a California statute (CCP 354.4), which provides in relevant part:

Notwithstanding any other provision of law, any Armenian Genocide victim, or heir or beneficiary of an Armenian Genocide victim, who resides in this state and has a claim arising out of an insurance policy or policies purchased or in effect in Europe or Asia between 1875 and 1923 from an insurer described in paragraph (2) of subdivision (a), may bring a legal action or may continue a pending legal action to recover on that claim in any court of competent jurisdiction in this state, which court shall be deemed the proper forum for that action until its completion or resolution.

In December 2010, a Ninth Circuit panel concluded that there was no federal policy that preempted the California statute.

The Ninth Circuit en banc oral argument yesterday is a great case to watch for anyone interested in preemption. My friend and former colleague Lee Boyd argued on behalf of Appellees, who are heirs of Armenian genocide victims seeking to collect on the insurance policies.

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Europe, International Human Rights Law
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Not only is there no federal preemption but the legislative history of the imperfect genocide legislation notes that states can proceed to pass their own laws.  Thanks to Prof. Mike Bazyler, who found this with his team and made the point most recently.

Harlan Cohen

There seems to be an interesting connection between this case and the Arizona immigration one mentioned earlier by Peter, namely, the shift at the Supreme Court between Garamendi and Medellin, both in terms of the Court’s holdings and in terms of the shift in personnel.  Souter seemed to be the strongest proponent of federal foreign affairs preemption, whereas Roberts, if Medellin is any guide, seems much more skeptical.  I wonder whether this shift will impact how the Arizona case comes out, and whether that decision, in turn, will carry any implications for cases like this one.