The Ninth Circuit (Judge Harry Pregerson writing) had an interesting recent decision regarding foreign relations federalism in Cassirer v. Thyssen-Bornemisza Collection Foundation.  The case involves California Code of Civil Procedure § 338(c)(3), which extends the statute of limitations for suit for the recovery of fine art against a museum, gallery, auctioneer, or dealer.  Cassirer claims ownership in a Camille Pissaro painting seized from his family by the Nazis and ultimately sold to the defendant Foundation.  The district court held § 338(c)(3) unconstitutional as a state interference in foreign affairs on the basis of Zschernig v. Miller and a line of Ninth Circuit precedent; the court of appeals reversed.  Here’s the core of the argument:

“The Constitution gives the federal government the exclusive authority to administer foreign affairs.” Movsesian v. Victoria Versicherung AG, 670 F.3d 1067, 1071 (9th Cir. 2012) (en banc), cert. denied, 133 S. Ct. 2795 (2013). Accordingly, “state laws that intrude on this exclusively federal power are preempted” under the foreign affairs doctrine. Id.

Under foreign affairs preemption there are two grounds for preemption: (1) conflict preemption and (2) field preemption.  Id. Conflict preemption occurs when a state acts under its traditional power, but the state law conflicts with a federal action such as a treaty, federal statute, or executive branch policy. 1071–72. The district court held that § 338(c) was not preempted on the basis of conflict preemption, and the Foundation does not challenge that ruling on appeal.

Field preemption occurs when a state, “in the absence of any express federal policy . . . intrudes on the field of foreign affairs without addressing a traditional state responsibility.” 1072. The Cassirers argue that the district court erred when it held that § 338(c)(3), as amended, is unconstitutional on the basis of field preemption. We agree.

Field preemption exists “when a state law (1) has no serious claim to be addressing a traditional state responsibility and (2) intrudes on the federal government’s foreign affairs power.” Id. at 1074. We need not consider whether § 338(c)(3) addresses an area of traditional state responsibility, because we conclude that § 338(c)(3) does not intrude on the federal government’s foreign affairs power.

To intrude on the federal government’s foreign affairs power, a statute must have “‘more than some incidental or indirect effect’ on foreign affairs.” Movsesian, 670 F.3d at 1076 (quoting Zschernig v. Miller, 389 U.S. 429, 434 (1968)). …

Section 338(c)(3) extends the statute of limitations for preexisting claims concerning a class of artwork that is unrelated to foreign affairs on its face. It does not require that those claims arise out of wartime injuries, or from any other specific source that might implicate the federal government’s foreign affairs power. Because § 338(c)(3) is silent on matters of foreign affairs, it does not convey “a ‘distinct juristic personality’ from that of the United States when it comes to matters of foreign affairs.’” 965. Nor is there any evidence in the record at this stage in the proceedings that California courts, as in Zschernig, are applying § 338(c)(3) to “establish [the State’s] own foreign policy.” 389 U.S. at 441.

The outcome seems clearly right to me, though whether it will survive en banc review is another question: the Ninth Circuit has been especially tough on state laws the implicate foreign affairs.

My interest, though, is in the opening discussion of the legal framework, which indicates that “Conflict preemption occurs when a state acts under its traditional power, but the state law conflicts with a federal action such as a treaty, federal statute, or executive branch policy.” (Emphasis added).  As I have argued here, and at greater length here, that can’t be right.  Article VI sets forth how state laws are preempted — through conflict with the Constitution, laws made “in Pursuance” of the Constitution, and valid treaties.  It does not include executive policy.  And in Medellin v. Texas (2008), with a strong originalist-oriented analysis, the Supreme Court expressly held that an executive branch policy of complying with judgments of the International Court of Justice did not preempt a Texas law that did not comply.

[Thanks to Donald (Trey) Childress (Pepperdine Law) for the pointer.]

NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey
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