The Limits of Executive Authority to Preempt Contrary State Laws in Foreign Affairs after Medellín V. Texas

In 2012, the U.S. Court of Appeals for the Ninth Circuit decided Movsesian v. Victoria Versicherung AG after hearing the case three times. In the final hearing, the court held that an informal executive policy against the recognition of the Armenian Genocide was sufficient to preempt a California law that provided such formal recognition. Scholars have criticized this decision on grounds that it conflicts with one of the Court's latest holdings on foreign affairs preemption in Medellin v. Texas. The extension of Medellin to foreign affairs preemption cases such as Movsesian III is inappropriate, however, because Medellin involved highly unique facts in three ways. First, the executive action in Medellin inherently and radically conflicted with the will of Congress in that it attempted to execute a non-self-executing treaty into law by way of an executive memorandum. Second, Medellin posed the unique threat of empowering international courts over domestic courts, a threat that was absent in Movsesian III. Third, Medellin involved the adjudication of a criminal matter, an arena in which the states possess a quintessential and thus preemptively more resilient interest than the insurance regulation matter at issue in Movsesian III.Because of these essential differences between Medellin and Movsesian III, the Ninth Circuit was correct in preempting the California law. Furthermore, the Ninth Circuit's decision in Movsesian III was not only consistent with precedent but also normatively sound. Movsesian III's vision of executive authority, in which Congress's will receives due deference, is more likely to produce rational policy choices and accord with foundational democratic values.INTRODUCTIONOn Wednesday, July 30, 2014, Republicans in the House of Representatives voted to proceed with a lawsuit against the President of the United States1 on grounds that he "ha[d] circumvented the Congress through executive action."2 Though a congressional lawsuit against the President is unusual,3 such bitter debates over the President's power are not.4 In fact, this latest episode from the House of Representatives continues a heated debate that has lasted in American history since the Constitution's inception.5This debate took on renewed national significance in the years leading to the Supreme Court's 2008 decision, Medellin v. Texas,6 during which time the Bush Administration embarked upon a series of remarkably aggressive executive actions.7 In recent years, however, most scholarship on Medellin has focused on the judgment's significance for the status of international obligations in United States courts.8 Less examined is the import of Medellin on foreign affairs preemption and, specifically, the power of the President to preempt foreign affairs-related state laws. The limited scholarship addressing Medellin's impact on federal foreign affairs preemption suggests that the case narrows the President's authority over foreign affairs preemption.9This Comment takes the opposite view, arguing that Medellin does not provide a widely applicable rule for foreign affairs preemption cases. To demonstrate Medellin's limited effect on the foreign affairs preemption doctrine, this Comment will evaluate Movsesian v. Victoria Versicherung AG (Movsesian I, Movsesian II, and Movsesian III),10 a series of three appeals decided by the U.S. Court of Appeals for the Ninth Circuit. In Movsesian I, the issue was whether a non-binding executive policy refusing to recognize as genocide the Turkish government's mass killings of Armenians in 1915-191611 preempted a California law providing such recognition.12 After twice reversing its decision, the court, sitting en banc, held that the executive policy preempted the California law because the California law did not concern traditional state powers and intruded "on the field of foreign affairs entrusted exclusively to the federal government."13 This Comment argues that, contrary to what scholars have suggested, the Ninth Circuit was correct in its final decision because Medellin did nothing to limit the bounds of foreign affairs preemption. …