No. 10-80

IN THE

Supreme Court, U.S.

A~.- , ,,

DR. THOMAS WEISS,Petitioner,

v.

ASSICURAZIONI GENERALI, S.P.A. andBUSINESS MEN’S ASSURANCE

COMPANY OF AMERICA,Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THEUNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF AMICI CURIAE OFPROFESSORS OF CONSTITUTIONAL LAW ANDFOREIGN RELATIONS LAW IN SUPPORT OF THE

PETITION FOR A WRIT OF CERTIORARI

MICHAEL D. RAMSEY*UNIVERSITY OF SAN DIEGO

SCHOOL OF LAW5998 Alcala ParkSan Diego, CA 92110(619) 260-4145mramsey@sandiego.edu

MICHAEL E. ELSNERJOHN M. EUBANKSMOTLEY RICE LLC

28 Bridgeside Blvd.Mt. Pleasant, SC 29464(843) 216-9000

Counsel for Amici Curiae

* Counsel of Record

Blank Page

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES .........

LIST OF AMICI CURIAE ..................

INTEREST OF AMICI CURIAE ...........

STATEMENT AND SUMMARY OF ARGUMENT

ARGUMENT ..............................

The Decision Below Conflicts With BasicPrinciples Of Separation Of Powers AndFederalism ..........................

Ao The Constitution’s Basic Principles ofSeparation of Powers and FederalismRequire that Mere PresidentialPolicies Cannot Displace Otherwise-Constitutional State Law ..........

Bo The Decision Below Conflicts withBasic Constitutional Principles byGiving Preemptive Effect to MerePresidential Policy. ...............

II. Medellin v. Texas Reaffirmed That MerePresidential Foreign Policy Does NotDisplace State Law And Rejected BroadReadings Of Garamendi To The Contrary

Pageooo111

1

2

5

5

6

10

13

ii

Contents

Ao In Medellin, this Court Refused toFind a State Law Preempted by aMere Presidential Foreign Policy ..

Bo This Court’s Decision in MedellinLimits American Insurance Associa-tion v. Garamendi, on which theCourt of Appeals Relied, to StateLaws that Conflict with ExecutiveAgreements .....................

C. The Decision Below Directly Conflictswith this Court’s Decision in Medellin

III.This Case Presents an Issue of Wide-Ranging Practical Importance Relatingto the President’s Power over State Law

IV. Conclusion ..........................

Page

13

17

18

19

23

iii

TABLE OF CITED AUTHORITIESPage

Cases:

American Insurance Association v. Garamendi,539 U.S. 396 (2003) .....................passim

Barclays Bank PLC v. Franchise Tax Board,512 U.S. 298 (1994) ....................... 4, 16

Breard v. Greene,523 U.S. 371 (1998) ....................... 4, 16

Dames & Moore v. Regan,453 U.S. 654 (1981) ...................4, 9, 12, 18

In re Assicurazioni Generali S.p.A.Holocaust Insurance Litig.,228 ESupp.2d 348 (S.D.N.Y.2002) .......... 12

In re Assicurazioni Generali S.p.A.,592 E3d 113 (2d Cir. 2010) ......... 2, 7, 11, 12, 13

Medellin v. Texas,552 U.S. 491 (2008) .....................passim

Movsesian v. Victoria Versicherung AG,578 E3d 1052 (9th Cir. 2009) ............... 5

United States v. Belmont,301 U.S. 324 (1937) .......................12, 18

Cited AuthoritiesPage

United States v. Pink,315 U.S. 203 (1942) ....................... 12

Youngstown Sheet & Tube Co. v. Sawyer,343 U.S. 579 (1952) ............... 8, 9, 10, 15, 23

Zschernig v. Miller,389 U.S. 429 (1968) ....................... 11

United States Constitution:

Article I, Sec. 1 ............................ 3, 7

Article I, Sec. 7 ............................ 6

Article I, Sec. 10 ........................... 11

Article II .................................. 10, 11

Article II, Sec. 1 ........................... 3, 7

Article VI ............................... passim

Cited Authorities

Page

Other:

Brief of the United States Supporting Petitioner,Medellin v. Texas, No. 06-984, June 28, 2007,2007 WL 19094262 ....................... 3, 14

Bradford Clark, Separation of Powers as aSafeguard of Federalism, 79 Tex. L. Rev.1321 (2001) .............................. 22

Brannon P. Denning and Michael D. Ramsey,American Insurance Association v.Garamendi and Executive Preemption inForeign Affairs, 46 Wm. & Mary L. Rev. 825(2004) ................................... 8

James Madison, Alexander Hamilton and JohnJay, The Federalist Papers, No. 47 (IsaacKramnick, ed., 1987) ................ 3, 7, 8,15, 23

Michael D. Ramsey, The Constitution’s Text inForeign Affairs 91-114 (Harvard U. Press2007) ................................... 8

Michael Van Alstine, Executive Aggrandizementin Foreign Affairs Lawmaking, 54 UCLA L.Rev. 309 (2006) ........................... 21

vi

LI ST OF AMICI CURIAE

Brannon P. Denning is Professor of Law at SamfordUniversity Cumberland School of Law.

John O. McGinnis is Stanford Clinton Sr. Professor ofLaw at Northwestern University Law School.

David H. Moore is Professor of Law at Brigham YoungUniversity J. Reuben Clark Law School.

Michael D. Ramsey is Professor of Law at the Universityof San Diego School of Law.

Michael P. Van Alstine is Professor of Law at theUniversity of Maryland School of Law.

Stephen I. Vladeck is Professor of Law at AmericanUniversity Washington College of Law.

A. Mark Weisburd is Martha M. Brandis Professor ofLaw at the University of North Carolina School of Law.

Ingrid Brunk Wuerth is Professor of Law at VanderbiltUniversity Law School.

Ernest A. Young is Alston & Bird Professor of Law atDuke University Law School.

INTEREST OF AMICI CURIAEThis brief amlci curiae is respectfully submitted

by law professors with expertise in constitutionallaw and the foreign relations law of the UnitedStates. Amici submit this brief because theybelieve that the petition in the present case raisesimportant issues of separation of powers andfederalism on which guidance from this Court isneeded. In particular, amici believe that thedecision of the Court of Appeals below undulyexpands federal executive authority relative to thestates and Congress, contrary to this Court’sdecision in Medellin v. Texas, 552 U.S. 491 (2008),and to the fundamental allocations of powercontained in the U.S. Constitution. The Medellindecision emphasizes the U.S. President’s inabilityto make binding and preemptive law through merepolicy announcements. However, the court below,along with at least one other major post-Medellincourt of appeals decision, nonetheless accordspreemptive effect to unilateral executive foreignpolicy unsupported by any statute, treaty orexecutive agreement. Amiei submit this brief tohighlight the importance of the petition tofundamental constitutional principles regardingthe scope of federal executive power vis-h-vis thelaws of the states.

’ No counsel for a party authored this brief in whole or in part, and nosuch counsel or party or any other person other than amici curiae, ortheir counsel, made a monetary contribution intended to fund thepreparation or submission of this brief. The parties have been given atleast 10 days notice of amici curiae’s intention to file. Consents of theparties are on file or are being lodged herewith.

2

STATEMENT ANDSUMMARY OF ARGUMENT

This case raises important and recurring is-sues of federalism and separation of powers regard-ing the U.S. President’s unilateral authority topreempt the laws of the states. The Court of Ap-peals below, on the authority of this Court’s deci-sion in American Insurance Association v. Gara-mendi, 539 U.S. 396 (2003), held that a mere execu-tive branch foreign policy, not incorporated into anyfederal statute, treaty, or executive agreement,preempts otherwise-constitutional state laws asapplied to Petitioner’s claims. In re AssicurazioniGeneral1 ,.~.p.A., 592 F.3d 113 (2d Cir. 2010). TheCourt of Appeals’ holding conflicts directly withthis Court’s decision in Medellin v. Texas, 552 U.S.491 (2008). In Medelli~, this Court held that thePresident’s announced policy that the UnitedStates would comply with a decision of the Interna-tional Court of Justice (ICJ) did not override a Tex-as state law that conflicted with the ICJ decision.Id. at 524-32. Medellin expressly rejected the Pres"ident’s preemption argument, to the extent it wasbased on the Garar~endi decision, on the groundthat Garamendi involved conflict between a statelaw and two executive agreements. Because therewas no relevant executive agreement in Mede!!in,this Court held, Garame~di did not supportpreemption of Texas’ law by executive policy. Id. at530-32.

This Court’s decision in Mede111~ reaffirmsbasic constitutional principles of separation of pow-ers and federalism. First, a central principle of fe"deralism is that state law is valid unless it is incon-

3

sistent with the U.S. Constitution or in conflictwith an act of federal lawmaking. Article VI of theConstitution establishes the Constitution and fed-eral laws and treaties as "supreme Law of theLand" and thus superior to state law. Mere presi"dential policies are not accorded such status.Second, a central principle of separation of powersis that the President is not a lawmaker. The Con"stitution grants the President "the executive Pow-er," U.S. Const. Art. II, Sec. 1; in contrast, Congressholds "[a]ll legislative Powers herein granted."U.S. Const., Art. I, Sec. 1. The core meaning of"ex-ecutive Power" is that the President executes lawmade by others. As James Madison explained inFederalist 47, "[t]he magistrate in whom the wholeexecutive power resides cannot of himself make alaw." James Madison, Alexander Hamilton andJohn Jay, The Federalist Papers, No. 47 (IsaacKramnick, ed., 1987), at 304, quoted in Medellin,552 U.S. at 528.

The combination of these principles, thisCourt concluded in Medellin, rejects the contention,advanced by the President in that case, that thePresident through the articulation of foreign policycan "establish binding rules of decision thatpreempt contrary state law." See Brief of the Unit-ed States Supporting Petitioner, Medellin v. Texas,June 28, 2007, 2007 WL 19094262 (making this ar-gument). To accept the President’s argument, thisCourt explained, would make the President a law"maker, contrary to the President’s constitutionalstatus as the holder of executive power. See Medel"lin, 552 U.S. at 524-32.

Although there may be limited exceptions -specifically, certain executive agreements made

4

with Congress’ implicit approval, see Dames &Moore v. Regan, 453 U.S. 654 (1981) - Medellinmakes clear that Garamendi does not broadly over-turn these basic constitutional principles with re-spect to all executive branch foreign policy in theway imagined by the Court of Appeals. To the con-trary, Medellin reaffirms that, despite Garamendi,the basic rule remains that executive policies do notpreempt state law unless and until they achieve thestatus of supreme law in the manner specified byArticle VI. See Medelh’n, 552 U.S. at 531 (describ-ing Garamendi and related cases as "involv[ing] anarrow set of circumstances: the making of execu-tive agreements to settle civil claims betweenAmerican citizens and foreign governments or for-eign nationals"); see also Barclays Bank PLC v.Franchise Tax Board, 512 U.S. 298, 328-29 (1994)(finding that "Executive Branch communicationsthat express federal policy but lack the force of lawcannot render unconstitutional California’s other-wise valid, congressionally condoned [tax laws].");Breard v. Greene, 523 U.S. 371, 378 (1998) (findingthat the President could only ask, but not require,Virginia to comply with a provisional order fromthe ICJ).

As a result, the decision below directly con-flicts with Medellin. Like the state law in Medel"lin, the state laws under which Petitioner broughthis claims are clearly constitutional, and indeed(unlike in Garamendl) most of them are part of thestate’s ordinary and generally applicable contractand insurance law (as the law in Medellin was partof Texas’ ordinary and generally applicable crimi-nal law). As in Medellin, there is no apphcable fed-eral statute, treaty or executive agreement with

5

which the state laws in the present case conflict.As in Medellin, the only conflict claimed by thecourt below is between the state laws and an execu-tive branch foreign policy. Basic constitutionalprinciples, reaffirmed in Medelh’n, make clear thatsuch a conflict is insufficient to override rights es"tablished under state law.

This is an issue of recurring importance war-ranting this Court’s granting of a writ of certiorari.In addition to the decision below, at least one otherpost’Medellln court of appeals decision has, despiteMedelli~ and on the authority of Garame~di, givenpreemptive effect to mere presidential policy un-supported by any federal law, treaty or executiveagreement. Movsesian v. Victoria VersicherungAG, 578 F.3d 1052 (9th Cir. 2009). On the otherhand, as the petition here highlights, other courtshave - like Medellin- read Garamendi to apply on-ly to conflicts with certain executive agreementsand have not recognized preemption by mere execu-tive branch policy. ~ee Petition for a Writ of Certi"orari, Weiss v. Assicurazioni Generali S.p.A., No.10-80, at 10-11 (citing cases). Granting reviewwould allow this Court to clarify this fundamentalconstitutional relationship between federal execu-tive power, federal lawmaking power, and statelaw.

ARGUMENT

THE DECISION BELOW CONFLICTSWITH BASIC PRINCIPLES OF SEPARA-TION OF POWERS AND FEDERALISM

6

Ao The Constitution’s Basic Principles ofSeparation of Powers and FederalismRequire that Mere Presidential Poli-cies Cannot Displace Otherwise-Constitutional State Law.

The U.S. Constitution sets forth two basicprinciples of federalism and separation of powersthat govern this case. First, state law is valid un-less displaced by a superior source of federal law.Second, the President is not a lawmaker.

The first principle is established by the Con"stitution’s Article VI, which provides that the Con-stitution, the "Laws of the United States whichshall be made in Pursuance thereof," and federaltreaties make up the "supreme Law of the Land."U.S. Const., Art. VI, cl. 2. Thus under Article VI,state law can be displaced by "supreme" federal lawin two (but only two) ways: if the Constitution itselfprohibits the state from acting, or if an act of su-preme federal lawmaking overrides the state’s law.Further, in addition to the Constitution itself, su-preme federal law arises from treaties and lawsmade "in pursuance of’ the Constitution; the Con-stitution’s Article I, Section 7 in turn specifies theprocedures by which federal law is made.

Article VI and Article I, Section 7 imposesubstantial procedural hurdles for the creation offederal law. It must be done (a) with the approvalof majorities of both of the two separately-electedhouses of Congress and of the President, (b) with asupermajority of both houses, or (c) in the case oftreaties, with the approval of the President plus asupermajority of the Senate. These hurdles safe"guard state interests and protect the Constitution’s

7

federal structure, assuring that state laws are notdisplaced unless multiple federal actors agree thatthey should be.2

Under the second principle, as a matter ofseparation of powers the Constitution’s designationof the President as holding "the executive Power,"U.S. Const., Art. II, Sec. 1, shows the President’slack of independent lawmaking power. CompareU.S. Const., Art. I., Sec. 1 (stating that "[a]ll legis-lative Powers herein granted" shall be vested inCongress). While the precise scope of the Presi-dent’s "executive Power" may remain unclear, acommon core understanding is that the Presidentcannot unilaterally make law (that is, change indi-vidual legal rights and duties); to the contrary, thePresident’s core power and authority is to executelaws made by others. The Constitution’s framerssaw this limit as an important check on the power-ful executive office they created, and they derived itfrom an equally central feature of English constitu-tional law, which held that the king could not makelaw without Parliament’s consent. See 1 WilliamBlackstone, Commentaries on the Laws of England142-43, 261 (1765); 4 id. at 67. As James Madisonexplained in Federalist 47, "[t]he magistrate inwhom the whole executive power resides cannot ofhimself make a law." James Madison, Alexander

2As discussed below, this Court has recognized that in "a narrow set of

circumstances" state law may be preempted by certain executiveagreements to which Congress has implicated assented. See Medellin,552 U.S. at 531. As the Court of Appeals recognized, 592 F.3d at 118-19, no executive agreement conflicts with Petitioner’s claims in thiscase.

8

Hamilton and John Jay, The Federalist Papers, No.47(Isaac Kramnick, ed., 1987), at 304.3

These basic principles came together in thisCourt’s most celebrated case on presidential power,Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.579 (1952). In that case, President Harry Trumanby executive order directed the seizure of majorU.S. steel mills due to an impending strike in orderto avoid an interruption of military supplies to theon’going war effort in Korea. This Court found thePresident’s order to be an unconstitutional law-making act.

Justice Black’s opinion for the Court as-sumed the first proposition described above: thatstate law governed unless displaced by federal law.The mill owners held property rights under statelaw. Absent a conflicting federal act, the state lawwas obviously constitutional and formed the base-line of the mill owners’ rights. The question in thecase was whether any federal act displaced thestate law. Since there was no conflicting treaty oract of Congress, the question was whether the Pres-ident’s order had that effect.

This Court held that it did not, applying thebasic proposition that the President was not alawmaker. As Justice Black wrote for the Court:

In the framework of our Constitution, thePresident’s power to see that the laws are

3 See Michael D. Ramsey, The Constitution’s Text in ForeignAffairs 91"114 (Harvard U. Press 2007); Brannon P. Denningand Michael D. Ramsey, American Insurance Association v.Garamendi and Executive Preemption in Foreign Affairs, 46Win. & Mary L. Rev. 825, 906-24 (2004).

9

faithfully executed refutes the idea that he isto be a lawmaker. The Constitution limitshis functions in the lawmaking process to therecommending of laws he thinks wise andthe vetoing of laws he thinks bad. And theConstitution is neither silent nor equivocalabout who shall make laws which the Presi-dent is to execute. The first section of thefirst article says that "All legislative Powersherein granted shall be vested in a Congressof the United States ...."

Id. at 587-88.4Although Justice Black’s opinion did not ful-

ly explain why the Court regarded the President’sact as a lawmaking act, the answer is evident: thePresident’s order in Youngstown sought to changerights under existing law. Because state law wasthe baseline, the mill owners had a legal right totheir property which the President sought to alter.For this reason, if mere presidential policy were tobe preemptive, that would grant lawmaking powerto the President.

4 Justices Jackson and Frankfurter (among others) concurredto suggest some flexibility in the extent of executive power,but they did not dispute Justice Black’s central premise thatthe President is not a lawmaker. In particular, Justice Jack-son’s concurrence suggested that the President might havegreater latitude in certain cases when Congress has approvedthe President’s action. See Dames & Moore v. Regan, 453U.S. 654 (1981). There is no argument, however, that in thepresent case that the President has taken any formal actionconcerning claims against Italian companies such as Genera-li, much less that Congress has approved any such action.

10

In sum, the core constitutional problem inYoungstown was that the President tried to makeexecutive policy superior to existing state law.Both Article II and Article VI show this to bebeyond the President’s power. Under Article II, thePresident, like the eighteenth-century English mo-narch, cannot use "executive" power to issue de"crees with the force of law. Article VI confirms thislimit by setting forth the ways the federal govern-ment can act with the force of supreme law and byconfining the President’s lawmaking role to actionin conjunction with one or both houses of Congress.

The Decision Below Conflicts with Ba-sic Constitutional Principles by GivingPreemptive Effect to Mere Presiden-tial Policy.

In the decision below, the Court of Appealsdeparted from these basic constitutional principlesby giving preemptive effect to mere executivebranch policy. Petitioner, who is the heir of Holo-caust survivors, brought suit under various provi-sions of state law against Respondent AssicurazioniGenerali S.p.A. and related entities ("Generali") torecover on insurance policies Generali issued to hisdecedents before or during the Holocaust. The U.S.executive branch has been involved for many yearsin supporting an international non’governmentalbody, the International Commission on Holocaust"Era Insurance Claims ("ICHEIC"), to settle Holo"caust-era insurance claims. The Court of Appealsfound that an executive branch policy of resolvingclaims through ICHEIC preempted state law as

11

applied to Petitioner’s case. In re AssicurazioniGonoraliS.p.A, 592 F.3d at 118-19.

As the Court of Appeals recognized, no ordi-nary source of preemptive federal law conflicts withthe state laws in the present litigation. The Con-stitution itself prevents states from acting in cer"tain foreign affairs categories, either explicitly(chiefly in Article I, Section 10)5 or by implication.However, none of these constitutional provisionsimplicates the state laws at issue here.6 In addi-tion, Article VI establishes treaties and statutes aspreemptive federal law by making them (along withthe Constitution itself) part of the "supreme Law ofthe Land." Again, it is not argued that the statelaws at issue here conflict in any way with any fed"eral statute or treaty.

Finally, there is no conflict between Petition-er’s state-law claims and any applicable executiveagreement. Although executive agreements (inter-national agreements not made through the treaty-making process of Article II) fit uncomfortably with

5 Article I, Section 10 hsts certain specific actions the statescannot take, or can take only with Congress’ consent, such asengaging in war or making treaties and other internationalagreements.

6 In Zschernig v. Mlller, 389 U.S. 429 (1968), this Court foundthat the Constitution implicitly precluded some state intru-sions into U.S. foreign affairs whether or not they conflictedwith announced U.S. foreign policy. The Court of Appeals didnot rely on Zscherrzig, which appears bruited to situations inwhich a state law directly insults or passes judgment upon aparticular foreign government. That circumstance is plainlynot imphcated here.

12

the sources of preemptive law described in ArticleVI, this Court’s prior decisions recognize that incertain circumstances executive agreements mayhave a preemptive effect akin to that of treaties.See Dames & Moore v. Regan, 453 U.S. 654 (1981);United States v. Pink, 315 U.S. 203 (1942); UnitedStates v. Belmont, 301 U.S. 324 (1937); see alsoMedellin, 552 U.S. at 531"32 (noting that "in a nar"row set of circumstances" executive agreementshave been regarded as preempting state law). Inthe present ease, however, there is no governingexecutive agreement. The U.S. President has en"tered into executive agreements relating to Hole"eaust-era insurance claims with Germany and Aus-tria; Generali is an Italian company and the U.S.President has not entered into any executiveagreement with Italy in this regard. See In re As"sicurazioni General1, 592 F.3d at 118-119 (express-ly concluding that the absence of an executiveagreement did not preclude preemption); In re As-sicurazioni Generali S.p.A. Holocaust Insurance Li"rig., 228 F.Supp.2d 348, 358 (S.D.N.Y.2002) (find-ing that "no executive agreement at issue in thisease could be read to preclude litigation of [Peti-tioner’s] claims in U.S. courts").

Nonetheless, on the strength of this Court’sdecision in American Insurance Association v. Ga"ramendi, the Court of Appeals found that an execu-tive branch poh’cy of resolving claims (includingclaims against Generali) through ICHEICpreempted Petitioner’s state law claims. See In reAssicurazioni Generali, 592 F.3d at 118-119 (re-peatedly describing the state law claims as conflict-ing with executive "policy"). As the Court of Ap-peals made clear, the holding below was based di-

13

rectly on reading Garamendi to allow preemptionby executive policy even absent a governing execu-tive agreement. Id. at 119 (asserting that thisCourt in Garamendi "did not view the existence ofan executive agreement as a prerequisite" to execu-tive branch policy preemption).

The Court of Appeals’ expansive reading ofGaramondi conflicts with the basic constitutionalprinciples set forth above. As described in the nextsection, it also squarely conflicts with this Court’sdecision in Modellln (which the Court of Appealsdismissed without explanation in a one-sentencefootnote, see 592 F.3d at 119 n.2).

II. MEDELLIN V. TEXA~ REAFFIRMEDTHAT MERE PRESIDENTIAL FOREIGNPOLICY DOES NOT DISPLACE STATELAW AND REJECTED BROAD READINGSOF GARAMENDITO THE CONTRARY

Ao In MedelIi~, this Court Refused toFind a State Law Preempted by aMere Presidential Foreign Policy

This Court recently reaffirmed the foregoingconstitutional principles as applied to presidentialforeign policy in MedelJ~’~ v. Texas, 552 U.S. 491(2008). In Mede111~, this Court - rejecting argu-ments by the executive branch that closely parallelthe Court of Appeals’ reasoning in the present case- held that even a "plainly compelling" presidentialforeign policy, see 552 U.S. at 524, could not dis-place an otherwise-valid state law. See id. at 524-32.

14

The President argued in Mede]11~ that thePresident’s policy that the United States wouldcomply with an International Court of Justice (ICJ)judgment should displace a provision of Texas crim-inal procedure that conflicted with the ICJ judg-ment. See id. at 523-24. Jose Medellin, the peti"tioner and a Mexican national, had been convictedand sentenced to death in Texas state court. In acase brought by Mexico on his behalf, the ICJ heldthat he was entitled to have his sentence reconsi-dered because he had not been afforded his rightsunder an applicable treaty, the Vienna Conventionon Consular Relations. The Texas courts held thatTexas law did not permit such reconsideration.

This Court and the President agreed that theICJ judgment was not self’executing and thus notdirectly enforceable as preemptive federal law. Seeid. at 507-23. However, as this Court recounted,"President George W. Bush determined, through aMemorandum to the Attorney General ... that theUnited States would ’discharge its internationalobligations’ under [the ICJ judgment] ’by havingState courts give effect to the decision.’" Id. at 503,quoting the President’s memorandum of Feb. 28,2005. According to the President, the presidentialpolicy reflected in this memorandum displacedTexas’ state law and entitled Medellin to a newhearing on his sentence. See Brief of the UnitedStates Supporting Petitioner, Medellin v. Texas,June 28, 2007, 2007 WL 19094262 (arguing thatthe President by announcing U.S. foreign policy haspower to "establish binding rules of decision thatpreempt contrary state law.").

This Court flatly rejected the claim that thePresident had unilateral power to preempt Texas

15

law in order to enforce a non-self-executing treaty.In doing so, this Court tied the question directly tothe question of presidential lawmaking powers:

Once a treaty is ratified without provisionsclearly according it domestic effect ... wheth"er the treaty will ever have such effect is go-verned by the fundamental constitutionalprinciple that "’It]he power to make the ne-cessary laws is in Congress; the power to ex-ecute in the President.’" [quoting Harndan v.Rurnsfeld, 548 U.S. 557 (2006), internal quo-tation omitted]; see U.S. Const., Art. I, § 1("All legislative Powers herein granted shallbe vested in a Congress of the UnitedStates"). As already noted, the terms of anon’self’executing treaty can become domes"tic law only in the same way as any otherlaw--through passage of legislation by bothHouses of Congress, combined with eitherthe President’s signature or a congressionaloverride of a Presidential veto. See Art. I, §7.

Medellin, 552 U.S at 526. Thus this Court’s conclu-sion proceeded in two steps: (1) converting a non-self-executing treaty into a domestic legal obliga-tion that preempts state law is a lawmaking act;and (2) the President is not a lawmaker. This ap-proach follows directly from this Court’s opinion inYoungstown, and this Court in Medellin quotedJustice Black’s observation in Youngstown that’"the President’s power to see that the laws arefaithfully executed refutes the idea that he is to bea lawmaker."’ Id., quoting Youngstown, 343 U.S. at587. Medellin also invoked Madison’s statement inFederalist No. 47 that "It]he magistrate in whomthe whole executive power resides cannot of himself

16

make a law" and pointedly observed "[t]hat would... seem an apt description of the asserted executiveauthority unilaterally to give the effect of domesticlaw to obligations under a non-self-executing trea-ty." MedeIli~, 552 U.S. at 527"28.

In reaching this conclusion, this Court re-jected executive branch arguments that the Presi-dent’s constitutional foreign affairs powers includepower to "establish binding rules of decision thatpreempt contrary state law." That claim, thisCourt held, violated the "fundamental constitution-al principle that ’[t]he power to make the necessarylaws is in Congress; the power to execute in thePresident.’" Id. at 526. This Court reached thatconclusion, moreover, even though it acknowledgedthe "plainly compelling~’ importance to U.S. foreignaffairs of the decision whether or not to complywith the ICJ judgment. Id. at 524.

In sum, the Mede111~ decision strongly reaf-firms the proposition that, even in matters poten"tially affecting foreign affairs, the President cannotmake law and otherwise-valid state law cannot bedisplaced by mere presidential foreign policy.7

~ The result in Medelb’~ comports with this Court’s prior deci-sions addressing the question. See Barclays Ban]~ PLC v.Francl~’se Tax Board, 512 U.S. 298, 328-29 (1994) (findingthat "Executive Branch communications that express federalpolicy but lack the force of law cannot render unconstitutionalCalifornia’s otherwise valid, congressionally condoned [taxlaws]."); Breard v. Greene, 523 U.S. 371, 3’78 (1998) (findingthat the President could only ask, but not require, Virginia tocomply with a provisional order from the ICJ).

17

This Court’s Decision in Medellin Lim-its Ame~can Insurance Association v.Garamen&~ on which the Court of Ap-peals Relied, to State Laws that Con-flict with Executive Agreements

The Court of Appeals below relied heavily onAmerican Insurance Association v. Garamendi toconclude that executive branch policy, even if notreflected in an executive agreement, preempts statelaw. See 592 F.3d at 118-119. As Medellin makesclear, however, Garamendi should not be read sobroadly. The executive branch advanced exactlythe same reasoning in Medellin as the Court of Ap"peals employed here, and this Court expressly re-jected it.

In Garamendi, this Court held that a Cali-fornia law governing Holocaust-era insurance con"tracts was preempted by the executive policy re-flected in executive agreements with Germany andAustria relating to ICHEIC and to Holocaust-eraclaims against German and Austrian companies.Garamendi, 539 U.S. at 423-28. The Court of Ap-peals below read Garamondi to endorse a broad ex"ecutive foreign policy preemption not limited to theeffect of particular executive agreements, and re-lied on this reading of Garamendi in holding Peti-tioner’s state law claims to be preempted. See 592F.3d at 118"119.

However, this Court’s decision in Medellinexpressly rejected a broad reading of Garamendi.In Medellin, the executive branch relied heavily ona broad reading of Garamendi- akin to the readingadopted by the Court of Appeals in the present case- to support its claim of executive foreign policy

18

preemption. In response, this Court, in addition torejecting the executive’s position on broader consti"tutional principles, directly addressed Garamendiand described a much more limited view of Gara-mendis holding. Garamendi, this Court explained,rested centrally on the presence of the German andAustrian executive agreements, and thus followeddirectly from prior cases such as Dames & Mooreestablishing the preemptive effect of certain execu-tive agreements. As this Court put it, Garamendiwas one of"a series of cases in which this Court hasupheld the authority of the President to settle for-eign claims pursuant to an executive agreement."Id. at 530"31 (citing Dames & Moore, Pink, andBelmont, all of which involved preemptive execu"tive agreements). "The claims’settlement cases,"this Court continued, "involve a narrow set of cir-cumstances: the making of executive agreements tosettle civil claims between American citizens andforeign governments or foreign nationals." Id. at531 (emphasis added). Moreover, the MedellinCourt added, these prior cases relied on congres-sional assent to the President’s longstanding prac"tice of making such executive agreements, and "thelimitations on this source of executive power areclearly set forth." Id. Thus, this Court concluded,Garamendi had no force in a case such as Medellin,where there was no executive agreement, but onlyan executive branch foreign policy. Id.

The Decision Below Directly Conflictswith this Court’s Decision in Medellln

The decision below, relying on Garamendi inthe absence of an executive agreement and finding

19

that mere executive branch policy preempts statelaw, fundamentally conflicts with this Court’s deci-sion in Medellin. As discussed, MedelIin held thatthe President’s policy that states would complywith the ICJ’s order, as reflected in a presidentialmemorandum but not otherwise incorporated intofederal law, did not preempt a Texas law that con"fiicted with the ICJ’s order. Further, this Court inMedellin noted that Garamendi was not to the con-trary, because Garamendi involved the President’spower to settle claims "pursuant to an executiveagreement." 552 U.S. at 530-31.

The Court of Appeals below failed to addressMedellin directly, dismissing it in a non-substantive footnote. See 592 F.3d at 119 n.2 (cit-ing Medellin and finding, without explanation,"nothing inconsistent" with its decision). But Peti-tioner’s rights under state law can be displaced on-ly by holding (as the Court of Appeals did) thatmere executive branch "policy," not incorporatedinto any executive agreement, is preemptive. Seeid. (expressly finding that an executive agreementis "not a prerequisite" to preemption by executivepolicy). That proposition is exactly what this Courtrejected in Medellin. As discussed above, in Medel-lin the President announced a policy that the stateswould comply with the ICJ’s order, but this Courtfound that policy not to preempt conflicting Texasstate law because the policy was not supported by afederal lawmaking act.

III. This Case Presents an Issue of Wide-Ranging Practical Importance Relating tothe President’s Power over State Law

2O

The decision below, which appears to set nolimits on the President’s ability to displace statelaw pursuant to unilateral executive branch policy,would fundamentally alter both the relationshipbetween the President and the states, and the rela-tionship between the President and Congress. Be-cause there are few institutional checks upon thePresident’s ability to formulate policy, the deci-sion’s practical effect would be to grant the Presi-dent a general supervisory power over state laws.

This case in particular illustrates the dan-gers of such a result. Under the Court of Appeals’ruling, a mere indication of policy from the execu"tive branch - even, as in the present case, an indi"rect or informal indication not made by the Presi"dent himself- can displace state law. In contrast,if at minimum a valid, congressionally-approvedexecutive agreement is required for preemption, in"stitutional limits may be maintained because thePresident must act formally, in concert with a for-eign nation, pursuant to a commitment that be-comes binding on the nation under internationallaw, and with implicit congressional authorization,s

Further, the Court of Appeals appeared notto impose any limits on the kind of state law sub"

$ To be clear, this case does not raise, and this brief takes no positionon, the question of the circumstances under which an executive agree-ment can be preemptive of state law. This Court in Medellin noted thatits prior cases giving certain executive agreements preemptive effectinvolved a "narrow set of circumstances" as well as implicit congres-sional approval. See Medellin, 552 U.S. at 531. In the present case, asthe Court of Appeals acknowledged, there is no executive agreement ofany sort in conflict with the state laws under which Petitioner’s claimsare raised.

21

ject to executive preemption. Most of the state lawson which Petitioner’s claims are based are laws ofgeneral application, not specifically directed towardHolocaust-era claims or indeed any foreign affairsmatters. They are simply ordinary state laws ofcontract and insurance.9 In today’s interconnectedand globalized world, the President may plausiblyclaim that any state law, no matter how central tothe state’s own internal affairs, implicates the Pres-ident’s foreign policy and thus may be preemptedon presidential say’so.

As a result, the decision below would, acrossa broad range of subjects and policies, substantiallyshift power to the President at the expense of Con-gress and the states. As described, the Constitu-tion protects states by establishing a complex fed-eral lawmaking process which must be navigatedbefore preemptive law is made. Indeed, a funda-mental protection for federalism values is that fed-eral law can be made only through these difficultprocedures. A leading academic commentary ex-plains:

Although the Supremacy Clause performsthe familiar function of securing the primacyof federal law over contrary state law, it alsonecessarily constrains the exercise of federalpower by recognizing only three sources oflaw as "the supreme Law of the Land." ....

9See Michael Van Alstine, Executive Aggrandizement in Foreign Af-

fairs Lawmaking, 54 UCLA L. Rev. 309, 350 (2006) (noting "the im-portant distinction ... between a prohibition on targeted state obstruc-tion of external affairs and the power of the national government todisplace neutral state laws of general application in areas of traditionalstate competence").

22

The Founders, in turn, prescribed finelywrought and exhaustively considered proce-dures elsewhere in the Constitution to go-vern the adoption of each type of law recog-nized by the Supremacy Clause .... [F]ederallawmaking procedures ... preserve federal-ism both by making federal law more diffi-cult to adopt, and by assigning lawmakingpower solely to actors subject to the politicalsafeguards of federalism. The text, struc-ture, and history of the Constitution, moreo-ver, suggest that these procedures weremeant to be the exclusive means of adopting"the supreme Law of the Land." Permittingthe federal government to avoid these con"straints would allow it to exercise more pow"er than the Constitution contemplates, at theexpense of state authority.

Bradford Clark, Separation o£ Powers as a Sa£e"guard o£Federalism, 79 Tex. L. Rev. 1321, 1323(2001). Allowing mere presidential policy topreempt state law, as the President advocated un-successfully in Mede111n, and as the Court of Ap"peals below permitted, circumvents these protec-tions the Constitution established for the states.

The decision below also enhances presiden-tial power at the expense of Congress. The Consti"tution limits the President’s power relative to otherbranches of the federal government by assuringthat if the President wants presidential policies tohave legally binding effect, the President must se-cure the cooperation of Congress (or of two-thirds ofthe Senate in the case of treaties). This provides apowerful check upon unilateral presidential policy.As discussed, under eighteenth-century English

23

law, leading authorities such as Blackstone - whoin turn heavily influenced the American framers -saw an essential guarantee of liberty in the ancientrule that the monarch could not make law by de"cree. Not surprisingly, in creating and explainingthe office of the Presidency, the framers adoptedand invoked the fundamental rule that, as in Eng-land, the holder of executive power could not "ofhimself make a law." Madison, supra, at 304. Thatpower they instead assigned to Congress. Corres-pondingly, the question whether individual rightsestablished under otherwise’constitutional statelaw should be displaced in the national interest isfundamentally a question for Congress. SeeYoungstown, 343 U.S. at 587-88. The decision be"low would, across a broad range of cases, reallocateit to the President.

As a result, the decision below has funda-mental constitutional ramifications far beyond itsparticular facts. By reading Gar~mendi broadly,without attention to the limits this Court empha-sized in Medellin, the decision below would allowthe President alone to decide which state lawsshould and should not remain in effect. Certiorariis warranted to clarify the limits of the President’sability to displace state law by executive "policy,"see 592 F.3d at 118-119, unsupported by any feder-al lawmaking act.

IV. CONCLUSION

Amiei respectfully urge that this Court granta writ of certiorari to address the important issuesof separation of powers and federalism raised bythe petition.

24

Respectfully submitted,

MICHAEL D. RAMSEY*University of San Diego

School of Law5998 Alcala ParkSan Diego, CA 92110(619) 260-4145mramsey@sandiego.edu

MICHAEL E. EISNERJOHN M. EUBANKSMOTLEY RICE LLC28 Bridgeside Blvd.Mt. Pleasant, SC 29464(843) 216-9000

* Counsel of Record

August 13, 2010