Amicus Curiae Brief — Weiss v. Assicurazioni Generali, S.p.A.

Supreme Court, U.S.

FILEN

\ob No. 10-80 AUG 13 2010

OFFICE Cc: sre vt ERK

IN THE

Supreme Court of the United States

i sdiaeianeneail

DR. THOMAS WEISS,

Petitioner,

v.

ASSICURAZIONI GENERALI, S.PA. and

BUSINESS MEN’S ASSURANCE

COMPANY OF AMERICA,

Respondents.

On PETITION FOR A Writ OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF AMICI CURIAE OF

PROFESSORS OF CONSTITUTIONAL LAW AND

FOREIGN RELATIONS LAW IN SUPPORT OF THE

PETITION FOR A WRIT OF CERTIORARI

MICHAEL D. RAMSEY* MICHAEL E. EXLSNER

UNIVERSITY OF SAN DiEGO JOHN M. EUBANKS

SCHOOL OF LAw Mot Ley Rice LLC

5998 Alcala Park 28 Bridgeside Blvd.

San Diego, CA 92110 Mt. Pleasant, SC 29464

(619) 260-4145 (843) 216-9000

mramsey@sandiego.edu

Counsel for Amici Curiae

* Counsel of Record

l

TABLE OF CONTENTS

TABLE OF CITEDAUTHORITIES .........

LIST OF AMICI CURIAE ,...........0eeees

I.

IT.

The Decision Below Conflicts With Basic

Principles Of Separation Of Powers And

EE

A. The Constitution’s Basic Principles of

Separation of Powers and Federalism

Require that Mere Presidential

Policies Cannot Displace Otherwise-

Constitutional State Law. .........

B. The Decision Below Conflicts with

Basic Constitutional Principles by

Giving Preemptive Effect to Mere

PROMIGONUA! POUCY, 0.00. cc cece nee

Medellin v. Texas Reaffirmed That Mere

Presidential Foreign Policy Does Not

Displace State Law And Rejected Broad

Readings Of Garamendi To The Contrary

6

10

ul

Contents

Page

A. In Medellin, this Court Refused to

Find a State Law Preempted by a

Mere Presidential .Foreign Policy .. 13

B. This Court’s Decision in Medellin

Limits American Insurance Associa-

tion v. Garamendi, on which the

Jourt of Appeals Relied, to State

Laws that Conflict with Executive

pr | PPPereTeT re rorerr rrr 17

©. The Decision Below Directly Conflicts

with this Court’s Decision in Medellin

e oes 8 e's 8.6 68) 6:84.26 6.8.6 8.2 8:8 82 6 64 2 2 8 8 4

18

III. This Case Presents an Issue of Wide-

Ranging Practical Importance Relating

to the President’s Power over State Law

19

686 8 64.68 6@ 8 6 6.46 66.868 6.8 8 888 86.6 86 686.8 8.84. 8 8

il

TABLE OF CITED AUTHORITIES

Page

Cases:

American Insurance Association v. Garamendi,

539 U.S. 396 (2003) .......... 0. cece wees passim

Barclays Bank PLC v. Franchise Tax Board,

DES Utd. BOO LEMOS) ccccccccsecesceseces .. 4,16

Breard v. Greene,

ee Ri edes TE CRO cas cee rv ewbssecice ewes 4, 16

Dames & Moore v. Regan,

ee Nene SI CUE? vos cus 0 otk bac ues 4,9, 12, 18

In re Assicurazioni Generali S.p.A

Holocaust Insurance Litigq.,

228 F.Supp.2d 348 (S.D.N.Y.2002) . 12

In re Assicurazioni Generali S.p.A.,

592 F.3d 113 (2d Cir. 2010) ......... 2, 7, 11, 12, 18

Medellin v. Texas,

552 U.S. 491 (2008) passim

Movsesian v. Victoria Versicherung AG,

578 esd 1052 (9th Cir. 2009) ... p

l/nited States v. Belmont,

301 U.S. 324 (1987) . wie .12, 18

lv

Cited Authorities

Page

United States v. Pink,

BED Si tle COORD bis vcccctecccvsoscceses 12

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ....... ccc ceees 8,9, 10, 15, 23

Zschernig v. Miller,

S89 U.S. 429 (19GB)... ccc cccccccccvees 1!

United States Constitution:

Ue Bees Evia ake t Fe ae ee he eendwee ve 3, 7

ee BO 2 rg ea one d. ce ae eck eee se wlarels (}

ee es Bs teks hans hav aee eke ean eee 1]

IE ta raed te 0 of) Sete ee eer ee 10, 1]

PPUICNO BE HOG. Bc ccc wacesevescceseuceesses 3,7

RP Ta eae sera ve sc cane ect sek e ene tees passim

Cited Authorities

Other:

Brief of the United States Supporting Petitioner,

Medellin v. Texas, No. 06-984, June 28, 2007,

BEE WU Es NEE gos io hie hese es ninten

Bradford Clark, Separation of Powers as a

Safeguard of Federalism, 79 Tex. L. Rev.

I gg oo a kw once ans eae we

Brannon P. Denning and Michael D. Ramsey,

American Insurance Association v.

Garamendi and Executive Preemption in

Foreign Affairs, 46 Wm. & Mary L. Rev. 825

ee a te eae ee 4 pea ee

James Madison, Alexander Hamilton and John

Jay, The Federalist Papers, No. 47 (Isaac

Michael D. Ramsey, The Constitution’s Text in

Foreign Affairs 91-114 (Harvard U. Press

ee ee oa ea eS eka ees:

Michael Van Alstine, Pwecutive Aggrandizement

in Foreign Affairs Lawmaking, 54 UCLA L.

ee Noa ye caewsae eae ens

Page

oo»)

ew ke

LIST OF AMICI CURIAE

Brannon P. Denning is Professor of Law at Samford

University Cumberland School of Law.

John O. McGinnis is Stanford Clinton Sr. Professor of

Law at Northwestern University Law School.

David H. Moore is Professor of Law at Brigham Young

University J. Reuben Clark Law School.

Michael D. Ramsey is Professor of Law at the University

of San Diego School of Law.

Michael P. Van Alstine is Professor of Law at the

University of Maryland School of Law.

Stephen I. Vladeck is Professor of Law at American

University Washington College of Law.

A. Mark Weisburd is Martha M. Brandis Professor of

Law at the University of North Carolina School of Law.

Ingrid Brunk Wuerth is Professor of Law at Vanderbilt

University Law School.

Ernest A. Young is Alston & Bird Professor of Law at

Duke University Law School.

INTEREST OF AMICT CURIAE

This brief amucr curiae is respectfully submitted

by law professors with expertise in constitutional

law and the foreign relations law of the United

States. Amici submit this brief because they

believe that the petition in the present case raises

important issues of separation of powers and

federalism on which guidance from this Court is

needed. In particular, amucit believe that the

decision of the Court of Appeals below unduly

expands federal executive authority relative to the

states and Congress, contrary to this Court's

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

and to the fundamental allocations of power

contained in the U.S. Constitution. The Medellin

decision emphasizes the U.S. President’s inability

to make binding and preemptive law through mere

policy announcements. However, the court below,

along with at least one other major post- Medellin

court of appeals decision, nonetheless accords

preemptive effect to unilateral executive foreign

policy unsupported by any statute, treaty or

executive agreement. Azzci submit this brief to

highlight the importance of the _ petition to

fundamental constitutional principles regarding

the scope of federal executive power vis-a-vis the

laws of the states.

‘No counsel for a party authored this brief in whole or in part, and no

such counsel or party or any other person other than amici curiae, or

their counsel, made a monetary contribution intended to fund the

preparation or submission of this brief. The parties have been given at

least 10 days notice of amici curiae's intention to file. Consents of the

parties are on file or are being lodged herewith.

_

9

STATEMENT AND

SUMMARY 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 to

preempt 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. CGara-

mend, 539 U.S. 396 (2003), held that a mere execu-

tive branch foreign policy, not incorporated into any

federal statute, treaty, or executive agreement,

preempts otherwise-constitutional state laws as

applied to Petitioner’s claims. J/n re Assicurazioni

Generali S_p.A., 592 F.3d 113 (2d Cir. 2010). The

Court of Appeals’ holding conflicts directly with

this Court’s decision in Medellin v. Texas, 552 U.S.

491 (2008). In Medellin, this Court held that the

President’s announced policy that the United

States 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 [CJ decision.

Id. at 524-32. Medellin expressly rejected the Pres-

ident’s preemption argument, to the extent it was

based on the Garamend decision, on the ground

that Garamendi involved conflict between a state

law and two executive agreements. Because there

was no relevant executive agreement in Mede//in,

this Court held, Garamendi did not support

preemption of Texas’ law by executive policy. Jd. at

530-32.

This Court’s decision in Medel/in reaffirms

basic 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 conflict

with an act of federal lawmaking. Article VI of the

Constitution establishes the Constitution and fed-

eral laws and treaties as “supreme Law of the

Land” and thus superior to state law. Mere presi-

dential policies are not accorded such status.

Second, a central principle of separation of powers

is that the President is not a lawmaker. The Con-

stitution grants the President “the executive Pow:

er,” U.S. Const. Art. I], Sec. 1; in contrast, Congress

holds “[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 law

made by others. As James Madison explained in

Federalist 47, “{t}he magistrate in whom the whole

executive power resides cannot of himself make a

law.” James Madison, Alexander Hamilton and

John Jay, The Federalist Papers, No. 47 (Isaac

Kramnick, ed., 1987), at 304, quoted in Medel/in,

552 U.S. at 528.

The combination of these principles, this

Court concluded in Mede//in, rejects the contention,

advanced by the President in that case, that the

President through the articulation of foreign policy

can “establish binding rules of decision that

preempt 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, this

Court explained, would make the President a law-

maker, contrary to the President’s constitutional

status 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

+

with Congress’ implicit approval, see Dames &

Moore v. Regan, 453 U.S. 654 (1981) — Medellin

makes clear that Garamendi does not broadly over-

turn these basic constitutional principles with re-

spect to all executive branch foreign policy in the

way imagined by the Court of Appeals. To the con-

trary, Medellin reaffirms that, despite Garamendl,

the basic rule remains that executive policies do not

preempt state law unless and until they achieve the

status of supreme law in the manner specified by

Article VI. See Medellin, 552 U.S. at 531 (describ-

ing Garamendi and related cases as “involvling] a

narrow set of circumstances: the making of execu-

tive agreements to settle civil claims between

American 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 communications

that express federal policy but lack the force of law

cannot render unconstitutional California’s other-

wise valid, congressionally condoned [tax laws].”):

Breard v. Greene, 523 U.S. 371, 378 (1998) (finding

that the President could only ask, but not require,

Virginia to comply with a provisional order from

the 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 brought

his claims are clearly constitutional, and indeed

(unlike in Garamend) most of them are part of the

state’s ordinary and generally applicable contract

and insurance law (as the law in Medellin was part

of Texas’ ordinary and generally applicable crim1-

nal law). As in Medellin, there is no applicable 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 the

court below is between the state laws and an execu:

tive branch foreign policy. Basic constitutional

principles, reaffirmed in Medel/rn, make ciear that

such 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 other

post: Medellin court of appeals decision has, despite

Medellin and on the authority of Garamendt, given

preemptive effect to mere presidential policy un-

supported by any federal law, treaty or executive

agreement. Movsesian v. Victoria Versicherung

AG, 578 F.3d 1052 (9th Cir. 2009). On the other

hand, as the petition here highlights, other courts

have — like Medellin— read Garamend! to apply on-

ly to conflicts with certain executive agreements

and have not recognized preemption by mere execu-

tive branch policy. See Petition for a Writ of Certi-

orari, Weiss v. Assicurazioni! Generali S.p.A., No.

10-80, at 10-11 (citing cases). Granting review

would allow this Court to clarify this fundamental

constitutional relationship between federal execu-

tive power, federal lawmaking power, and state

law.

ARGUMENT

I. THE DECISION BELOW CONFLICTS

WITH BASIC PRINCIPLES OF SEPARA-

TION OF POWERS AND FEDERALISM

6

A. The Constitution’s Basic Principles of

Separation of Powers and Federalism

Require that Mere Presidential Poli-

cies Cannot Displace Otherwise-

Constitutional State Law.

The U.S. Constitution sets forth two basic

principles of federalism and separation of powers

that 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 which

shall be made in Pursuance thereof,” and federal

treaties 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 law

in two (but only two) ways: if the Constitution itself

prohibits 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 laws

made “in pursuance of’ the Constitution; the Con-

stitution’s Article I, Section 7 in turn specifies the

procedures by which federal law is made.

Article VI and Article I, Section 7 impose

substantial procedural hurdles for the creation of

federal law. It must be done (a) with the approval

of majorities of both of the two separately-elected

houses of Congress and of the President, (b) with a

supermajority of both houses, or (c) in the case of

treaties, with the approval of the President plus a

supermajority of the Senate. These hurdles safe-

guard state interests and protect the Constitution’s

7

federal structure, assuring that state laws are not

displaced unless multiple federal actors agree that

they should be.?

Under the second principle, as a matter of

separation of powers the Constitution’s designation

of the President as holding “the executive Power,”

U.S. Const., Art. II, Sec. 1, shows the President’s

lack of independent lawmaking power. Compare

U.S. Const., Art. I., Sec. 1 (stating that “[a]ll legis-

lative Powers herein granted” shall be vested in

Congress). While the precise scope of the Presi-

dent’s “executive Power” may remain unclear, a

common core understanding is that the President

cannot unilaterally make law (that is, change indi-

vidual legal rights and duties); to the contrary, the

President’s core power and authority is to execute

laws made by others. The Constitution’s framers

saw this limit as an important check on the power-

ful executive office they created, and they derived it

from an equally central feature of English constitu:

tional law, which held that the king could not make

law without Parliament’s consent. See 1 William

Blackstone, Commentaries on the Laws of England

142-43, 261 (1765); 4 zd. at 67. As James Madison

explained in Federalist 47, “{t]he magistrate in

whom the whole executive power resides cannot of

himself make a law.” James Madison, Alexander

“

’ As discussed below, this Court has recognized that in “a nar.ow set of

circumstances” state law may be preempted by certain executive

agreements 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 this

case.

8

Hamilton and John Jay, The Federalist Papers, No.

47(Isaac Kramnick, ed., 1987), at 304.°

These basic principles came together in this

Court’s most celebrated case on presidential power,

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579 (1952). In that case, President Harry Truman

by executive order directed the seizure of major

U.S. steel mills due to an impending strike in order

to avoid an interruption of military supplies to the

on-going war effort in Korea. This Court found the

President’s order to be an unconstitutional law-

making act.

Justice Black’s opinion for the Court as-

sumed the first proposition described above: that

state law governed unless displaced by federal law.

The mill owners held property rights under state

law. Absent a conflicting federal act, the state law

was obviously constitutional and formed the base-

line of the mill owners’ rights. The question in the

case was whether any federal act displaced the

state law. Since there was no conflicting treaty or

act of Congress, the question was whether the Pres-

ident’s order had that effect.

This Court held that it did not, applying the

basic proposition that the President was not a

lawmaker. As Justice Black wrote for the Court:

In the framework of our Constitution, the

President’s power to see that the laws are

* See Michael D. Ramsey, The Constitution’s Text in Foreign

Affairs 91-114 (Harvard U. Press 2007); Brannon P. Denning

and Michael D. Ramsey, American Insurance Association Vv.

Garamendi and Executive Preemption tn Foreign Affairs, 46

Wm. & Mary L. Rev. 825, 906-24 (2004).

9

faithfully executed refutes the idea that he is

to be a lawmaker. The Constitution limits

his functions in the lawmaking process to the

recommending of laws he thinks wise and

the vetoing of laws he thinks bad. And the

Constitution is neither silent nor equivocal

about who shall make laws which the Presi-

dent is to execute. The first section of the

first article says that “All legislative Powers

herein granted shall be vested in a Congress

of the United States....”

Td. at. 587-88."

Although Justice Black’s opinion did not ful-

ly explain why the Court regarded the President’s

act as a lawmaking act, the answer is evident: the

President’s order in Youngstown sought to change

rights under existing law. Because state law was

the baseline, the mill owners had a legal right to

their property which the President sought to alter.

For this reason, if mere presidential policy were to

be preemptive, that would grant lawmaking power

to the President.

* Justices Jackson and Frankfurter (among others) concurred

to suggest some flexibility in the extent of executive power,

but they did not dispute Justice Black’s central premise that

the President is not a lawmaker. In particular, Justice Jack-

son’s concurrence suggested that the President might have

greater latitude in certain cases when Congress has approved

the President’s action. See Dames & Moore v. Regan, 453

U.S. 654 (1981). There is no argument, however, that in the

present case that the President has taken any formal action

concerning claims against Italian companies such as Genera-

li, much less that Congress has approved any such action.

10

In sum, the core constitutional problem in

Youngstown was that the President tried to make

executive policy superior to existing state law.

Both Article II and Article VI show this to be

beyond the President's power. Under Article II, the

President, like the eighteenth-century English mo-

narch, cannot use “executive” power to issue de-

crees with the force of law. Article VI confirms this

limit by setting forth the ways the federal govern:

ment can act with the force of supreme law and by

confining the President’s lawmaking role to action

in conjunction with one or both houses of Congress.

B. The Decision Below Conflicts with Ba-

sic Constitutional Principles by Giving

Preemptive Effect to Mere Presiden-

tial Policy.

In the decision below, the Court of Appeals

departed from these basic constitutional principles

by giving preemptive effect to mere executive

branch policy. Petitioner, who is the heir of Holo-

caust survivors, brought suit under various provi-

sions of state law against Respondent Assicurazioni

Generali S.p.A. and related entities (“Generali”) to

recover on insurance policies Generali issued to his

decedents before or during the Holocaust. The U.S.

executive branch has been involved for many years

in supporting an international non-governmental

body, the International Commission on Holocaust-

Era Insurance Claims (“ICHEIC”), to settle Holo-

caust-era insurance claims. The Court of Appeals

found that an executive branch policy of resolving

claims through [CHEIC preempted state law as

1]

applied to Petitioner’s case. J/n re Assicurazioni

Generali S.p.A, 592 F.3d at 118-19.

As the Court of Appeals recognized, no ordi

nary source of preemptive federal law conflicts with

the 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)° or by implication.

However, none of these constitutional provisions

implicates the state laws at issue here.® In addi-

tion, Article VI establishes treaties and statutes as

preemptive federal law by making them (along with

the Constitution itself) part of the “supreme Law of

the Land.” Again, it is not argued that the state

laws 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 executive

agreement. Although executive agreements (inter:

national agreements not made through the treaty-

making process of Article IJ) fit uncomfortably with

® Article I, Section 10 lists certain specific actions the states

cannot take, or can take only with Congress’ consent, such as

engaging in war or making treaties and other international

agreements.

"In Zschernig v. Miller, 389 U.S. 429 (1968), this Court found

that the Constitution implicitly precluded some state intru-

sions into U.S. foreign efiairs whether or not they conflicted

with announced U.S. foreign policy. The Court of Appeals did

not rely on Zschernig, which appears limited to situations in

which a state law directly insults or passes judgment upon a

particular foreign government. That circumstance is plainly

not implicated here.

12

the sources of preemptive law described in Article

VI, this Court’s prior decisions recognize that in

certain circumstances executive agreements may

have 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); United

States v. Belmont, 301 U.S. 324 (1937); see also

Medellin, 552 U.S. at 531-32 (noting that “in a nar-

row set of circumstances” executive agreements

have been regarded as preempting state law). In

the present case, however, there is no governing

executive agreement. The U.S. President has en-

tered into executive agreements relating to Holo-

caust-era insurance claims with Germany and Aus:

tria; Generali is an Italian company and the U.S.

President has not entered into any executive

agreement with Italy in this regard. See Jn re As-

sicurazion’ Generali, 592 F.3d at 118-119 (express:

ly concluding that the absence of an executive

agreement did not preclude preemption); /n re As:

sicurazion! Generali S.p.A. Holocaust Insurance Li

tig., 228 F.Supp.2d 348, 358 (S.D.N.Y.2002) (find

ing that “no executive agreement at issue in this

case could be read to preclude litigation of [Peti-

tioner’s] claims in U.S. courts”).

Nonetheless, on the strength of this Court's

decision in American Insurance Association vy. Ga-

ramendi, the Court of Appeals found that an execu

tive branch policy of resolving claims (including

claims against Generali) through ICHKEIC

preempted Petitioner's state law claims. See /n re

Assicurazioni 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 om reading Garamend: to allow preemption

by executive policy even absent a governing execu-

tive agreement. Jd. at 119 (asserting that this

Court in Garamendi “did not view the existence of

an executive agreement as a prerequisite” to execu’

tive branch policy preemption).

The Court of Appeals’ expansive reading of

Garamendi conflicts with the basic constitutional

principles set forth above. As described in the next

section, it also squarely conflicts with this Court's

decision in Medellin (which the Court of Appeals

dismissed without explanation in a one-sentence

footnote, see 592 F.3d at 119 n.2).

IT. MEDELLIN V. TEXAS REAFFIRMED

THAT MERE PRESIDENTIAL FOREIGN

POLICY DOES NOT DISPLACE STATE

LAW AND REJECTED BROAD READINGS

OF GARAMENDITO THE CONTRARY

A. In Medellin, this Court Refused to

Find a State Law Preempted by a

Mere Presidential Foreign Policy

This Court recently reaffirmed the foregoing

constitutional principles as applied to presidential

foreign policy in Medellin v. Texas, 552 U.S. 491

(2008). In Medellin, this Court — rejecting argu-

ments by the executive branch that closely parallel

the Court of Appeals’ reasoning in the present case

— held that even a “plainly compelling” presidential

foreign 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 Medellin that the

President’s policy that the United States would

comply 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 convicted

and sentenced to death in Texas state court. Ina

case brought by Mexico on his behalf, the ICJ held

that he was entitled to have his sentence reconsi-

dered because he had not been afforded his rights

under an applicable treaty, the Vienna Convention

on Consular Relations. The Texas courts held that

Texas law did not permit such reconsideration.

This Court and the President agreed that the

ICJ judgment was not self-executing and thus not

directly enforceable as preemptive federal law. See

td. at 507-23. However, as this Court recounted,

“President George W. Bush determined, through a

Memorandum to the Attorney General ... that the

United States would ‘discharge its international

obligations’ under [the ICJ judgment] ‘by having

State courts give effect to the decision.” /d. at 503,

quoting the President’s memorandum of Feb. 28,

2005. According to the President, the presidential

policy reflected in this memorandum displaced

Texas’ state law and entitled Medellin to a new

hearing on his sentence. See Brief of the United

States Supporting Petitioner, Medellin v. Texas,

June 28, 2007, 2007 WL 19094262 (arguing that

the President by announcing U.S. foreign policy has

power to “establish binding rules of decision that

preempt contrary state law.”).

This Court flatly rejected the claim that the

President 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 to

the question of presidential lawmaking powers:

Once a treaty is ratified without provisions

clearly according it domestic effect ... wheth-

er the treaty will ever have such effect is go-

verned by the fundamental constitutional

principle that “[t]he power to make the ne-

cessary laws is in Congress; the power to ex-

ecute in the President.” [quoting Hamdan v.

Rumsfeld, 548 U.S. 557 (2006), internal quo-

tation omitted]; see U.S. Const., Art. I, § 1

(“All legislative Powers herein granted shall

be vested in a Congress of the United

States”). As already noted, the terms of a

non-self-executing treaty can become domes-

tic law only in the same way as any other

law—through passage of legislation by both

Houses of Congress, combined with either

the President's signature or a congressional

override 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 in

Youngstown, and this Court in Mede//in quoted

Justice Black’s observation in Youngstown that

“the President’s power to see that the laws are

faithfully executed refutes the idea that he is to be

a lawmaker.” J/d., quoting Youngstown, 343 U.S. at

587. Medellin also invoked Madison's statement in

Federalist No. 47 that “[t]he magistrate in whom

the whole executive power resides cannot of himself

16

make a law” and pointedly observed “[t]hat would

... seem an apt description of the asserted executive

authority unilaterally to give the effect of domestic

law to obligations under a non-self-executing trea-

ty.” Medellin, 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 include

power to “establish binding rules of decision that

preempt contrary state law.” That claim, this

Court held, violated the “fundamental constitution-

al principle that ‘[t]he power to make the necessary

laws is in Congress; the power to execute in the

President.” Jd. at 526. This Court reached that

conclusion, moreover, even though it acknowledged

the “plainly compelling” importance to U.S. foreign

affairs of the decision whether or not to comply

with the ICJ judgment. Jd. at 524.

In sum, the Medellin decision strongly reaf-

firms the proposition that, even in matters poten-

tially affecting foreign affairs, the President cannot

make law and otherwise-valid state law cannot be

displaced by mere presidential foreign policy.’

"The result in Medellin comports with this Court’s prior deci-

sions addressing the question. See Barclays Bank PLC vy.

Franchise Tax Board, 512 U.S. 298, 328-29 (1994) (finding

that “Executive Branch communications that express federal

policy but lack the force of law cannot render unconstitutional

California’s otherwise valid, congressionally condoned [tax

laws].”); Breard v. Greene, 523 U.S. 371, 378 (1998) (finding

that the President could only ask, but not require, Virginia to

comply with a provisional order from the [CJ).

17

B. This Court’s Decision in Medellin Lim-

its American Insurance Association Vv.

Garamendi, on which the Court of Ap-

peals Relied, to State Laws that Con-

flict with Executive Agreements

The Court of Appeals below relied heavily on

American Insurance Association v. Garamendi to

conclude that executive branch policy, even if not

reflected in an executive agreement, preempts state

law. See 592 F.3d at 118-119. As Medellin makes

clear, however, Garamendi should not be read so

broadly. The executive branch advanced exactly

the 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 and

Austria relating to ICHEIC and to Holocaust-era

claims against German and Austrian companies.

Garamendi, 539 U.S. at 423-28. The Court of Ap-

peals below read Garamendi to endorse a broad ex-

ecutive foreign policy preemption not limited to the

effect of particular executive agreements, and re-

lied on this reading of Garamendi in holding Peti-

tioner’s state law claims to be preempted. See 592

F.3d at 118-119.

However, this Court's decision in Medellin

expressly rejected a broad reading of Garamend1.

In Medellin, the executive branch relied heavily on

a broad reading of Garamendi — akin to the reading

adopted 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 to

rejecting the executive's position on broader consti-

tutional principles, directly addressed Garamendi

and described a much more limited view of Gara-

mendis holding. Garamend, this Court explained,

rested centrally on the presence of the German and

Austrian executive agreements, and thus followed

directly from prior cases such as Dames & Moore

establishing the preemptive effect of certain execu-

tive agreements. As this Court put it, Garamendi

was one of “a series of cases in which this Court has

upheld the authority of the President to settle for-

eign claims pursuant to an executive agreement.”

Id. at 530-31 (citing Dames & Moore, Pink, and

Belmont, 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 to

settle civil claims between American citizens and

foreign governments or foreign nationals.” Jd. at

531 (emphasis added). Moreover, the Medel/in

Court added, these prior cases relied on congres-

sional assent to the President’s longstanding prac-

tice of making such executive agreements, and “the

limitations on this source of executive power are

clearly set forth.” Jd. Thus, this Court concluded,

Garamendi had no force in a case such as Medellin,

where there was no executive agreement, but only

an executive branch foreign policy. Jd.

C. The Decision Below Directly Conflicts

with this Court’s Decision in Medellin

The decision below, relying on Garamendi in

the absence of an executive agreement and finding

19

that mere executive branch policy preempts state

law, fundamentally conflicts with this Court’s deci-

sion in Medellin. As discussed, Medellin held that

the President’s policy that states would comply

with the ICJ’s order, as reflected in a presidential

memorandum but not otherwise incorporated into

federal law, did not preempt a Texas law that con-

flicted with the ICJ’s order. Further, this Court in

Medellin noted that Garamendi was not to the con-

trary, because Garamend! involved the President’s

power to settle claims “pursuant to an executive

agreement.” 552 U.S. at 530-31.

The Court of Appeals below failed to address

Medellin directly, dismissing it in ae 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) that

mere executive branch “policy,” not incorporated

into any executive agreement, is preemptive. See

td. (expressly finding that an executive agreement

is “not a prerequisite” to preemption by executive

policy). That proposition is exactly what this Court

rejected in Medellin. As discussed above, in Mede/-

Jin the President announced a policy that the states

would comply with the ICJ’s order, but this Court

found that policy not to preempt conflicting Texas

state law because the policy was not supported by a

federal lawmaking act.

Ill. This Case Presents an Issue of Wide-

Ranging Practical Importance Relating to

the President's Power over State Law

20

The decision below, which appears to set no

limits on the President’s ability to displace state

law pursuant to unilateral executive branch policy,

would fundamentally alter both the relationship

between the President and the states, and the rela-

tionship between the President and Congress. Be-

cause there are few institutional checks upon the

President'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-approved

executive agreement is required for preemption, in-

stitutional limits may be maintained because the

President must act formally, in concert with a for-

eign nation, pursuant to a commitment that be-

comes binding on the nation under international

law, and with implicit congressional authorization.®

Further, the Court of Appeals appeared not

to impose any limits on the kind of state law sub-

; To be clear, this case does not raise, and this brief takes no position

on, the question of the circumstances under which an executive agree-

ment can be preemptive of state law. This Court in Medellin noted that

its prior cases giving certain executive agreements preemptive effect

involved a “narrow set of circumstances” as well as implicit congres-

sional approval. See Medellin, 552 U.S. at 531. In the present case, as

the Court of Appeals acknowledged, there is no executive agreement of

any sort in conflict with the state laws under which Petitioner’s claims

are raised.

21

ject to executive preemption. Most of the state laws

on which Petitioner's claims are based are laws of

general application, not specifically directed toward

Holocaust-era claims or indeed any foreign affairs

matters. They are simply ordinary state laws of

contract and insurance.’ In today’s interconnected

and globalized world, the President may plausibly

claim that any state law, no matter how central to

the state’s own internal affairs, implicates the Pres-

ident’s foreign policy and thus may be preempted

on presidential say-so.

As a result, the decision below would, across

a broad range of subjects and policies, substantially

shift 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 navigated

before preemptive law is made. Indeed, a funda-

mental protection for federalism values is that fed:

eral law can be made only through these difficult

procedures. A leading academic commentary ex-

plains:

Although the Supremacy Clause performs

the familiar function of securing the primacy

of federal law over contrary state law, it also

necessarily constrains the exercise of federal

power by recognizing only three sources of

law as “the supreme Law of the Land.” ....

” See 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 to

displace neutral state laws of general application in areas of traditional

state competence’’).

22

The Founders, in turn, prescribed finely

wrought 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. ... [Flederal

lawmaking procedures ... preserve federal-

ism both by making federal law more diffi-

cult to adopt, and by assigning lawmaking

power solely to actors subject to the political

safeguards of federalism. The text, struc:

ture, and history of the Constitution, moreo-

ver, suggest that these procedures were

meant to be the exclusive means of adopting

“the supreme Law of the Land.” Permitting

the federal government to avoid these con-

straints would allow it to exercise more pow:

er than the Constitution contemplates, at the

expense of state authority.

Bradford Clark, Separation of Powers as a Safe-

guard of Federalism, 79 Tex. L. Rev. 1321, 1323

(2001). Allowing mere presidential policy to

preempt state law, as the President advocated un-

successfully in Medellin, 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 other

branches of the federal government by assuring

that if the President wants presidential policies to

have legally binding effect, the President must se-

cure the cooperation of Congress (or of two-thirds of

the Senate in the case of treaties). This provides a

powerful check upon unilateral presidential policy.

As discussed, under eighteenth-century English

23

law, leading authorities such as Blackstone — who

in turn heavily influenced the American framers —

saw an essential guarantee of liberty in the ancient

rule that the monarch could not make law by de-

cree. Not surprisingly, in creating and explaining

the office of the Presidency, the framers adopted

and invoked the fundamental rule that, as in Eng-

land, the holder of executive power could not “of

himself make a law.” Madison, supra, at 304. That

power they instead assigned to Congress. Corres:

pondingly, the question whether individual rights

established under otherwise-constitutional state

law should be displaced in the national interest is

fundamentally a question for Congress. See

Youngstown, 343 U.S. at 587-88. The decision be-

low would, across a broad range of cases, reallocate

it to the President.

As a result, the decision below has funda-

mental constitutional ramifications far beyond its

particular facts. By reading Garamend: broadly,

without attention to the limits this Court empha-

sized in Medellin, the decision below would allow

the President alone to decide which state laws

should and should not remain in effect. Certiorari

is warranted to clarify the limits of the President’s

ability to displace state law by executive “policy,”

see 592 F.3d at 118-119, unsupported by any feder-

al lawmaking act.

IV. CONCLUSION

Amici respectfully urge that this Court grant

a writ of certiorari to address the important issues

of separation of powers and federalism raised by

the petition.

24

Respectfully submitted,

MICHAEL D. RAMSEY*

University of San Diego

School of Law

5998 Alcala Park

San Diego, CA 92110

(619) 260-4145

mramsey@sandiego.edu

* Counsel of Record

August 13, 2010

MICHAEL E. ELSNER

JOHN M. EUBANKS

MOTLEY RICE LLC

28 Bridgeside Blvd

Mt. Pleasant, SC 29464

(843) 216-9000