By Shahrzad Noorbaloochi 64 Am. U. L. Rev. 687 (2015)

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 Medellín v. Texas.  The extension of Medellín to foreign affairs preemption cases such as Movsesian III is inappropriate, however, because Medellín involved highly unique facts in three ways.  First, the executive action in Medellín 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, Medellín posed the unique threat of empowering international courts over domestic courts, a threat that was absent in Movsesian III.  Third, Medellín 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 Medellín 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.

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