The Armenian Genocide and California’s powers

Published: Friday August 28, 2009

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In a 2-to-1 decision, a panel of the U.S. Court of Appeals for the Ninth Circuit last week struck down a statute allowing the heirs of Armenian Genocide victims to sue insurance companies in California courts. Writing for the majority, Judge David R. Thompson took the position that the mention of the Armenian Genocide in the statute interfered with the president's prerogative to conduct the foreign affairs of the United States.

Judge Thompson took the position that the federal Executive Branch has the power to "prohibit" legislatures – the U.S. Congress and state legislature alike – from using terminology that the president believes would undermine the foreign relations of the United States. This position is an affront to American constitutional traditions and cannot be allowed to stand.

The insurance law

In 2000, as part of California's insurance regulations, the state allowed lawsuits in California against certain insurance companies for claims arising from the Armenian Genocide. The provision of law also extended the statute of limitations for such claims until the end of 2010.

The provision of law was modeled after provisions that extended the statute of limitations until 2010 for Holocaust-era insurance claims and World War II slave labor claims. In rulings handed down in 2003 and 2005, both of these "sister statutes" were found unconstitutional on the grounds that they interfered with the national government's conduct of foreign affairs. But the rulings were based on completely different circumstances. In the Holocaust case, the Supreme Court noted that an international commission had been set up with the participation of the federal government, and the federal government objected to California's initiative.

The statute at issue in the present case allowed lawsuits against insurance companies currently doing business in the state that sold insurance policies in Europe or Asia between 1875 and 1923. The provision allowed lawsuits on behalf of beneficiaries of policyholders who died in the Ottoman Empire between 1915 and 1923.

As can be seen, for the purposes of the law, "Armenian Genocide victims" was defined very broadly, as "any person of Armenian or other ancestry living in the Ottoman Empire during the period of 1915 to 1923, inclusive, who died, was deported, or escaped to avoid persecution during that period." Oddly, this definition would appear to include even Turkish soldiers who died in those years.

In striking down the law, the federal appeals court panel reached the incorrect conclusion that "there is an express federal policy prohibiting legislative recognition of an ‘Armenian Genocide.'"

In dissent, Judge Harry Pregerson noted quite correctly, "There is no express federal policy forbidding California from using the term ‘Armenian Genocide' in the course of exercising its traditional authority to regulate the insurance industry."

The limits of federal executive power

The surprising word "prohibit" is necessary to Judge Thompson's argument, and he uses it repeatedly.

There is no question that the Executive Branch has had a policy of dissuading Congress from recognizing the Armenian Genocide. But it did not – and could not – "prohibit" Congress from doing so. Judge Thompson cites no precedent for his insistence on this power to "prohibit"; he does not even offer evidence that the Executive Branch sought to "prohibit" rather than merely dissuade.

More importantly, the judge confuses the federal legislature with state legislatures. Although the Executive Branch has indeed expended considerable effort to dissuade the Congress from adopting resolutions acknowledging the U.S. record on the Armenian Genocide, Judge Thompson cited no evidence that the Executive Branch has made an effort to dissuade state legislatures from recognizing the Genocide.

The panel dismisses this key fact on the flimsy excuse that "there is no citation or evidence in the record" that other states acknowledge the Genocide. But the burden was on the opponents of the provision to show that the federal government sought to stop state recognition; and the opponents were able only to show efforts on the federal level. It may have been better, of course, if the appellate attorney for the Armenian plaintiffs had offered the relevant evidence.

Severability

The way the law is written, its references to the Armenian Genocide are not necessary to the basic provisions of the law. The phrase "Armenian Genocide victims" is used as shorthand for a class of people defined in the law, as noted above. The law could have just as well used the phrase "members of the class defined in (a)(1)."

The panel's majority avoids this obvious point by asserting that California is not doing what it claims to be doing – regulating its insurance industry – but is doing something else entirely, expressing "its dissatisfaction with the federal government's chosen foreign policy path." An appeals court would normally be expected to make a pretty persuasive argument to second-guess a state's stated legislative intent; this panel does so as a simple assertion, made without evidence.

California is long on record as recognizing the Armenian Genocide. It did not need this law to express "its dissatisfaction with the federal government's chosen foreign policy path." Thus, as Judge Pregerson recognized in his dissent, it is absolutely correct that California's legislative intent was exactly what it said it was: to make insurance companies that do business in the state pay claims they may have avoided paying in the past.

Next steps

One of the oddities of the ruling is that it can be seen as moot on arrival. The panel cites actions taken by Presidents Bill Clinton and George W. Bush. But they are no longer president, and President Barack Obama has taken no official action to discourage – much less "prohibit" – Congress from recognizing the Armenian Genocide. On the contrary, he has spoken before the Turkish Grand National Assembly, urging Turkey's leaders to come to terms with their country's past. We expect much more from President Obama in the coming months, but his actions to date do not support the panel's decision.