Movsesian v. Victoria Vericherung and the Scope of the President’s Foreign Affairs Power to Preempt Words
Buys, Cindy Galway
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This article addresses the continuing struggle of the federal courts to define the scope of the federal government’s foreign affairs power to preempt state law. Recently, the Ninth Circuit Court of Appeals did an about face in Movsesian v. Victoria Versicherung, which involved a claim that a California statute using the phrase “Armenian Genocide” is preempted by a few informal nonbinding statements of executive policy made to Congress objecting to the use of those words in Congressional resolutions. In Movsesian I, the Ninth Circuit found the California statute preempted in a decision that would have expanded the federal government’s foreign affairs power to preempt state law in unprecedented and potentially dangerous ways. Perhaps recognizing in hindsight the possible implications of its decision, the Ninth Circuit then granted rehearing and reversed itself in 2010, now convinced that there is no clear federal policy that preempts the California statute. In neither decision, however, did the Ninth Circuit extensively consider the implications of preempting states from using certain words when legislating. This article uses the Movsesian decisions to illustrate the confusion in this area of the law and calls on the Supreme Court to provide greater clarity. It argues that it is bad law and policy for the judiciary to find state law preempted in the absence of a formal legislative act to provide guidance. Doing so effectively requires the judiciary to decide for the executive branch when a foreign policy exists and the substance and scope of that policy. The article ultimately concludes that allowing the federal government to impose a complete ban the use of particular words in state legislation would violate state sovereignty.