The Potential Legal Impact of President Biden’s Recognition of the Armenian Genocide

In a historic decision and despite pressure from Turkey, President Joe Biden became the first sitting US president to officially recognize the Armenian Genocide. Saturday’s long overdue proclamation from the United States also comes with potential legal benefits for descendents of the Armenian Genocide.

In 2012, the United States Court of Appeals for the Ninth Circuit ruled on Movsesian v. Victoria Versicherung AG. This case was in regards to Section 354.4 of the California Code of Civil Procedure, which was a state law that vested California courts with jurisdiction over certain insurance claims brought by Armenian Genocide victims for the unpaid claims for Armenians who died, were deported or escaped to avoid persecution from the Ottoman Empire. One of the defendants of the class action lawsuit brought by the plaintiffs filed a motion to dismiss, arguing that Section 354.4 is preempted under the Supremacy Clause of the US Constitution. Under the doctrine of preemption, which is based on the Supremacy Clause, “a federal court may require a state to stop certain behavior it believes interferes with, or is in conflict with, federal law.” The district court held that Section 354.4 was not preempted, but that decision was appealed. Ultimately, the Ninth Circuit ruled that Section 354.4 was in fact preempted under the Supremacy Clause and therefore unconstitutional.

Part of the Ninth Circuit’s argument for ruling that Section 354.4 was preempted, thus unconstitutional, was because this state law intruded on the exclusive powers of the federal government as it conflicted with the policies of the United States. At the time, US policy had been to avoid using the word “genocide” in connection to the 1915 crimes, so the Ninth Circuit interpreted Section 354.4 as disturbing foreign relations and establishing its own foreign policy. The specific intent of Section 354.4 was to ensure Armenian Genocide victims and their heirs would have a fair forum in which to resolve their claims, that being to collect unpaid insurance claims, but the Ninth Circuit ruled that this California law intruded on the federal government’s exclusive power to conduct and regulate foreign affairs, because it imposes the label “genocide” on the actions of the Ottoman Empire, a label which was not used by the United States at the time of this decision. The Ninth Circuit noted the significance of President Obama’s intentional avoidance of using the word “genocide” as proof of the United States policy not to recognize the Armenian Genocide.

Now with the United States legislative branch, through the 2019 resolutions in the House and Senate, and the United States executive branch, through President Joe Biden’s 2021 statement, it can be argued that the official policy of the United States is that the events that took place between 1915 and 1923 in the Ottoman Empire was in fact genocide. Therefore, if a law similar to Section 354.4 were to be passed today, a court may rule that this is not preempted by the federal government because the law is no longer establishing its own foreign policy or disturbing foreign relations, because it is now in agreement with the United States’ legislative and executive branches.

Raffi Tapanian

Raffi Tapanian

Raffi Tapanian is a second-year law student at Loyola Law School in Los Angeles, California. He is currently the treasurer for the Armenian Law Students Association at Loyola. In 2019, Raffi graduated from UCLA with a major in History, while minoring in Armenian Studies.

5 Comments

  1. Now I finally have an answer for all the pessimists who say “what does Biden’s recognition change”

  2. After so many years, far too many, of advocating, arguing, insisting, that the genocide rightly be call a genocide, is it not foolish to dismiss it now? Or worse than following, cynical? If “Biden” were replaced by any other President’s name, would the question “What does …’s recognition change?” still be asked?

  3. This is incorrect.

    The Ninth Circuit court specifically did NOT say that the California law conflicted with a federal policy against recognizing the Armenian Genocide. Rather, the Ninth Circuit said that the California law did not address a traditional area of state responsibility but instead concerned a federal area of responsibility, foreign policy, and that was enough to make the law unconstitutional. These are two entirely distinct doctrines of preemption. One is “conflict preemption,” and the other is “field preemption.” The Ninth Circuit did not make its decision because of “conflict preemption” as the author implies; it based its decision on “field preemption.” That is, even if there were no conflict between the state law and the federal policy vis-a-vis the Armenian Genocide, the state law would still be unconstitutional because it would still amount to an attempt by California to engage in foreign policy. This blog post notes the difference in conflict preemption vs. field preemption specifically with respect to this California case: http://opiniojuris.org/2012/02/24/ninth-circuit-embraces-foreign-affairs-field-preemption/

    Furthermore, it is pretty misleading to say that the Ninth Circuit “noted the significance of President Obama’s intentional avoidance of using the word ‘genocide'”. The Ninth Circuit mentioned this fact in what is, in a court decision, the equivalent of a footnote, at the very end of its analysis. (see pp. 2026-27 http://cdn.ca9.uscourts.gov/datastore/opinions/2012/02/23/07-56722.pdf).

    With all due respect, a practicing lawyer rather than a law student should have been consulted regarding the content of this article.

    President Biden’s recognition will not have any significant legal consequence. It can have important geopolitical consequences if the Republic of Armenia uses it effectively. In my view, Biden’s recognition should pave the way for Armenia and Turkey to establish normal relations, because there is no longer a risk that Turkey can start a fake ‘reconciliation’ process to prevent U.S. recognition, as it did in 2009-2010. We in the Diaspora should fully support such normalization efforts today, after the U.S. recognition. Indeed, maybe if certain segments of the Diaspora had not relentlessly criticized Armenia for pursuing normalization in 2009-10, the normalization effort might have succeeded. And if it had succeeded, and Turkey and Armenia had normal/good relations, Turkey would not have waged war against Armenia last year.

    Incidentally, these same segments of the Diaspora also adopted a “not-one-inch” position when it came to the conflict with Azerbaijan. Look where that got us.

    • Will all due respect, this article was looked at by my professor who was also co-counsel on the case, so I’m pretty confident with the accuracy of it.

      “The statute expresses a distinct political point of view on a specific
      matter of foreign policy. It imposes the politically charged label of ‘genocide’ on the actions of the Ottoman Empire.”

      “Thus, section 354.4 “has a direct impact upon foreign relations and may well adversely affect the power of the central government to deal with those problems.” Zschernig, 389 U.S. at 441. Section 354.4 therefore intrudes on the federal government’s exclusive power to conduct and regulate foreign affairs.”

      At the time of the decision, if the federal government had recognized the genocide, Section 354.4 would no longer have been conducting and regulating foreign affairs as it would have been in line with the current federal policies, therefore the court may have ruled differently.

      If you’d like to read a law review article by my professor on this topic, it can be found here: https://heinonline.org/HOL/LandingPage?handle=hein.journals/touint16&div=4&id=&page=

      And I disagree, there can be specific legal consequences. Not just from Biden’s remarks, but from the fact that now both the executive and legislative branches have recognized the genocide.

  4. Both the author’s article and comment erroneously state that the California law was field preempted “because” it conflicted with federal policy:

    “Part of the Ninth Circuit’s argument for ruling that Section 354.4 was preempted, thus unconstitutional, was because this state law intruded on the exclusive powers of the federal government **as it conflicted with the policies of the United States**.”

    “At the time of the decision, if the federal government had recognized the genocide, Section 354.4 would no longer have been conducting and regulating foreign affairs **as it would have been in line with the current federal policies**.”

    This is simply an inaccurate understanding of the relationship between field preemption and conflict preemption. A state law is unconstitutional under field preemption if it attempts to regulate foreign policy, **even if it does not conflict with the federal foreign policy**. The court said so explicitly and cited several precedent cases (including from the Supreme Court) in its decision:

    “The existence of this general foreign affairs power implies that, **even when the federal government has taken no action on a particular foreign policy issue,** the state generally is not free to make its own foreign policy on that subject.”

    “The Oregon statute conflicted with no express policy of the federal government. . . . **But the absence of a conflict did not settle the question of preemption.** Instead, the Court analyzed the purpose and operation of the Oregon statute an ‘intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress.’ . . . Although the Oregon probate statute conflicted with no federal law and appeared, at first blush property—a traditional area of state responsibility—the Supreme Court held that the law was preempted under the foreign affairs doctrine.”

    “In Von Saher, we applied those principles to a California statute that extended the statute of limitations for civil actions to recover looted Holocaust-era artwork. After concluding that the statute, Cal. Civ. Proc. Code § 354.3, **did not conflict directly with any express federal foreign policy,** we conducted a thorough field preemption analysis and held the statute unconstitutional.”

    A new law by California passed today would be field preempted again because it would still interfere with the federal government’s ability to conduct foreign affairs. Even though the federal government now recognizes the Armenian Genocide, it may think that there are several better ways to address the genocide than letting people sue in California courts (like supporting Turkish-Armenian normalization, etc.). These determinations on how to address the genocide are a foreign policy matter that is exclusively reserved to the federal government, not California. The last thing we should be doing is turning this significant moral victory into a legal defeat by lobbying California to pass another unconstitutional law.

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