SUPREMACY OF THE SUPREMACY CLAUSE: A GARAMENDI-BASED FRAMEWORK FOR ASSESSING STATE LAW THAT INTERSECTS WITH U.S. FOREIGN POLICY Alexandria R. Strauss* State and local governments across the United States increasingly act in areas that intersect with foreign policy. Federalism concerns and U.S. foreign relations are thus in constant tension. In American Insurance Ass’n v. Garamendi, the U.S. Supreme Court in 2003 both expanded and detracted from where states and localities may permissibly act in areas that touch upon foreign affairs. This Note works within the confines of Garamendi to outline four distinct categories of state action that might intersect with foreign relations. It discusses how lower courts, namely the Ninth Circuit, the Eleventh Circuit, and the Northern District of Illinois, have categorized each type of case in recent interpretations of Supreme Court precedent. This Note does not advocate for or against the Court’s analysis in Garamendi. Rather, it argues that lower courts should minimize inconsistencies—which have become quite common—by categorizing all state actions that touch upon foreign affairs pursuant to this distinct framework in accordance with Garamendi. This Note’s typology acknowledges the Court’s expansion of Supremacy Clause-based conflict preemption in the foreign affairs realm, and it argues that: (1) state actions that add on to existing federal policy—specifically economic sanctions on foreign regimes—are categorically impermissible because such “pile ons” conflict with federal policy, and (2) where there is legitimately no federal policy on a specific subject matter, there can be no conflict. And in the absence of a conflict, states may constitutionally act pursuant to their police powers, even if their actions intersect with foreign affairs. This Note further argues that Garamendi’s expansion of conflict preemption significantly diminishes the weight of the dormant foreign affairs doctrine and that foregoing a Supremacy Clause analysis in favor of Zschernig v. Miller’s dormant foreign affairs doctrine would only be appropriate where a state reaches beyond its police power. * J.D. Candidate, 2015, Fordham University School of Law; B.A., 2011, Cornell University. Thank you to Professor Thomas H. Lee for his guidance and insight and my family and friends for their love and encouragement. 417 418 FORDHAM LAW REVIEW [Vol. 83 INTRODUCTION .......................................................................................... 419 I. AN ONGOING TENSION BETWEEN FEDERALISM AND U.S. FOREIGN POLICY ........................................................................................... 423 A. Foreign Affairs and Federalism Before American Insurance Ass’n v. Garamendi ................................................................ 423 1. The Constitutional Balancing of Federalism with Foreign Affairs .................................................................. 424 2. The Cold War: Expansion of Preemption and Federal Exclusivity in Foreign Affairs ........................................... 426 3. Retreating from Zschernig v. Miller ................................. 429 4. Crosby v. National Foreign Trade Council: The Supreme Court Keeps Zschernig v. Miller on Life Support .............................................................................. 430 B. American Insurance Ass’n v. Garamendi ................................ 432 1. California’s Holocaust Victim Relief Efforts ................... 432 2. Extension of Conflict Preemption Under Crosby v. National Foreign Trade Council ....................................... 433 3. Zschernig v. Miller Further Narrowed .............................. 434 C. Medellín v. Texas .................................................................... 435 II. A TYPOLOGY: FOUR TYPES OF STATE ACTION THAT INTERSECT WITH U.S. FOREIGN POLICY ........................................................... 437 A. State Sanctions Against Foreign Countries: Piling On to Federal Sanctions ................................................................... 438 1. Historically: State-Level Action Against South Africa ... 438 2. Applying Crosby and Garamendi ..................................... 439 3. Eleventh Circuit Upholds Florida Restriction on Travel to State Sponsors of Terrorism .......................................... 439 4. Northern District of Illinois: Illinois Sanctions on Sudan Survive Under Crosby ............................................ 442 B. State Action Within Police Power ............................................ 445 1. Litigating Ottoman-Era Life Insurance Claims in California .......................................................................... 446 2. The Ninth Circuit Invalidates California Law on Armenian Genocide Life Insurance Claims ...................... 447 C. Two Hypothetical Possibilities: State Action Beyond Police Power ...................................................................................... 450 III. PROHIBITING “PILE ONS,” PERMITTING POLICE POWER: A SUPREMACY CLAUSE ANALYSIS IS ALMOST ALWAYS APPLICABLE UNDER GARAMENDI ................................................... 451 A. Prohibiting State “Pile Ons” to Federal Foreign Policy ........ 452 1. Faculty Senate of Florida International University v. Winn .................................................................................. 453 2. National Foreign Trade Council v. Giannoulias .............. 454 B. Permitting States to Fill Gaps in Foreign Policy Pursuant to Police Power ....................................................................... 455 2014] SUPREMACY OF THE SUPREMACY CLAUSE 419 C. Zschernig Analysis Is Appropriate Only Where the State Acts Beyond Its Traditional Police Power .............................. 456 CONCLUSION ............................................................................................. 457 INTRODUCTION During and immediately after World War I, the Ottoman Empire undertook a series of campaigns to kill or expel the ethnic Armenians within its borders.1 A century later, both the Ottoman Empire and its successor, present-day Turkey, have failed to acknowledge, express remorse for, or take responsibility for the genocide.2 Turkey is a valuable and strategic ally of the United States.3 The alliance has been crucial to U.S. interests in the region given the constant turmoil in the Middle East throughout recent decades.4 Presumably out of fear of endangering this relationship, the U.S. government has never officially recognized these events as genocide.5 Nonetheless, approximately forty U.S. states have officially acknowledged the Armenian genocide, without apparent repercussions for the U.S.-Turkey relationship.6 Recently, California went beyond mere recognition of the genocide in the Ottoman Empire.7 In 2000, the California legislature extended the statute of limitations for life insurance claims against insurance companies that issued policies to Armenians in the Ottoman Empire prior to the genocide but never paid out on those policies.8 The extension of the limitations 1. See SAMANTHA POWER, “A PROBLEM FROM HELL”: AMERICA AND THE AGE OF GENOCIDE 1–2 (2002). 2. See Jeffrey W. Stempel et al., Stoney Road out of Eden: The Struggle to Recover Insurance For Armenian Genocide Deaths and Its Implications for the Future of State Authority, Contract Rights, and Human Rights, 18 BUFF. HUM. RTS. L. REV. 1, 40, 76–79 (2012); Adam B. Schiff, Time to Recognize the Armenian Genocide, WALL ST. J., Apr. 4, 2009, at A11 (“For over 90 years, Turkey has refused to recognize this dark chapter of its Ottoman past . .”). Indeed, acknowledging the Armenian killings as genocide is a crime under the Turkish penal code. See Sebnem Arsu, Turkey Seethes at the U.S. over House Genocide Vote, N.Y. TIMES, Oct. 12, 2007, at A12. 3. See Remarks by President Obama and Turkish Prime Minister Erdogan After Meeting, The White House, Office of the Press Secretary (Apr. 6, 2009), available at http://whitehouse.gov/the-press-office/remarks-president-and-pm-turkey-after-meeting; G. Lincoln McCurdy, Armenian Genocide Resolution, WALL ST. J., Mar. 22, 2010, at A20 (noting that 90 percent of all supplies going to U.S. troops in Iraq go through channels in Turkey and that Turkey manages the logistics for NATO operations in Afghanistan). 4. See McCurdy, supra note 3. 5. See Peter Baker, Obama Marks Genocide Without Saying the Word, N.Y. TIMES, Apr. 25, 2010, at A10. 6. See Movsesian v. Victoria Versicherung AG (Movsesian II), 629 F.3d 901, 907 (9th Cir. 2010) (listing some of the states that have organized events and speeches to commemorate the Armenian genocide), overruled by Movsesian v. Victoria Versicherung AG (Movsesian III), 670 F.3d 1067 (9th Cir. 2012) (en banc), cert. denied, 133 S. Ct. 2795 (2013). Additionally, approximately twenty-one countries have officially recognized the Armenian killings as genocide. See ALEXANDER-MICHAEL HADJILYRA, THE ARMENIANS OF CYPRUS 32 (2009). 7. See Movsesian III, 670 F.3d 1067. 8. See id. at 1069–70. 420 FORDHAM LAW REVIEW [Vol. 83 period led to a settlement with New York Life Insurance Company.9 It would have enabled claimants—descendants of policy beneficiaries—to collect from European insurance companies.10 But one of these European insurance companies, Munich Re, challenged the statute at the appellate level.11 Ultimately in 2012, the Ninth Circuit invalidated the California statute on the ground that it impermissibly interfered with the federal government’s authority over foreign affairs.12 The Ninth Circuit’s