Safety National Casualty Corp. v. Certain Underwriters at Lloyd's

Lloyd’s, stances, At we conclude that Jasso cannot Certain Underwriters London, probability, but Defendant- demonstrate a “reasonable Appellant. court’s of misapplication for the district Guidelines, he a would have received Lloyd’s, At Certain Underwriters lesser sentence.”11 London, Plaintiff-Appellant, reasons, For the aforementioned v. judgment district is AF- court Safety Casualty Corporation; National FIRMED. Safety

Louisiana Association of Tim- bermen, Defendants-Appellees. No. 06-30262. of Appeals, United States Court Fifth Circuit. Nov.

SAFETY NATIONAL CASUALTY

CORPORATION, Plaintiff-

Appellee, Safety

Louisiana Association Fund,

Timbermen-Self Insurers Plaintiff-Appellee,

Intervenor

v.

CERTAIN UNDERWRITERS LONDON; LLOYD’S,

AT al., Defendants,

et (5th Cir.2007) (finding plain placed error "the ord that defendant should be where the district court’s error "resulted in a advisory Range.” the bottom of the Guideline sentencing possible range where the lowest Given that squarely his current sentence sits higher top sentence is 65 months than the range, in the middle of the correct we cannot range have re [the defendant] should conclude—based on this statement alone— ceived.”); Brazell, United States v. likely district court would sentence (5th Cir.2007) (finding plain error him to a lower if it correctly sentence had where the erroneous calculation "resulted computed history points. the criminal months, guidelines but sentence quoted above statement demonstrates guideline range relevant without the 4A1.1 court, the district when faced with would enhancement have been 12-18 Range forty-six fifty-seven Guideline months.”); Garza-Lopez, United States months, concluded it would reasonable to (5th Cir.2005) (finding plain F.3d place the defendant at bottom of that error "sentencing range where the would evidence, range. any Without additional we thirty-three forty-one have been at most ascertain cannot the likelihood that the dis- months, seventy-seven far than the month less trict would the lowest end consider received.”). sentence [the defendant] result, range appropriate. to be As a Jasso that he has asserts demonstrated Jasso has not demonstrated "reasonable probability” "reasonable because at the time probability.” sentencing, the district court stated on rec-

716 Jr., Charleston, SC, Epting,

Andrew K. Scott, III, Watson, Blanche, E. William Posner, Wilson, Wilson & P. Michael Ba- LA, Rouge, Plaintiff-Appellee. ton for Joseph Bailey John (argued), Provosty, Sadler, Sobel, deLaunay, Fiorenza & Alex- andria, LA, for Intervenor Plaintiff-Appel- lee. Garner, Force,

James M. Joshua Simon Sher, Garner, Cahill, Richter, Hil- Kelin & bert, Alan (argued), D. Ezkovich New Or- LA, leans, Airey, Airey Jacob Albert & Blanchard, Slidell, LA, Defendant-Ap- pellant. JONES, KING, Judge,

Before Chief JOLLY, DAVIS, SMITH, WIENER, BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, HAYNES, SOUTHWICK and Circuit Judges.

OWEN, agreements reinsurance with the Under- Judge, joined Circuit JONES, Safety National. The Under- Judge, writers to EDITH H. Chief JOLLY, KING, EUGENE recognize assign- W. writers refused to E. GRADY BARKSDALE, WIENER, DAVIS, ment, contending obligations that LSAT’s BENAVIDES, E. DeMOSS, CARL strictly therefore non- personal were DENNIS, PRADO, STEWART, LESLIE assignable. HAYNES, Circuit

H. SOUTHWICK Safety National sued the Underwriters Judges: in federal district court. The Underwrit- interlocutory appeal for this basis unopposed stay pro- motion to ers filed 1292(b) pursuant to 28 U.S.C. ceedings compel and arbitration. The dis- to com- court’s denial of motion district initially granted that motion. trict court dispute of a contractual pel arbitration The Underwriters commenced arbitra- en among three insurers. We consider proceedings Safety tion National and MeCarran-Ferguson banc whether LSAT; however, parties could not law to reverse- Act1 authorizes agree upon how arbitrators were to be Recogni- on the preempt selected. The Underwriters then filed a Foreign Arbitral tion and Enforcement of stay join motion to lift the in order to (Convention)2 or its Awards party as a in the district court LSAT and (Convention Act).3 We con- legislation compel to resolve how to arbitration vacate the clude that it does not. We compose panel. the arbitration In re- and remand for fur- district court’s order intervene, lift sponse, LSAT moved proceedings. ther stay, quash and arbitration. LSAT assert- agreements arbitration ed were I unenforceable under Louisiana law. Safety of Timber- Louisiana Association pending, While those motions were (LSAT) is, Fund as its men-Self Insurers separate action Underwriters filed operat- fund implies, name a self-insurance against Safety seeking National and LSAT provides in Louisiana. It workers’ recovery unpaid premiums under the compensation insurance for its members. court consolidated policies. The district Lloyd’s, London Underwriters at Certain the two actions. (the Underwriters) provided excess insur- reinsuring claims for ance to LSAT ultimately The district court reconsid- occupational-injury occurrences ex- granted ered its initial decision and ceeded the amount of LSAT’s self-insur- quash motion to arbitration. The LSAT’s agree- Each ance retention. reinsurance although court concluded that district provision. an arbitration ment contained require otherwise arbi- Convention would tration, Casualty Corporation a Louisiana statute4 that has been

Safety National National) agree- interpreted prohibit excess arbitration (Safety provides also control- coverage alleg- and ments insurance contracts was compensation workers’ ling reverse-preempted the Conven- portfolio agree- that in a loss transfer es ment, MeCarran-Ferguson rights under the tion because assigned LSAT its 91-368, (co- (1970) §§ 3. Pub.L. No. 84 Stat. 692 1011-1115. 1. 15 U.S.C. 201-208). §§ dified at 9 U.S.C. 2517, 330 U.N.T.S. June 21 U.S.T. (previously § 22:868 La.Rev.Stat. La. Ann. 22:629). Rev.Stat. Ann. subsequently pressed Act.5 The district court cer- the Underwriters. We are embodying rulings persuaded tified that the order that state law does not reverse- controlling question of law preempt present involves a as to federal law in the case (1) ground which is substantial for dif- there two related but distinct reasons: Con- ap- and an immediate opinion gress ference of did not intend to include a 1292(b) peal pursuant may to 28 U.S.C. scope Congress” within the of an “Act of materially advance the termination of the when it used those words in the McCar- litigation. A of this court concluded panel case, ran-Ferguson in this it is that the did when a treaty specifically, we construe — cause Louisiana statute under consid- Convention, rather than the Conven- reverse-preempt eration to the Convention tion Act—to parties’ respec- determine the Act.6 Rehearing or the Convention en rights obligations, tive that the state thereby granted, vacating banc was superseded. law at issue is panel opinion.7 Because the McCarran- starting point inquiry of our is the Ferguson apply Act does not to the Con- Here, statutory texts.9 vention, we vacate the district or- court’s Convention, texts of the the Convention der and remand for proceedings further the McCarran-Ferguson sup- Act opinion. consistent with this port the conclusion that the McCarran- Ferguson Act does not authorize Louisiana

II to reverse-preempt The Underwriters raise three issues: contrary legislation means of prohibiting (1) whether the Convention is an “Act of disputes arbitration of regarding contracts Congress” within meaning of the of insurance. (2) Act,8 the McCar- ran-Ferguson applies to international The Louisiana statute at issue provides: (3) transactions, commercial the Con- A. No insurance contract delivered or vention precedence takes over the McCar- delivery issued for in this state and cov- ran-Ferguson Act if applies even the latter subjects located, resident, ering or to be to international transactions. Because our in performed this state ... shall contain resolution of the first issue resolves the any condition, stipulation, agreement: question presented in interlocutory appeal, we do not reach the other issues Fabe, generally Dep’t Treasury 5. See Safety Corp. U.S. Nat’l Cas. v. Certain Underwrit- of 491, 507, London, (5th Lloyd’s, ers at 558 F.3d 599 (1993) Cir.2009). ("Ordinarily, L.Ed.2d 449 a federal supersedes any inconsistent state law. 1012(b)] The first clause of 1012(b). [15 U.S.C. re- 8. 15 U.S.C. is, effect, by imposing verses this what rule, clear-statement a rule that state laws Texas, 9. See Medellín v. 552 U.S. purpose regulating enacted 'for the 1346, 1357, (2008) S.Ct. 170 L.Ed.2d 190 yield business of insurance' do not to conflict- ("The interpretation of a like the inter ing federal statutes unless federal statute statute, text.”); pretation begins of a with its otherwise."). specifically requires Safety Sylva Consumer Prod. Comm’n v. GTE nia, Inc., Safety (1980) ("We Corp. begin Nat'l Cas. v. Certain Underwrit- with the London, Lloyd’s, ers at statutory 543 F.3d 744 familiar canon of construction that Cir.2008), reh’g granted, vacated starting point interpreting en banc statute (5th Cir.2009). itself.”). language of the statute respect parties of which the have made the courts of this state Depriving against agreement meaning action within the of this jurisdiction article, shall, request at the of one of the

insurer. arbitration, parties, parties refer the agreement that the said unless finds condition, stipulation, or Any C. such void, inoperative incapable null and in violation this Section agreement being performed.13 void, voiding shall not but such shall other validity affect the subject This is the of the Conven- of the contract.10 tion Act. That Act states that the Conven- provi- clear from this Although it is not tion “shall be enforced United States are agreements text that arbitration sion’s chapter.”14 courts accordance with this voided, courts have held that Louisiana additionally provides The Act relevant def- are unenforceable be- agreements ju- initions15 and establishes federal court cause of this statute.11 parties agree risdiction and venue.16 The statute, interpreted, as so The Louisiana requiring present arbitration of the commit- conflicts with the United States’s dispute compliance with the Convention ments under the Convention. Con- would contravene the Louisiana statute. signatory that each nation vention states recognize agreement writing

“shall LSAT contends that the McCar parties undertake to sub- under which ran-Ferguson Act conflict in resolves this dispute mit their “concern- to arbitration” application favor of the of state law be subject capable matter settlement regulates cause the Louisiana statute The contem- by arbitration.”12 Convention business of insurance. The MeCarran signatory in a nation’s plates enforcement provides “Congress Ferguson Act courts, compel directing that courts “shall” hereby regula that the continued declares requested by party when arbitration tion and taxation the several States of agreement, arbitration international public in the the business of insurance is subject exceptions to certain not at issue interest, part of the silence on the present case: impose Congress shall not be construed State, Contracting any barrier to the or taxation of regulation The court of a business the several States.”17 when seized of an action a matter such 22:868; Doucet, § 412 So.2d at § Rev.Stat. Ann. 10. La.Rev.Stat. Ann. 22:868. 1384)). Mgmt. v. Dental Health Plans 11. See Doucet (La.1982) ("C Corp., 1384 412 So.2d lassi Recognition 12. Convention on the and En of the contract at issue as an insur fication Foreign art. forcement of Arbitral Awards provi ance renders the arbitration contract 10, 1958, II(1), 21 U.S.T. June sions of that contract unenforceable under U.N.T.S. 3. 22:868].”); § see Revised Statutes [Louisiana Int'l, Lloyds also McDermott Inc. v. Underwrit II(3). art. London, (5th 120 F.3d Cir. ers of 1997) ("Compulsory clauses in arbitration U.S.C. § 201. 14. certain insurance contracts are unenforceable because of Revised [Louisiana in Louisiana § 15. Id. 202. ....”); Eng. § W. 22:868] Statutes accord (Luxembourg) Ship v. Owners Mut. Ins. Ass’n §Id. 203-04. Corp., Am. Marine 750 n. 5 Cir.1993) ("Louisiana prohibited has arbitra § policies” (citing 17. 15 U.S.C. 1011. in insurance tion clauses La. purposes Act For the provides, Act further “No of Con- McCar invalidate, ran-Ferguson im- gress shall be construed neither by any Act specifically law enacted nor the Convention relates pair, supersede regulating to the business of insurance. Nor do the purpose State for the insurance, imposes challenge or which business of Underwriters district court’s business, unless such conclusion that Louisiana Revised Statutes upon fee or tax 22:868, § applied disputes arising Act relates to business of when specifically ”18 McCarran-Fergu- agreements reinsurance in insurance .... between surers, regulates son Act thus allows state law to reverse- the business of insurance preempt applicable meaning an otherwise federal within the of the McCarran-Fer assume, guson Accordingly, Act.19 we will statute because permit Congress” deciding, not an “Act of without Act does Louisiana stat invalidate, insurance,20 impair, regulates to be ute the business of “construed supersede” although entirely state law unless the the matter is not free We, therefore, relates to the busi- from doubt.21 Congress “specifically limit our analysis ness of insurance.” to whether Louisiana law over 1012(b); Dept. Treasury gage 18. Id. U.S. v. in the business of insurance must also Fabe, 491, 507, substantially pooling arrange affect the risk insured”). (explaining L.Ed.2d 449 that the first ment between the insurer and the 1012(b)] that, clause of mandates that state stat argument [§ An could be made least "regulating the business of insurance” utes do theory, resolving claims an arbitration conflicting yield federal statutes unless potentially rather than in a court or before a specifically requires a federal statute other jury substantially pool does affect the risk wise). ing arrangement between the insurer and the emphasized insured. The Court has 1012(b). U.S.C. agreements that arbitration are forum-selec displace tion and do not substan Fabe, 20. See 508 U.S. at 113 S.Ct. 2202 rights tive afforded a statute or other sub ("The category broad of laws enacted 'for the See, Ferrer, e.g., stantive law. Preston purpose regulating the business of insur- ‘end, possess ance1 consists of laws that (2008) ("By agreeing statutory to arbitrate a intention, adjusting, managing, or aim’ of or claim, party forgo a does not the substantive controlling the business of insurance .... statute; rights only afforded it submits performance [T]he actual of an insurance to their resolution in an ... arbitral forum.” part contract is essential of ‘business of (omission original) (quoting in Mitsubishi Mo ") (citation omitted). insurance.' Inc., Corp. Chrysler-Plymouth, tors v. Soler 614, 628, 3346, 473 U.S. 105 S.Ct. 87 L.Ed.2d determining 21. One of the criteria for wheth- (1985))); Duryee, 444 Int'l Ins. v.Co. 96 regulates er a law the business of insurance is cf. 837, (6th Cir.1996) (holding F.3d 839-40 that spreading whether it has the effect of or revoking a state statute an insurer's license to transferring policyholder's a risk. See Union right Pireno, do business if it exercised its 119, remove Labor Ins. Co. v. 458 U.S. Life 3002, suit to federal court was not saved from 73 102 S.Ct. L.Ed.2d 647 preemption by McCarran-Ferguson Act (explaining that the "three criteria relevant in because the state statute "was not enacted so determining particular practice whether a is ” purpose regulating much 'for the of the busi part of the 'business of insurance’ include parochial pur ness of insurance' as for the practice "whether the has the effect of trans- risk,” pose regulating foreign of insurer's choice ferring spreading policyholder's or punishing going although of forum and the insurer for of these three "[n]one criteria court”). However, itself”); necessarily emphasiz into federal Ky. determinative cf. Plans, Miller, agreements generally that arbitration Ass’n Health Inc. v. 538 U.S. of 329, 338, preserve parties' 123 S.Ct. should be enforced to (2003) (explaining, regard albeit in the context selection of the arbitral forum without of ERISA, forum, judicial right mandating "that conditions on the to en- state laws verse-preempted by that the Louisiana requirement statute. rides Convention’s concedes, however, to arbi- present dispute be submitted if LSAT the Con- an act of tration because we construe Con- self-executing, vention is would be a invalidate, supersede impair, gress and not Act of within law. meaning McCarran-Ferguson of the Act. Ill The Underwriters addressed whether the Conven LSAT contends self-executing only only and could tion was not panel any depth, and not in briefs country have effect the courts of this maintaining if primarily instead even Congress passed enabling legislation. when self-executing, the Convention were not argues the Con Accordingly, LSAT implemented, once it remains a an “Act of enabling legislation is vention’s Congress” is not an “Act of within the meaning within the of the Congress” meaning Act. provision that McCarran-Ferguson Act’s It is unclear to us whether the Conven Act of shall be construed to “[n]o tion self-executing. invalidate, impair, supersede any recent Court’s decision Medellín v. Texa by any purpose enacted State for the interpretation s23 instructs that of a “[t]he the business insurance regulating ”22 statute, interpretation like the of a .... the Conven LSAT reasons Medellín, begins with its text.”24 In independent legisla effect tion has no Court examined the Vienna Convention on enabling it and that the McCarran tion requires Optional us to construe the Consular Relations25 and the Pro Ferguson re- enabling legislation Concerning Compulsory Convention’s tocol Settle tenuous,” Fabe, said, Supreme Court "the Arbi- is too see 508 U.S. at [Federal has Act, (‘FAA’)] ("The seq. preferences upon 1 et S.Ct. 2202 tration U.S.C. conferred policy favoring employees general 'declared a national arbi- and other creditors ... do tration,’ actually power escape pre-emption [by but 'withdrew the federal law] be- judicial require a forum for the the states to their aim cause connection to ultimate tenuous.”). contracting resolution of claims which the is too insurance parties agreed to resolve arbitration.'" We note that this court held in American Hutton, Inman, v. Lehman Mastrobuono Shearson Bankers Insurance Co. Florida v. Inc., (5th Cir.2006), that the Federal (1995) (quoting Corp. L.Ed.2d 76 Southland ("FAA”), seq. et Arbitration 9 U.S.C. Keating, 465 U.S. reverse-preempted by was the McCarran-Fer- (1984)). L.Ed.2d 1 guson dispute Act in the context of a between injured regarding insured and his insurer argued prohibiting It could also be that governed coverage underinsured-motorist agreements in enforcement of arbitration con- Mississippi law. We have no occasion to re- tracts between an insurer and a reinsurer is holding today. consider that The issue has “necessary” "protect policyholders,” not presented appeal. not been in this generally Program Design- see Garcia v. Island er, Inc., 57, (1st Cir.1993) (discuss- 4 F.3d 1012(b). 22. 15 U.S.C. ing holding filing Fabe and that Puerto Rico's proofs against deadline for of claims an insol- 491, 1346, 23. 552 U.S. 128 S.Ct. 170 L.Ed.2d company regulate did vent insurance (2008). meaning business of insurance within the Act because "it is at, for, 24. Id. at 1357. necessary neither directed nor that, protection policyholders”), at 77, context, 24, 1963, Apr. U.S.T. 596 U.N.T.S. least in this the Louisiana statute’s 25. "connection to the ultimate aim of insurance 261. obtaining enforcement of an arbitration Disputes ment of Vienna Convent judgment However, whether a Supreme ion26 to determine award.30 in- Court (ICJ) the International Court Justice in in dicated dicta Medellin that at least as domestic law “directly was enforceable provisions pertain- the Convention in a in the United States.”27 judgments to the enforcement of obligations imposed by Considering the international are not arbitration tribunals Article 94 of the United Nations Charter self-executing.31 in This reference Medel- treaties, in the Court con regard to those imply lin could be read to that the Con- provide cluded that “does entirety self-executing, vention is not comply ‘shall’ or ‘must’ United States although such a conclusion cannot be decision, nor indicate that the Sen ICJ any certainty drawn with from the brief ate that ratified the U.N. Charter intended opinion. discussion in the Court’s legal to vest ICJ decisions with immediate required Even if the effect in domestic courts.”28 Convention legislation implement some or all of its Applying reasoning Supreme courts, United States Medellin, Court in we are to consider what does not mean that Congress intended an says legal about its effect “Act of Congress,” phrase is used in domestic courts. The Convention ex- in the McCarran-Ferguson to encom pressly states that domestic “shall” courts pass non-self-executing treaty that has compel requested by arbitration when implemented by congressional been legis party agree- to an international arbitration lation. additionally Implementing legislation ment.29 The sets does forth procedures limited to be followed not conflict treaty32 with or override a does 24, 1963, Apr. §§ 26. language 21 U.S.T. 596 U.N.T.S. ... 201-208] Such demonstrates 487. knows how to accord domestic obligations effect to international when it de- Medellín, 128 S.Ct. 1353. The United (citation omitted)); sires such a result.” see agreed disputes arising States had to submit Co., also Scherk v. Alberto-Culver ICJ, out of the Vienna Convention to the but 520 n. recognized that "submit (1974) (observing, although refusing to decide ting jurisdiction agreeing to be bound self-executing, whether the Convention was things.” are two different Id. at 1358. The "Congress passed Chapter 2 of the United Optional Court observed that Protocol implement States Arbitration in order to "says nothing about the effect of an ICJ deci (citation omitted)). the Convention” signatories sion and does not itself commit comply judgment.” with an ICJ applies 32. The later-in-time rule to resolve conflict between a and a statute. See Id. at 1358. Egle Egle, Cir. 1983) Constitution, ("Under our treaties and Recognition Convention on and En equal dignity. statutes are If a and a Foreign forcement of Arbitral Awards art. inconsistent, statute are 'the one last in date II(3), 10, 1958, June 21 U.S.T. (omission will control the other ....’” U.N.T.S. 3. Robertson, original) (quoting Whitney v. 31 L.Ed. 386 III, 30. See id. arts. IV. (1888))); Medellín, see also 128 S.Ct. at 1359 Medellín, ("[A] ("Congress 31. See 128 S.Ct. at super n. 5 later-in-time federal statute up treaty provisions.”); is to the task of non-self- sedes inconsistent Breard treaties, Greene, 371, 376, executing 1352, involving even those com 523 U.S. (1998) plex disputes. curiam) judgments commercial (per 140 L.Ed.2d 529 (" enjoy a number subsequent of international tribunals a ‘[W]hen statute which is implementing leg different status because of time is inconsistent with a the statute by Congress, [citing islation enacted treaty 9 U.S.C. to the extent of conflict renders the above, treaty.33 A displace legislation. As noted replace LSAT treaty agreement remains an international that if provisions concedes in the Con- by negotiated or contract the Executive directing vention courts to enforce interna- Senate,34 Branch and ratified agreements tional arbitration were self- treaty imple- The fact that a Congress. executing, then the McCarran-Ferguson by Congress does not mean that it mented preemptive Act would have no effect be- treaty to be a and becomes an “Act ceases self-executing cause treaties are not an Congress.” Yet, Congress.” “Act of no appar- there is accept argument, To LSAT’s we must provided ent reason —and LSAT has no Congress that when “Act conclude used why Congress would have cho- rationale — Act, Congress” in the distinguish sen to in McCarran-Fergu- phrase it intended exclude self- treaty provisions son Act between that are executing provisions but to include self-executing and those that are not self- treaty provisions implemented by that are executing but implemented.35 have been legislation. federal This is untenable. We do not consider it reasonable to con- commonly meaning understood of an strue the term Congress” “Act of in the Congress” “Act of does not include a “trea- if ty,” treaty required implement- McCarran-Ferguson even Act as an indication ” Covert, (quoting foreign agricultural Reid v. null.’ 354 U.S. state and workers and to 1222, (1957) (plurali- "require the modification or termination of opinion))). ty any agreement with such extension ser- vice whenever he finds such action to be Percheman, 51, 33. See United States v. necessary carry in order to out the terms of 51, (1833) ("[The] 7 Pet. 8 L.Ed. 604 any treaty agreement or international understanding treaty] of the article [of signato- which the United States of America is must enter into our construction of the acts of ry”)- [C]ongress subject.’’). on the currently In other federal that are statutes effect, appear does not has II, ("[The 34. See U.S. art. cl. Const, "treaty” implement- used the term to exclude Power, by President] shall have and with the non-self-executing ed treaties. As an exam- Senate, Advice Consent of to make laws, ple, immigration in our the term “immi- Treaties, provided two thirds of the Senators grant” every except alien ... "means an alien concur____”). present entitled to enter into the United States under pursuance provisions and in of a appear distinguish does not navigation of commerce and between the self-executing implemented, between foreign and the States state of which non-self-executing using treaties when he ....” national 8 U.S.C. sense, "treaty” generally applicable term in a (a)(l5)(E). provision This would not pro as shown various statutes that were seem to exclude a that is non-self-exe- mulgated era in the when the McCarran- cuting implemented by but that has been Ferguson Act was enacted. See Revenue Act Congress. Act of 77-250, Pub.L. No. sec. 55 Stat. "treaty” It would seem that would include (1941) (amending certain treaties, implemented regardless all of wheth- of the Internal Revenue Code to exclude the they required er were or had application of those sections to residents of Yet, implementing legislation. if we were to long certain countries "so as there in effect implemented non-self-executing conclude that country provides with which otherwise”); nothing treaties can be more than "Act of Supply Appropria Farm Labor 78-229, Congress,” then none of the references Pub.L. tion No. sec. 58 Stat. "treaty” (authorizing or "treaties” in the enactments we the War Food Ad agreements ag implemented, have include ministrator to enter into discussed would colleges ricultural extension services of State treaties. This is not a rea- to furnish certain services to domestic inter- sonable enactments. construction these important present in the Equally permit intent to congressional (the Convention), case, not an it is a non-self-exeeut- implemented, preempt (the Act), that Congress Convention act of preempt not to but ing treaty provisions supersede Louisiana law.36 we construe treaty provisions. Act states that the Con The Convention Congress did not Our conclusion in “shall be enforced United States vention Congress,” as used “Act of intend the term chapter.”37 with this courts accordance Act, to reach a in tibie an arbi Act defines when Convention is but- treaty such as Convention under the Conven agreement tration “falls by the terms Convention tressed -principallywhen it is “commercial” tion”-— the FAA Congress amended Act. When ... [legal] out of “aris[e] and does not provisions that dealt to include relationship entirely which is between citi Convention, provided ... unless that zens of the United States proceed- § action or “[a]n U.S.C. property located relationship involves the Convention shall be ing falling under abroad, or enforce envisages performance the laws and trea- deemed to arise under abroad, or has some other reasonable ment This is direct ties of the United States.” foreign with one or more states.”38 relation thought that for indication that provides The Convention Act falling an action jurisdictional purposes, jurisdiction courts with over “[a]n States arose not under the Convention proceeding falling action or under the Con States but also the laws of the United regardless vention ... of the amount the United States. Ac- under treaties of controversy.”39 But the very in the act of cordingly, even refer operate does not this case without necessary implement arguably that was It ence to the contents of the Convention. courts, in domestic Con- legal agree is the Convention under which jurisdiction over ac- gress recognized “fall”;40 proceeding- ments it is an action or rights under the provides tions to enforce Conven- under the Convention solely jurisdiction;41 under an “Act of tion did not arise court with action or proceeding is “deemed to arise under the Congress.” argue § Forsyth, 39. Id. 203. LSAT does not that this 36. Humana Inc. v. Cf. statute, 307-10, jurisdictional jurisdictional or other 1331, invalidates, § statutes such as 28 U.S.C. (defining "to invalidate" to mean "to impairs, supersedes law. We ineffective, or Louisiana’s generally provid- render without skeptically look on a claim that the McCar- law”; impair” replacement "to rule deny diversity ran-Ferguson Act intended to weaken, worse, to mean to make "[t]o jurisdiction question jurisdiction or federal dimmish, relax, power, lessen in or other- in the Louisiana. See federal courts state of manner”; injurious wise affect in an "to Co., F.2d Grimes v. Crown Ins. Life (and displace supercede” "to thus to mean (10th Cir.1988). 702-03 ineffective) providing a render while substi- omitted)). (citations tute rule” 202; § § id. 40. 9 U.S.C. see also ("Where subject matter of an action or § 37. 9 U.S.C. 201. pending proceeding in a State court relates to falling agreement or award un- an arbitration Id. 202. There is no doubt Convention, may, ... der the the defendant present dispute among three insurers arises thereof, the trial remove such time before legal relationships that are commercial. out proceeding action or to the district court of upon explore We the outer are not called States____”). the United legal bounds of what "commercial” relation- ships may encompass. States,42 “subject capable lates a of and treaties” of the United matter settle- laws arbitration,” by being this case Conven- ment and is not “null and (the tion; void, title 9 chapter inoperative incapable being per- and when or of FAA) Convention, Accordingly, by conflicts with the formed.”46 it is reference applies.43 to the Convention that we have a com- Convention judicially remedy— mand —a enforceable Act directs us to the The Convention “supersede” that we Louisiana law unless implemented, it and when we “con- there are defenses set forth in the Conven- Convention, we are faced with strue” tion that counteract that command. Be- “superseding” the Louisi- possibility Convention, cause implement- here the requires ana law. The Convention ed rather than the Convention signatory recognize each nation “shall law, supersedes state the MeCarran-Fer- agreement writing par- under which the guson provision Act’s that “no Act of Con- undertake to submit to arbitration” ties gress” shall supersede be construed to “concerning subject matter dispute their state law regulating the business of insur- arbitration,”44 by capable of settlement ance is inapplicable. provides signa- for direct enforcement courts, tory nation’s which “when seized IV shall, request action ... at the covered] [a parties, parties of one of the refer the The dissent that an imple- contends arbitration, unless it finds that the said mented non-self-executing treaty is not a void, null agreement inoperative within meaning Suprema- of the being performed.”45 incapable cy Clause and cannot preempt state law. itself great respect, contains defenses to the With Supreme none enforceability of an agreement arbitration Court decisions dissenting cited by “in requiring writing,” regu- opinion that it is so hold.47 added). (1985). (emphasis 42. Id. L.Ed.2d 444 "Yet in by amendment to the Federal ("Chapter applies Id. to actions Act, Congress specify any Arbitration did not proceedings brought chapter under this matters intended to exclude from its chapter to the extent not in conflict "Doubtless, scope.” Congress may speci- Id. chapter with this or the Convention as ratified fy categories of claims it wishes to reserve for States.”). decision our own courts without contra- vening obligations this Nation's Recognition 44. Convention on the and En Convention.” Id. But the Court "decline[d] Foreign forcement of Arbitral Awards art. spirit to subvert of the United States' 10, 1958, II(1), June 21 U.S.T. by recognizing accession to the Convention U.N.T.S. 3. subject-matter exceptions where has expressly directed the courts to do so." Id. II(3). Id. art. added). II(1), (3). art. Plaintiffs have not raised single phrase Supreme 47. The from the arbitrability various defenses to that are avail Robertson, Whitney example, Court's decision in able under the Convention. For II(1) Court noted that "Art. 31 L.Ed. 386 Convention, (1888), relies, requires recognition post on which which the dissent agreements ‘subject weight assigned n. to arbitrate that involve cannot bear the arbitration,' capable quotes passage matter it. of settlement The dissent from Whit- contemplates exceptions arbitrability ney: legislation] relate "[w]hen [a grounded subject, always in domestic law.” Mitsubishi Mo to the same will courts Inc., Corp. Chrysler-Plymouth, give tors v. Soler endeavor to construe them so as to effect both, violating 639 n. if that can be done without non-self-exeeuting treaties.52 plemented from the Ninth Cir quotes The dissent Kreps,48 with Hopson consists of one or two in This “consensus” cuit’s decision quoted relatively the context of the re- providing publications of out sentences Circuit observed The Ninth passages.49 vintage, provide most of which no cent implementing statute that case that an analysis authority. The Re- or citation if plain meaning even Foreign given should be (Third) the Rela- statement treaty the interpretation conflicts with that the tions United States Law Ninth did not implements.50 it The Circuit (1987), scholarly comment h is the earliest no implemented treaty has hold that Reporter dissent. The source cited the significance, as the dissent independent that Restatement was Professor Louis for implies.51 Henkin, the en- arguably an advocate for treaty provi- implemented forcement of relies on a “consensus of

The dissent im- status of sions.53 legal regarding scholars” the cites, either; but, additionally post are 51. at 743- language of if the two The dissent ihe inconsistent, concurring opinion in Fund Ani the one last in date will control the other; mals, provided, always, stipulation Kempthorne, 472 the Inc. v. F.3d the J., (D.C.Cir.2006) (Kavanaugh, subject self-executing." treaty concurring) the on the is added). Foreign 8 S.Ct. 456 The (quoting (Third) the Restatement discussing well-recognized the Court was 111 cmt. the States Relations Law of treaty legis- principle when a of law that implementing ("Strictly, it h is conflict, by Congress passed itself, the latter lation legislation, agreement rather than the phrase by the in time controls. The italicized given effect as law in the United is only emphasizes context of dissent that in tire States.”)). majority opinion in Fund for containing phrase, the Court the sentence Animals, legislation held that if conflicts Inc. referring self-executing treaty to a be- was implements, implementing treaty it with a non-self-executing that cannot cause a legislation 472 F.3d at 879. controls. judicially be enforced cannot override stat- Whitney does not con- ute. discussion at 741-42. Post implemented whether an sider non-self-exe- cuting treaty may supersede prior legislation, self-executing 53. A discussion of and non-self- self-executing treaty may. just aas executing appears in at least two of treaties Similarly, quotations Henkin, dissent lifts publications, L. Professor Henkin's Cases), Edye (Head-Money v. Robertson Foreign United States Constitu Affairs 598-99, 28 L.Ed. 798 tion, Henkin, (2d ed.1996); For 198-204 L. (1884), of context. The out Constitution, eign and the United States Affairs Congress may, through held subse- (1972). 156-161 A footnote in former quent legislation, supersede that has "[s]trictly” appears contains the sentence that subject judicial cognizance "become Henkin, in comment h of the Restatement. L. country.” the courts of this Id. at Foreign United States Constitu Affairs However, tion, 1996). (2d 200 n* ed. he immediately following wrote that sentence (9th Cir.1980).

48. 622 F.2d 1375 "[sjometimes implementing legisla gives legal tion itself effect or incor 49. Post at 743. porates byit reference.” Id. Professor Hen- opined; kin also ("Thus, Hopson, 622 F.2d at 1380 where self-executing and The difference between persuaded proper to the courts have been commonly statute, non-self-executing treaties is interpretation of an misunderstood. Whether a is self- judgment [regarding the intended mean- not, legally binding executing it on the not been statute] of the terms of the has Whether it is reading given United States. affected the claim that the not, supreme it is law of the land. If was inconsistent with the intent of statute said, self-executing, it not "a parties treaty.”). Marshall non-self-executing Our court has exhibited an under treaty provisions be- implemented provisions of a standing come the “Law of the Land” under treaty can Supremacy themselves Clause. pres- Our task if, effect the courts given as federal ent case is to determine in enacting the law.54 The dissent concludes that we used in- “imprecise language” each of these tended for state law to reverse-preempt true, To the extent cases.55 we federal law that has as its an imple- source Supreme note that Court has non-self-executing treaty. used mented language similar to that which the dissent “imprecise.”56

labels V However, we need not and not precedent do under- There is that at the time of precise enactment, take to determine the or technical the McCarran-Ferguson Act’s treaties, implemented analyzed contours of how or whether courts even when imple- court”; suggest preme he expressed rule for the did not Court concepts itself these Texas, it is not law for the President or for Con- Medellín v. 552 U.S. gress. obligation (2008), It is their to see to it that although implemented; faithfully it is their obli- precise question imple of whether an gation necessary to do what is to make it a treaty implementing legislation mented or its treaty requires rule for courts if given are Supremacy or both effect under the courts, making it be a rule for the or if it a Medellin, Clause was not at issue. In necessary prop- rule for the courts is a or a said, "[w]hen, contrast, Supreme Court carry er means for the United States to out '[treaty] stipulations self-executing are not obligation. they only pursuant legisla can be enforced ” Id. 203-04. (altera carry tion to them into effect.’ Id. original) (quoting Whitney tion in v. Robert Fabricators, Specialty 54. See Lim v. Offshore son, 31 L.Ed. Inc., (5th Cir.2005) ("It 404 F.3d 902-03 (1888)). that, speaking This indicates that in goes saying upon without the United treaties, of even it is com signing treaty Congress adopting States monly thought treaty stipulations enabling legislation, treaty can becomes the added)); implemented by themselves be supreme (emphasis law the land." enforced once Int’l, Lloyds legislation. Similarly, Supreme McDermott Inc. v. Underwriters London, (5th said, sum, Cir.1997) comprise 120 F.3d 'may "[i]n while treaties (refusing to decide “whether the Convention they international ... are commitments added)); preempts (emphasis La. R.S. 22:629” law domestic unless has either en Sedco, Inc. Petroleos Mexicanos Mexican treaty acted statutes or the it Co., Nat’l Oil Cir. conveys self an intention that it be "self-exe " 1985) (holding agree that if an arbitration cuting” and is ratified on these terms.’ qualifies, requires ment "the Convention dis (citation omitted) added). (emphasis Here (emphasis trict courts to order arbitration” again, commonly- this statement exhibits a added)). Thus, "[b]ecause the United States conception treaty provision held that a can Convention, signatory is a and Con implement itself become domestic law once gress enabling legislation, enacted the Con ("Whether ed. See also id. at 1356 n. 2 applicable vention is as federal law in this depends upon has domestic effect Lim, case.” 404 F.3d at 903 add implementing legislation passed by Con ed). ("[N]one gress.”); id. of these sources binding creates federal law in the absence of 55. Post at 743-44. ....”); implementing legislation id. at 1369 (recognizing giving "two ... means do parlance, implemented In common mestic effect to an non-self-executing treaty provision international obli can be Constitution,” land, gation under the "enforced” of the which are the and a non- self-executing treaty provision making self-executing treaty of a can become and the im implemented. plementation non-self-executing treaty). "domestic law” when The Su- of a they cannot be rightly or treaties. decided Congress, as an Act of merited treaty power. decision Missouri accepted Court’s as a test treaty followed that a v. Holland57 reflects law of supreme are the Acts of legislation remains by implementing in pursuance made the land when relevant, that, is viewed as where Constitution, treaties are while Congress. The an Act of distinct under the to be so when made declared a non- had consummated United States authority of the States.63 Britain treaty with Great continued, The Court An act was birds.58 protect migratory passed treaty.59 The State mitted to the states the statute killing of ing the mulgate prohibit Secretary’s regulations, arguing by regulations giving Secretary the enforcement regulations migratory interfered by the Tenth Amendment.60 effect to this of Missouri birds Agriculture compatible with the of this Act and prohibiting rights except treaty, direct sought to reserved per pro may power; treaty followed for the no a different Congress could not deal [w]e qualifications be do not national well matters of the but way. It is obvious that there mean to they must be ascertained to the imply being sharpest exigency with but that a treaty-making that an act of an act could there are act earlier “[a]n observed The Court that “but for the trea- The Court assumed attempted by itself and Congress that regulate be free to ty the State would treaty regulate of a pursuance not in it- birds within its [migratory boundaries] migratory birds within the States killing of explained, But the “[v]alid self.”65 Court Supreme held bad.”61 The had been binding are as within treaties of course Court, however, recognized a difference they are limits of the States as territorial Congress acts of under the Com between throughout the dominion of the elsewhere treaty “a followed merce Clause continued, The Court United States.”66 act,” to the pursuant as authorized such an great body private rela- doubt the “[n]o va Necessary Proper Clause.62 The of the usually tions fall within the control lidity implementing legislation of the State, treaty may pow- override its but turned Necessary Proper Clause treaty er.”67 Because the was constitu- constitutionality treaty on the —even tional, ultimately con- Supreme Act of implemented by it though was said, “that the and statute must cluded Congress. The Court Court decided upheld.”68 [holding the two cases cited [w]hether 1920, Congress passed Congress were Holland so when prior Acts of “bad”] Id. S.Ct. 64 L.Ed. 641 63. 57. 252 U.S. (1920). Id. 64. S.Ct. 382. 58. Id. at 65. Id. at 40 S.Ct. 382. 431-32, 59. Id. at 40 S.Ct. 382. (citations quotation and internal marks 66. Id. omitted). 430-31, 40 S.Ct.

60. Id. at 382. 67. 382. Id. at S.Ct. Id. at 40 S.Ct. 382. Id. at 40 S.Ct. 382. McCarran-Ferguson intent, Act two decades law. If this had Congress’s been it (and the Convention Act half a centu- probable Congress later seems would have later), it that a ry was well aware a term any treaty included such as “or requiring implementation, if was dis- even requiring congressional implementation” Congress tinct from an Act of and could following “Act Congress” and “such authority serve as the source of to “over- Act” in the McCarran-Ferguson Act.70 power.”69 ride [a state’s] There is no indication in the McCarran- intended, Ferguson Congress it unlikely We think that when through the preemption provision in- and the crafted the treaty implemented by use of the term “Act of Congress,” tended future abrogated an Act of to be ability restrict the United States’ nego- that, extent conflicted in some implement fully tiate and way regulating through with a state law the busi- application to a broad range of Congress’s implement- ness of insurance if international agreements, affects some as- ing legislation expressly did not save the pect of international agree- insurance reverse-preemption state ments.71 434, clear, Id. at 40 S.Ct. 382. point As the text itself makes McCarran-Ferguson’s legislative choice of 1012(b). 70. 15 U.S.C. leaving regulation generally insurance congressional pre- States was to limit Garamendi, Am. Ins. Ass'n v. 539 U.S. Cf. emption power, under the commerce 2374, (2003). whether dormant or exercised .... [A] In American Insurance Association v. Garam- federal endi, implied preemp- statute directed to Supreme Court considered whether law, by legislation tion domestic aiding commerce can- a state aimed at Holocaust victims by requiring sensibly pre- insurers to disclose information be construed to address policies Europe about insurance emption sold in be- by foreign executive conduct in II, during fore and War World interfered with affairs. government’s foreign the federal conduct of 427-28, Although Id. at 123 S.Ct. 2374. ad relations. 123 S.Ct. 2374. The dressing agreement, an executive not a President had entered an into executive holding the Court’s is nonetheless relevant agreement Germany’s chancellor in signaled here. The Court that the McCarran agreed which the United States that whenever Ferguson Act “implied preemp is focused on company a German was sued an American legislation,” tion domestic commerce claim, regarding a Holocaust-era consummating foreign executive conduct in government United States would submit a course, case, agreements. Of in this we are adjudicating statement that such a claim was dealing treaty-making with the President’s au against “foreign policy the United States' in- thority, treaty-approval authority, the Senate’s terests.’’ Id. at 123 S.Ct. 2374. The Congress’s authority implement fa Supreme “[gjenerally, Court observed that treaty pursuant cilitate such a to the Neces agreements ... valid executive are fit to sary Proper Clause. See U.S. Const. art. law, are, preempt just as treaties and if II, (“[The cl. 2 President] shall have agreements expressly preempted here had Power, by and with the Advice Consent of law], [California’s laws like the issue would be Senate, Treaties, provided to make two 416-17, straightforward.” Id. at ”); present thirds of Senators concur .... (footnote omitted). implied Because an Holland, existed, Missouri v. ultimately conflict the Court conclud- (1920) ("If S.Ct. 64 L.Ed. 641 preempted. ed that the state law was Id. at 420-27, addressing dispute 123 S.Ct. 2374. In Cali- is valid there can be no about the argument validity fornia’s that in the McCarran-Fer- of the statute under Article Section guson "Congress authorized state laws of necessary proper as a exe means to enacted],” [the] [California sort had the Court Government.”). powers cute the said, are determining In which arbitration.”77

VI said, not, the Court to arbitra that referral conclusion Our policy “[j]ust congressional as it is the case is bolstered proper tion in the Federal Arbitration manifested national sanctioned eongressionally liberally to con- requires Act that courts of international favoring arbitration policy scope agree- of arbitration strue the In Mitsubishi agreements. commercial Act, it by that is the ments covered Chrysler-Plymouth, Corp. v. Soler Motors expressed intention congressional Inc.,72 considered Supreme Court on which the courts some other statute Ar “arbitrability, to the Federal pursuant identify any category of rely must [Convention], of Act and the bitration agreements to which to arbi- claims as arising the Sherman Act and claims trate will be held unenforceable.”78 a valid arbitration encompassed within explained Court federal in embodying agreement clause congres- antitrust law did not show such a commercial transaction.”73 ternational said, Importantly, the sional intent. claims were arbitrab The Court held such if in- must assume “[w]e It interna emphasized “[a]s le.74 protection afforded tended the substantive in recent dec expanded tional trade has given protection statute to include ades, international so too has the use of right judicial to a against waiver of arising in disputes arbitration to resolve forum, intention will be deducible of that trade.”75 The Court the course legislative history.”79 We dis- from text or admonished: intent in the cern no such deducible they place If are to take a central Act. MeCarran-Ferguson order, courts legal international national Act Although MeCarran-Ferguson judicial off the old will need to “shake strong policy the states embodies arbitration,” also then- hostility to regulation an interest in the of the have customary unwill- and understandable insurance, concerns that a business ingness jurisdiction to cede of a claim regulatory policies regarding such state’s arising foreign under domestic law to a may recognized not be in an contracts To this ex- or transnational tribunal. international arbitration are ameliorated tent, least, necessary at it will be for by provisions in the Con- the substantive national courts to subordinate domestic refusing not a vention and are basis arbitrability notions of to the interna- go As require that an arbitration forward. arbi- policy favoring tional commercial Supreme observed in Mitsubishi tration.76 regard to the substance of federal law, process, In the Court ex- “[h]aving permitted antitrust the arbi- forward, im- plained go that “not ... all controversies tration to the national courts opportu- will statutory are suitable for of the United States have the plicating rights 638-39, (quoting S.Ct. 3346 Ku- 72. 473 87 L.Ed.2d 76. Id. at (1985). Amtorg Trading Shipping Co. v. lukundis (2d Cir.1942)). Corp., 126 F.2d (citations 73. Id. at omit- 105 S.Ct. 3346 ted). 77. Id. at 105 S.Ct. 3346. added). 626-27, Id. Id. at 105 S.Ct. 3346. 78. Id. at 105 S.Ct. 3346. at 105 S.Ct. 3346. stage country until nity provi- the award-enforcement unless and those interest legitimate ensure that the implemented Congress. But, sions are laws enforcement of the antitrust has been submit, we ques- this does not answer the is true of addressed.”80 The same sub- tion of what Congress intended when it that applies stantive Louisiana law Congress” used the terms Act of “[n]o agreements presently reinsurance at issue. “such McCarran-Ferguson Act” in the why Congress would have addressed

VII only treaties required implementation We are aware that our decision conflicts by Congress. of the The text McCarran- in Stephens with that of the Circuit Second Ferguson support Act does not the inclu- v. American Insurance Co.81 International by implication “a implement- sion That that “the Convention is not case held ed an Act of Congress.” Because we therefore, self-executing, upon relies give phrases of Congress” “Act implementat an Act of for its usual, “such Act” commonly their under- ion.”82 The concluded that Second Circuit meaning, we imple- stood conclude that Congress’s legislation “implementing [did] treaty provisions, mented self-executing or Kentucky statute that preempt”83 a not, are not reverse-preempted by state “subordinated” all “choice of law or arbi pursuant McCarran-Ferguson tration in a contract to which provisions” Act. We find no indication the text liquidation proceed insolvent insurer in of the Act that Con- ings party.84 was a reasoned gress signal intended to distinction be- treaty] import that “when [a the terms of tween self-executing and non-self-execut- parties contract —when of the en either ing-but-implemented treaties act, particular gage[s] perform McCarran-Ferguson’s reverse-preemption political, addresses itself clause. judicial department; legisla and the contract, ture must execute the before it We also note reasoning that the can become a the court.”85 rule for in Stephens Second Circuit v. American quoted court then Act of “[n]o Con International Co. is at Insurance least gress” provision McCarran-Fergu in the subsequent tension with that of its decision said, “[a]ccordingly, son Act and the imple Stephens in v. National Distillers & menting legislation preempt does the Corp.,87 Chemical in the Second which Cir Kentucky Liquidation Act.”86 cuit McCarran-Ferguson held that the Act did not requiring cause state law out-of- course, agree, We that when post security par state insurers to before of a are not self-execut ing, in they ticipating proceedings preempt cannot be enforced a court in court to 80. 83. Id. at 3346. The Court Id. S.Ct. "[wjhile efficacy observed that of the the arbi- process requires tral that substantive review 84. Id. at 43. stage at the award-enforcement remain mini- mal, inquiry require it would not intrusive to Id. at 45. cognizance ascertain that the tribunal took actually the antitrust claims and decided them.” Id. Cir.1995). Cir.1995). (2d (2d 87. 69 F.3d 1226

81. 66 F.3d 41 Id. at 45. ruling rights Act.88 the the Sovereign Immunities court’s Foreign the ground alternative assignable. of its first The order support policies In are em- holding, Circuit rea- for that Second ruling, August dated bodying federal law to “apply that it must soned has not been certified the district spite' industry, the insurance 1292(b). § under 28 U.S.C. We therefore McCarran-Ferguson feder- whenever jurisdiction lack to consider it.92 appellate clearly displace all state al law intends contrary.”89 McCarran- laws to Act not “force federal law

Ferguson does other clearly preempt intends to all We the district court’s order VACATE give way simply because the laws state denying compel the motion to arbitration involved.”90 In a industry is insurance proceedings and REMAND further statement, appended to this footnote opinion. this consistent with additional, court concluded because (that ground international

alternate CLEMENT, the state insurance law before EDITH BROWN Circuit preempted McCarran-Fergu- passage both Judge, concurring judgment: Sovereign and the Immu- son Act Federal I hold that would the relevant Act) supported holding, it “need nities Convention, II provision, Article is apply decision [its not consider whether self-executing therefore clearly when federal law it was intended Louisiana preempts Revised Statute all in conflict displace is law] Supremacy virtue of the 22:868 holding [Stephens American v.] [Inter- Clause. This result dictated Co.].”91 national Insurance Court, most decisions of re sum, In Texas, cently in 552 U.S. Medellín not cause Revised does Louisiana Statutes (2008), S.Ct. reverse-preempt 22:868 Conven- differentiating self-executing non- regard dispute us. tion with before self-executing treaty provisions. The con VIII II pos clusion that Article avoiding added benefit of a diffi sesses the Safety finally We consider Nation question,1 namely cult request that we affirm district constitutional what al’s thority, S.Ct. 88. Id. at 1231. (1936) (Brandeis, J., concurring). L.Ed. 688 89. Id. at 1233. commonly Although principle invoked statutory the canon avoidance con 90. Id. struction, Martinez, 371, Clark v. 543 U.S. see S.Ct. L.Ed.2d 734 125 160 Id. at 1233 n. (describing choosing tool for canon as "a plausible competing interpretations between Corp., 92. See Yamaha U.S.A. v. Cal- Motor text”), courts, including statutory of a this houn, 199, 205, 516 U.S. 133 one, interpreted treaties to have also avoid (1996) ("The appeals L.Ed.2d 578 See, questions. e.g., Parretti v. constitutional may beyond not reach the certified order States, (9th 769 F.3d Cir. case.”). address other orders made 1997), grounds, en hanc rev'd on other banc); (9th Cir.1998) (en pass upon Caltagi 1. "The Court will not a constitu- F.3d 508 Grant, (2d properly question although presented rone v. 747-48 Cir. tional F.2d record, 1980); Hidalgo by present County Water Control and there is also some if cf. Hedrick, upon Improvement ground may Dist. No. 7 v. F.2d other which case be Cir.1955) (5th ("‘We Valley seek to disposed of." v. Tenn. Au- 6-7 should Ashwander (if any) effect preemptive non-self-execut- selves function as binding federal law.” implemented but provisions 128 S.Ct. at 1356. The Court traced this Supremacy have under the Clause. The Neilson, distinction to Foster v. in which majority pro- convinced Chief Justice explained: Marshall effect, full preemptive pro- visions have Our constitution declares a treaty to be ceeding on the II assumption Article is, the law of the land. It consequently, dissent, is not self-executing. The mean- regarded justice courts as while, persuasively majority’s refutes the equivalent to an act of the legislature, question, answer to the constitutional but operates whenever of itself without disposition on a finding relies that no any legislative the aid of provision. But provision of the Convention is self-execut- when the terms of the stipulation import ing. opinion Neither confronts impor- contract, when either of the parties question tant antecedent whether Article engages perform act, a particular II in fact self-executing.2 The opinions’ treaty addresses itself to the political, contrasting interpretations Suprem- of the judicial department; and the acy unnecessary Clause are to decide the legislature must execute the contract be- plain case because the text of Article II of fore it can become a rule for the Court. compels a finding of self- execution. (2 Pet.) 253, 314, 27 U.S. 7 L.Ed. 415 (1829). That non-self-executing provisions Medellin,

In “recognized depend upon congressional distinction between treaties that automati- legislation cally law, to take effect have effect as as domestic enforceable those they recognized that —while constitute domestic law was early interna- as as tional law Robertson, commitments —do not them- Whitney avoid, possible, event, adjudging if a decision any trea and that in the Convention is self- ty executing, to be in conflict with the Constitution. It is which require means that it did not necessary to a an act decision in this case for us to have effect in United pass upon question States of whether the courts. Underwriters assert that a prohibitions self-executing treaty supercedes is violative of the 'later-in-time ” Constitution, (em- a federal Federal we statute if there is a would be com conflict.' added)). phasis pelled treaty required to do if the the con struction Appellants.'" contended for addition, In none of the cases cited Co., (quoting Amaya v. Stanolind Oil & Gas party dissent establishes that a suffers waiver 1946))). Cir. repeat should it fail to to the en banc court every argument panel. that it made to the conclusion, Contrary to the dissent's the Un Further, context, language read in taken derwriters have not waived the self-execution by the dissent from the Underwriters’ banc en argument. opening In their pan brief to the reply brief does not concede the self-execution el, they treaty provision contended that the point. heading As the preceding section self-executing by stressing was their reliance clear, language makes the Underwriters ad- "solely upon of Article II of the "primaiy” question "[p]osed by dressed the ... special imple and not on Appellant [p]anel.” Reply En Banc Br. 6. menting legislation.” Appellant Br. 33 n. 17. penalized Underwriters should not be for fo- argument presented That pan was cusing briefing their major en banc on the plainly el opinion. Safety reflected in its panel. Relatedly, issue addressed Corp. Nat'l Cas. v. Certain Underwriters at complain LSAT cannot that it lacks notice of London, Lloyd’s, 543 F.3d 749 Cir. ground disposition self-execution as a for be- 2008), reh’g vacated granted, en banc cause its en banc brief understands the self- (5th Cir.2009) ("The F.3d 599 contested, Underwriters question urging execution to be maintain that the Convention was ratified af court to "find ... that the Convention was not ter the self-executing.” Appellee Act was enacted En Banc Br. 27-40. Medellín, (1888) (“When text.” begins with its L.Ed. 386

S.Ct. they 1357; (identifying at self-executing, see id. 1361-62 at are stipulations legisla- pursuant expression” to as the focus only “explicit enforced textual can be ”). .... Although Self- carry analysis). into effect tion to them the self-execution hand, on the other executing provisions, expressly held has never Supreme Court oper- make them legislation to “require may no treaty provisions individual and effect of “have the force entirety ative” self-executing, while a enactment.” legislative be, inescapably law leads may not its case early Whitney, as conclusion. As to this treaty provision, relevant The text of the two between the differentiated II, provides: Article types provisions: recog- Contracting State shall 1. Each writing agreement nize are not self-exe- stipulations When to undertake to submit parties which pursu- be enforced cuting, they can any which all or differences arbitration carry them into legislation ant to may between or which arise have arisen effect, is as much legislation and such legal rela- respect of a defined them repeal subject to modification not, tionship, contractual whether upon any other congress legislation capable of concerning subject matter stipula- subject. If the contains settlement arbitration. is, self-executing, that are tions which writing” “agreement 2. The term op- legislation to make them require no in a con- an arbitral clause include shall erative, they have the to that extent agreement, an arbitration tract enact- legislative effect of a force and in an or contained signed by parties ment. exchange telegrams. of letters or 456. More recent- 124 U.S. at State, Contracting The court of a “obligation noted its ly, the Medellin Court in a matter in of an action when seized treaty provisions to determine interpret made parties of which the have respect self-executing.” they are whether meaning of this within the agreement added).3 (emphases S.Ct. article, shall, one of the request at the arbitration, parties refer the parties, concern here is Section particular Of agreement it finds that the said unless II, that domestic provides of Article which void, incapable of inoperative or null and courts, request litigant, of a shall upon being performed. agreement enforce arbitration referring party by is a litigant which that courts with a provides lower Medellin Section 3 parties arbitration. determining for whether framework Contracting to the courts of addressed The Court self-executing. are provisions States, or to to the States themselves interpretation made clear “[t]he Further, statute, respective legislatures.4 of a their interpretation like the render the entire instance —does not a similar conclusion. 3. This court has reached plain Postal, non-self-executing, especially when the See United States contrary. II counsels to the (5 Cir.1979) text of Article (recognizing the United th capacity to into a multilateral States's enter II, a refer- treaty containing which do not re- 1 does contain 4. Article Section States, Contracting provides legislation). which quire implementing The fact ence to other, recognize" States "shall arbitration provisions of the Convention that such unrelated Any suggestion refer- legisla- agreements. that this contemplate future could be read XI, Article II ence renders implementation X and tive —Articles 735 a “court ... shall of itself without provides legislative 3 that the aid Section arbitration.” parties ... refer the Re- Cases, Money In the Head provision”). mandatory, to arbitration is not dis- ferral explained Court that when a cretionary. Treaty setting treaty provision “rights ... addresses of a international such man- obligations forth justice, nature to in a court be enforced datory tilt toward strongly terms self-exe- that treaty court resorts a rule (distin- 1358, cution. See id. at n. 1359 5 of decision for the case before it it as treaty language guishing between Edye Robertson, v. would to a statute.” action, to future constitutes a commitment 580, 599, 247, 112 U.S. 5 S.Ct. 28 L.Ed. 798 comply,” as “undertakes to and such Cases]; id. at Money [Head 598-99, “must”). language using “shall” or (“A then, 5 247 treaty, S.Ct. is a law of the The text of Article II constitutes “a di- is, land as an congress act of whenever its rective to domestic courts.” provisions prescribe by a rule which the (identifying the failure Article 94 of the rights of private subject citizen may Nations charter include a di- determined.”). be terms of Article II a rective to domestic courts as basis for a merely do not rights describe arbitration non-self-execution). finding of It leaves no which are a “of nature be enforced in a political to the branches of the discretion justice,” court of expressly but instruct government whether to make en- federal rights by courts to enforce referring those agreement-enforcing forceable the rule it parties short, In to arbitration. Arti- instead, rule prescribes; is enforce- cle II of the Convention is self-executing terms.5 See by own able the Convention’s Foster, fully in domestic by enforceable courts (declaring 27 U.S. at operates operation.6 to be “whenever it its own recog- It entitled to (1985). by overcome the fact that Section 3 sets forth It follows whatever Con- specific gress’s ability mechanism —enforcement refer- specify when an arbitration void,” ral to tasks the arbitration —and courts of agreement is "null and a state law is States, Contracting legislatures, not their powerless "utility to undermine the of the recognition. accomplishing promoting process Convention in of inter- national commercial arbitration.” Id. plausible argument 5. There is a that the "null II, language and void” of Article Section 3 pointed prior 6. The Medellin out that in permit would domestic to refuse to cases, text, treaty's addition to had agreement enforce arbitration because aof treaty's] "also considered 'aids to [a as inter- contrary state law such as 22:868. Howev- pretation' negotiation drafting history er, Co., in Scherk v. Alberto-Culver Su- post-ratification of the 'the well as preme Court heeded the "concern that courts understanding’ signatory nations.” signatory agreement which an countries in (quoting S.Ct. at 1357 Zicherman v. Korean sought to arbitrate enforced should Co., 217, 226, Air Lines 516 U.S. 116 S.Ct. permitted not be to decline enforcement of 629, (1996)); see also Air agreements parochial on the basis of Saks, France v. 105 S.Ct. desirability views of their or in a manner that (1985) ("Treaties 84 L.Ed.2d are mutually binding would diminish the nature liberally private agree- construed more than agreements.” 520 n. ments, meaning may their (1974). and to ascertain we 41 L.Ed.2d Fur- ther, beyond history look Corp. the written words Mitsubishi Motors Soler Inc., prac- Chrysler-Plymouth, negotiations, and the the Court acknowl- edged parties.” tical adopted construction "catego- could carve out added) (quotation ries of claims it to reserve for decision alteration wishes clear, courts,” omitted)). our own made no Because text is I but mention of capacity rely individual to do see on states' so. 473 U.S. no need to such extra-textual interpret meaning. 639 n. 87 L.Ed.2d "aids” to 736 Court See id. at of the Land” International of Justice. supreme “the Law

nition as (“The question confront here is we U.S. Const. Supremacy Clause. has automat judgment whether the Avena VI, art. cl. legal that the judg ic domestic effect such to the Convention references Certain in state applies ment of its own force Medellin Act Convention original)). courts.” in federal Circuit, court Court, and this the Second The dictum cited the Convention Court’s contrary position. I support arguably ability exemplar Congress’s Act as an why case. is not the briefly explicate judgments “domestic to the accord effect” Medellin, the cited the Conven Court In of similar international tribunals. The proposition “[t]he Act for tion “recognize ar obligation States’s of international judgments of number binding” awards as is set forth in bitral enjoy different status because tribunals n.7 It Article III of was the Conventio legislation enacted III, II, Article not Article therefore Medellín, at 1366. Congress.” Medellin was addressing. that the language to state: dem It on “Such went II, Article Article III contains no Unlike Congress to ac knows how onstrates language addressed to the courts Con effect obli cord domestic to international tracting addresses States instead itself a result.” Id. gations when desires such Contracting States themselves. nar majority construes this dictum obligation[ “international to which ]” read to rowly, opining it “could be according was “domestic effect” entirety in imply that the Convention spelled therefore the out Arti was one self-executing, a conclu although such recognition III: arbitral cle awards certainty any cannot sion be drawn with binding as and enforceable. That Con from the brief discussion the Court’s perceive enact gress a need to im would I that the dic opinion.” would conclude Article plementing legislation to render III little support tum offers view says enforceable domestic courts noth in all status, ing about Article II’s self-execution respects. II, where, unlike Article especially Article Importantly, explicit Medellin itself concerned III lacks an to “[t]he directive enforceability of a I would judgment Contracting of a State.” note, however, subject judicial cognizance I would that the existence of become the subject Convention is not inconsistent with a country, of this the courts it is self-executing. finding that Article enforcement, II is On congress may pass as acts for its 31, 1970, Congress July passed the Conven- modification, repeal.”). or Act; the United acceded to the tion States September states, and its Convention on III 7. Article in full: entered December accession into force on Contracting recognize Each State shall ar- prior That acted to accession binding awards as and enforce bitral them taking suggests effect the Convention Act procedure accordance rules of with the upon intended to was establish limitations territory of the the award is relied where domestic enforcement Convention in upon, under the laid down in conditions before it would take courts otherwise effect. following not be articles. There shall im- Robertson, Whitneyv. See posed substantially more condi- onerous (1888) ("Congress L.Ed. S.Ct. higher charges on the tions fees or rec- may modify [self-executing] provisions, so far ognition or enforcement of arbitral awards States, they supersede bind the United Cases, applies which this than are altogether.”); Money them Head (“[S]o imposed recognition on or enforcement far as a made foreign United States with nation can of domestic arbitral awards. II having Court as indicat- Because Article of the read the Medellin Convention mandates enforcement arbitration is ed that the Convention non-self-execut- it agreements, conflicts and with therefore ing. basis, Louisiana preempts law. On this I Meanwhile, Circuit, in the Second Ste- would vacate the district denial court’s International Insur- phens v. American to compel the motion arbitration re- Co., ance concluded “the Convention further proceedings. mand for therefore, self-executing, relies is not Congress upon implemen- ELROD, an Act of for its Judge, JENNIFER W. Circuit (5th Cir.1995). JERRY E. tation.” whom SMITH and 66 F.3d GARZA, Judges, join, M. court, however, EMILIO Circuit textual The undertook no dissenting: sup- forth analysis and set no reasons Moreover,

port the case conclusion. Today court that an concludes Act of Medellin, pro- was before which decided is not Congress really Congress. an Act of critical courts for guidance vides lower so, In doing holds that a non-self-execut- are determining when treaty,1 the on Convention the Recog- Similarly, of nition and self-executing. panels Foreign other Enforcement of Arbi- (Convention), tral preempts Awards2 a appear this court to have concluded state law. Because a whole, a was as enforceable itself provide cannot rule of deci- only passed after Convention courts, sion U.S. candidate for Again, predate Act.8 these decisions of federal preemptive source law with and do instructions set forth Medellin force the Supremacy Clause is the appear specifically to have considered implements treaty. statute that The the text of Article II. requires Act3 may judi- Although growing there be a federal statutes affect the business of cial that multilateral are consensus treaties explicitly. insurance do so The imple- my con- presumptively non-self-executing, so, statute menting does not do and it is II clusion that Article is Convention powerless to preempt therefore state law. compelled by straight is reason, For district ruled application binding Supreme forward and I correctly, respectfully dissent. precedent. majority and dis- I. bypass question. sent I the self-execution hew, must, would instead as we today The court errs in what should plain language of Medellin and conclude have been exercise in garden-variety interpretation: that Article II self-executing. statutory instead of an Fabricators, Specialty question 8. See Lim v. of whether or not the Offshore Inc., Cir.2005) ("Be (5th 404 F.3d self-executing is not the court. before See signatory cause the United States is note 31. infra Convention, enabling enacted legislation, applicable the Convention is Recognition 2. The on the Convention En- case.”); Sedco, federal Inc. v. in this Awards, Foreign forcement of Arbitral June Co., Mexican Petroleos Mexicanos Mat'l Oil 21 U.S.T. 330 U.N.T.S. 3. ("The Cir.1985) (Convention). negotiated pursuant Convention was Treaty power. Congress Constitution's then §§ 3. 15 U.S.C. 101-115. adopted legislation enabling Con make the land.”). highest vention the law of the statute, may not legis applied of whether the mented swering question (the directly lation Convention in U.S. courts. Act)4 Congress” “Act of meaning of the McCarran-Fer

within A. approach5 guson the court frames its inquiry an into whether the Convention as The court’s to frame this case as a effort court no Congress. is an Act of The itself the conflict between Convention itself dubi longer explicitly panel’s endorses the puts the cart the Louisiana law before fol “hybrid” holding treaty that “the ous by preemp to consider failing horse basic implementing legislation the lowed analyzing tion doctrine before the McCar parts, as the of its must be considered sum is ran-Ferguson Fundamentally, Act. However, fail piecemeal.”6 the court’s not a case. Supremacy Clause See Munich at outset right question ure to ask the Crawford, Am. v. 141 Reinsurance Co. inevitably to its incorrect conclusion- leads Cir.1998) (5th (“Ordinarily, 590 F.3d itself, that the a non-self-exe Convention law law preempts conflicting federal state cuting treaty, preempts Louisiana statute.7 Supremacy virtue of The Clause. novelty is a doctrinal holding Th is Act McCarran-Ferguson reverses ef creation, is no as there our circuit’s own ” (citation omitted)). .... fect From holding that a precedent non-self-execut Clause, perspective Supremacy Lou itself, ing treaty, power in and of has the § applies isiana Revised Statute 22:6298 trail preempt to law. court’s state carry unless Underwriters the burden blazing holding split also a circuit creates specific to show that of feder some source against goes with Second Circuit and If preempts proposed that a al law it.9 other circuits that have concluded imple if non-self-executing preemptive even law is statute like the Con- §§ regulating 4. 9 U.S.C. state law of in- 201-208. sede business inapplicable.”). surance is ("[I]t Op. 5. See at 718 is we construe when Despite the court’s belief that it not "need super- ... that the state at issue is do[es] not undertake determine the seded.”); ("[I]t (the Op. at 724 is a precise or technical contours of how Convention), (the not an act of Con- implemented non-self-executing whether trea- Act), supersede we vention construe to ty provisions the 'Law the Land' become law.”); Op. Louisiana see at 722-23 also Clause,” Supremacy Op. ("The equal fact that a on foot- stands necessarily what must that is do in order to legislation implemented with when justify framing approach inquiry as into not mean ceases to be a ” does that it itself Convention is an "Act of whether Congress.' treaty and becomes an 'Act of Congress.” Part II. See infra (footnote omitted)). January § 8. Effective 22:629 has Compare Safety Corp. Nat’l v. Certain Cas. § been renumbered 22:868. See La.Rev.Stat. London, Lloyd's Underwriters at 543 F.3d 2009). Pamphlet § (Special Ann. 22:868 A (5th Cir.2008), reh’g granted, vacated provision at all was numbered 22:629 (5th Cir.2009), Op. F.3d at 717- times relevant to this suit. ("[T]he McCarran-Ferguson Act does not apply add- the Convention. ...” Corp. Utility AT&T v. Public See Comm'n of ed)); ("Because Op. at 725 here the Conven- Tex., ("The Cir.2004) 373 F.3d tion, implemented treaty, than the rather persuasion preemption burden of cases lies Act, law, supersedes seeking party with the the state annulment of statute.”) McCarran-Ferguson provision Act’s that 'no (citing Mgmt., Green Fund Asset L.P., (3d Cir.2001)). super- Congress’ Act of shall construed McCarran-Ferguson ney, vention then Court described the self- applies. proposed preemptive If the executing/non-self-executing distinction as itself, law is the Convention then the follows:

is correct that does A is primarily a contract between there still apply. preemp- But no two or more independent nations .... tion—and the district court be af- must stipulations When the are self-exe- actually firmed —unless they cuting, can pursu- be enforced capable superseding 22:629 mat- as legislation carry ant them into Supremacy ter of Clause law. It is not. effect, and such legislation as much subject repeal by modification and A crucial distinction between a self-exe- congress legislation upon other cuting treaty one subject. If treaty the stipula- contains former, latter, is that the but not can the self-executing, is, tions which are that provide judicially-enforceable a of source no require legislation make to them op- preemptive Supremacy law the erative, they to that extent have the Neilson, Clause. with Beginning Foster v. force and effect legislative of a enact- (1 Pet.) 253, (1829), 27 U.S. 315 and as ment. Texas, recently v. as Medellin 190 124 L.Ed.2d at U.S. 8 S.Ct. 456. The Court

(2008), repeatedly the Court has then the Supremacy described Clause im- only affirmed that self-executing plications treaties of self-executing having treaties operate own a by provide equal standing their force to with Similarly statutes.11 Cases, rule of the decision in courts.10 Non-self- in the Head-Money the Court dis- treaties, executing in contrast “can tinguished purely obligations international pursuant legislation carry enforced to flowing non-self-executing treaty pro- them into Id. at (quoting effect.” visions from domestic obligations, recog- Robertson, Whitney Clause, 8 nized the Supremacy flowing (1888)). S.Ct. 31 L.Ed. 386 In Whit- from self-executing treaty provisions.12 In either; but, argument, 10. There text language is an based on the of of if the two are incon- Clause, sistent, Supremacy the that the Constitution one the last in date will control the recognize species treaty. should not two always, stipulation provided, other: the all, provides After "Consti clause (em- subject treaty self-executing." on is tution, the laws United States added)). phasis thereof; pursuance which shall be made made, made, and all treaties or which shall be following regarding 12. The Court stated the States, authority under the of the United shall the distinction between international obli- land; supreme be the law of the gations recognized obligations and domestic Judges every thereby.” State shall be bound by courts: VI, 2,§ (emphasis U.S. Const. art. ed). cl. 2 add treaty primarily compact A is a between interpretation prevailed. But this has not depends independent nations. It for the on enforcement its the inter- Whitney, 11. See 124 U.S. at governments est and the honor of the constitution, ("By placed a on the is fail, parties which are to it. these If footing, obligation, same and made of like subject infraction becomes the of interna- legislation. with an act of Both are declared reclamations, negotiations tional so supreme that instrument be the law of land, injured party far as the chooses to seek superior efficacy given and no is redress, may end which in the be en- either over the When other. the two relate to subject, always forced actual war. It is obvious that same courts will en- give judicial all deavor to construe them so as to this the courts have noth- effect both, violating give if that can be done without do and can no redress. had self-exe- enjoyed have it been Medellin, would asserted petitioner view, treaty. is a cuting. In this ruling Justice was International Court because, view, non-self-executing trea- this Under States courts binding in United Clause, step additional to become ty requires an Supremacy “by virtue binding, step passed rul- compliance with but once requiring [the treaties —once is the Su- already implemented law the land.” ing] are —it quota- equivalent and internal of a self-exe- premacy Clause S.Ct. omitted). therefore, court, rejected The cuting treaty. holds marks tion than it found the treaties idea rather argument this because conflict in non-self-executing. Congress,” Id. at 1358-61. “Act of causes the to be case, whether “the repeatedly asking this Therefore, separate come in two treaties law. supersedes Convention” Louisiana treaties, types: and distinct undoubtedly preempt can which wrong. points But that this, non-self-executing in a case like holding no case treaties, The court brushes which cannot. supersede can state law. See David distinction, hold declining to away key Sloss, The International Domestication of but self-executing, is that the Convention Dec- Rights: Non-Self-Executing Human Convention, stating that “the nevertheless Treaties, Rights 24 larations and Human treaty, than the implemented rather (1999) (“[T]o 129, Int’l L. 149 the Yale J. law.” supersedes Convention the no knowledge, of author’s U.S. best added); Op. at 725 see also Op. treaty to provision court has ever held a be (“[T]he Act at 717-18 non-self-executing applied and then di- (em- not to the Convention.” apply does case.”). Furthermore, rectly to decide a (“[I]t added)); treaty at 724 a phasis Op. Foster, no that Medel- argument there is (the Convention), not an act of lin, supports similar case such a (the Act), that to we construe implementing legisla- Simply put, result. law.”). supersede Louisiana fully implements treaty— a tion—even if it a non- a dispute promote non-self-executing The court that does does itself, treaty to status it self-executing treaty provision, Supremacy of Clause courts, had legal enjoyed no in and would have it been self-exe- has force domestic force, directly applicable As cuting. no while a self- a matter preemptive therefore concludes, law, non-self-executing treaty executing provision does. It domestic however, a upon implementation by provision as inert as a of model that remains code, statute, treaty pro- incorporated a a source of content non-self-executing law, imple- a source of Supremacy moted to status it reference.13 As Clause thereof, Cases), Edye (Head-Money pursuance made in and all treaties v. Robertson 112 580, 598, 247, 28 L.Ed. 798 U.S. made or which shall be made under author- contrast, noted, (1884). The Court then States, ity be the of the United shall su- provisions are preme land." law of the subject Supremacy proper Clause: 598-99, added). 247 (emphasis Id. at may provisions also But contain capable ... which are of enforcement as course, law, 13. Of as a matter international private parties between in the courts of the its commit- the United States bound country Unit- .... The constitution of the ments, including arising those from non-self- places ed States as these in See, Brownlie, executing e.g., Ian treaties. congress category the same as other laws of Principles Law 620 Public International Supremacy [in its declaration pacta (describing principle sunt Clause] that "this constitution and laws

741 omega alpha and Clause. See id. at meriting legislation is the S.Ct. accordingly It that the held district rule of may of what constitute a decision correctly dismissed com- had Missouri’s reason, courts. For this there can U.S. plaint ground “on the that the Act of Con- no this case without con- preemption gress is constitutional.” Id. at an Act of struing pow- S.Ct. The source of preemptive treaty. rather than implementing legisla- er at issue was the tion, variously which Court referred to B. “act,” id., “statute,” as an id. at moorings to of Supreme Untethered and an “act of Congress,” S.Ct. id. scholarly precedent, Court consensus 40 S.Ct. 382. There conten- is no circuits, area, or case law from other holding tion or Missouri Holland un- the court off on course sets into apply a court could a non-self-executing charted waters. Mis- Supremacy Clause implemented not, treaty, supersede Holland, souri v. S.Ct. state law. (1920), is the Su- only L.Ed. Not support does Holland not preme holding upon Court which the court conclusion implementation by statute purports ground its conclusion that imbues non-self-executing with capable Convention is abilities; preemptive leading preemption, and courts should look on self-executing/non-self- cases rather than the implement- executing provide distinction support, no ing legislation, see if it is “Act Indeed, either. attempt the court does not Congress.” holding But Holland's on the Foster, argue Whitney, the Head- power’s interplay Congress’s Cases, Medellin, Money any case powers Necessary the Proper under and them, interpreting supports of the Clause the Supremacy is irrelevant to premise that the Con- question Clause court. before this capable is “superceding” vention of state case What is relevant to this is not the Supremacy law under the Clause. Consid- Holland, holding of but the in ering question manner the unusual nature of the (and which it it frames the conflict between before overrules the district court split), a I implemented treaty expect law creates circuit would preroga- and state the en banc to devote some attention tives in a embodied Missouri statute. It is to the relevant law in area. It case clear from the first sentence of Holland fails do so. to implementing the act—not trea- the ty of considered the source the conflict. —is ignores The court also the of consensus (“This 430-31, See 252 U.S. 40 S.Ct. 382 legal regarding scholars the Supremacy is a bill in equity brought the State of implemented Clause status of In treaties. Missouri ... prevent the United States holding direct contradiction to the today, the attempting Migratory enforce overwhelmingly commentators con- added)). Treaty Bird Act.” (and longstand- that under clude current treaty law, reasoned was consti- it ing) implementing is stat- treaty tutional power, ute, and there- treaty, the non-self-executing not fore the act it was implementing constitu- can be enforced as to courts so Necessary See, tional capable preemption.14 under the of Proper e.g., Re- requiring party treaty seiranda nations to a 14. This includes commentators are criti- who faith). obligations good perform present their cal of the state of the law and those (Third) ties, however, require legislation imple Relations Foreign statement 111(3) in the For cmt. h ment them United States. States Law the United (“[Strict- (1986) agreements, implementing such is the Restatement] [hereinafter itself, legislation, agreement not the legislation, rath- ly, implementing it is the itself, rule becomes the of decision U.S. given that is agreement er than courts.”); Patchell, States.”); Kathleen 10A Hawk- effect law the United as (“[I]f private land UCC Series 8:22 Henkin, Foreign Louis Affairs * is a non- (2d implemented convention as ed. 200 n. United States Constitution the convention itself 1996) treaty not self- (“Strictly, if a is part law. will become of U.S. domestic treaty the im- it is not the but executing Instead, legislation, if any, passed it is the effectively legislation that plementing implement convention becomes ”); Halberstam, ‘law of the land.’ Malvina law.”); domestic part Vincent G. II: Alvarez-Machain Note, Lvy, Enforcing International Court’s Reliance on Non-Self-Execut- Roper Norms in the United States in the Senate Resolution Declaration after Simmons; The Case Juvenile Consent the Inter- Giving Advice and Offenders Parole, Sentenced to Without 45 Co national Covenant on Civil and Political Life (2006) lum. J. L. n. Transnat’l Security Pol’y Nat’l L. Rights, 1 J. & (“Indeed, preemptive power of treaties (2005) (“[I]t it implement- is the statute ‘self-executing’ is limited to treaties the supreme law ing the that is the statutory provisions implementing those land, provid- rather than the treaty, as self-executing, treaties that are not rather Supremacy ed Article [the VI themselves, than the treaties preempt U.S. Clause].”); Vázquez, Carlos Manuel Trea- law.”); Henkin, Foreign Supremacy ties as Law the Land: The cf. Affairs and the States Constitution at 209 Clause and Judicial Enforcement (“Since non-self-exeeuting treaty n.* Treaties, 122 Harv. L.Rev. accord, not law for the courts of own (“When non-self-executing, any inconsistency between statute, judges apply is, regards Act of itself.”); Simon, Jean-Marie law, inconsistency domestic between The Tort Act: Alien Claims Justice statutes.”). the two Trials?, 11 Show B.U. Int’l 42 n. L.J. (1993) (“As matter, 247 a technical U.S. give In its quest to the Convention new- implementing legislation not does make abilities, preemptive found the court simi treaty directly applicable the in U.S. larly case cir disregards other courts, only implementing it makes the cuits that have concluded non-self- legislation part courts, of law in U.S. U.S. executing treaties lack force in preemptive may although implementing the language Indeed, the U.S. courts. Second Circuit Thom- language.”); [be] identical respect has so concluded with to the exact as & D. Buergenthal Murphy, Sean Public in non-self-executing same this case. Co., a Stephens International Law in Nutshell 198-99 Am. v. Int’l Ins. 66 F.3d 2007) (2d Cir.1995).15 (“Non-self-executing trea- Its panel ed. unanimous did not, (2d represented Corp., who are are both of whom in & Chem. 69 F.3d 1226 Distillers Cir.1995) given. the citations National [hereinafter Distillers]. so, easily This is as the are not cases distin- notes, Stephens guished. court "is The contends at theAs National Distill- case, least in tension” with the Circuit’s ers the at issue Second held that statute in the (FSIA), Stephens Sovereign subsequent in the decision v. National Federal Immunities Act question suggestion The was not the issue difficult. There no that the find Conven- supersede was “under the tion itself could the presented whether Su statute. premacy super Clause the Convention notion that non-self-executing trea- Kentucky Liquidation Act.” sedes the inapplicable ties are in domestic courts to note that at 45. The court needed support finds in other circuits as In well. self-executing” “the Convention is v. Hopson Kreps, the Ninth Circuit con- Foster of in consider the basic doctrine in no uncertain cluded terms that “[t]he “[t]he order to conclude any legal issue in concerning action a stat- Id. simply inapplicable.” itself implementing ute a is the intended v. Suter Munich meaning of the terms of the statute.” Third in Circuit’s decision Co., (3d Reinsurance Cir. (9th Cir.1980). F.2d Rather 2000), further confirms that the Conven being than of jurisprudential star of simply inapplicable tion is as source show, contends, as majority non- Ste in the As in preemptive law courts. self-executing treaty a back takes seat to phens, the court in Suter faced essentially may statute: be “rele- Although the same issue we face. it de vant insofar as it may [in Courts] aid scribed the reinsurance contracts at issue proper statute,” of construction “includ[ing] arbitration gov clauses independent but it “has no significance in Convention,” erned the ... it framed resolving such issues.”17 See id. Like- of preemption wise, issue terms whether when the D.C. Circuit addressed the “the there was conflict between Conven interpretation of trea- an allegedly contrary ty, Judge tion Act” and New Kavanaugh noted concurrence id. statute. See Jersey “[s]trictly, at 160-62.16 that it is implementing leg- already legal governing codified international law that was 'sel standards claims part immunity every against federal law the common at time Con- civil action a for- Verlinden, gress passed McCarran-Ferguson eign (quoting Act. 461 U.S. (“But contrast, 1962)). at By See id. it was not an ‘act of contain, Congress’ superseded [state] insurance Convention Act does not nor has law, found, accepted law. International federal a similar statement of law, already exclusivity. common had done that before being.”); the FSIA came into see also Verlin- Nig., den B.V. C. Bank 16. The court held there no be- was conflict (1983) ("For fact, Jersey New cause statute did codifies, part, (or the most as a preclude [FSIA] matter arbitration removal to federal law, theory court) sovereign pursuant federal restrictive to the Convention Act. See Suter, immunity.”). (“[W]e inap- was poten- F.3d at 161 find no plicable require because it would not Liquidation reverse- tial friction between the preemption having controversy of the identical federal this common decided an arbitra- tor.”). law that have in force rules would been had the FSIA never been enacted. See National Distillers, unique 69 F.3d at That cir- proposition 17. Even the a non-self-exe present cumstance is not in this case. Fur- cuting treaty interpre be could relevant as an thermore, specifies provides the it imple FSIA ambiguities tive aid to resolve in an See, suing foreign menting e.g., the exclusive means a sover- act is contested. Fund for Animals, 872, eign 28 Kempthorne, in American courts. See U.S.C. Inc. 472 v. F.3d J., (D.C.Cir.2006) (foreign §§ (Kavanaugh, 1604-1607 states are immune 880 concur jurisdiction ring) (finding justification from the of American courts ex- "little for a to 1605-1607); provided §§ cept put as in see Re- a thumb on the scale favor of a non- Altmann, public interpreting Austria v. when a stat legal S.Ct. ute” because “have 124 such treaties no (FSIA courts.”). "comprehensive containing statute a is status American itself, the non-self-executing treaty, implement-

islation, agreement than the rather in the effect as law United given force under the preemptive act has a non-self- is true even when States. That rendering clause irrelevant Supremacy by, or is ‘enacted’ executing agreement as well. whether the does Where in, legislation.” incorporated material, just it is not distinction Animals, Kempthorne, Inc. v. Fund for speak party’s less to a cumbersome (D.C.Cir.2006) (Kava 872, 879 472 F.3d particular a section of the rights under J., (quoting Restate concurring) naugh, (which the specifics) contains Convention h). §ment 111 cmt. (which than Convention cases our the court cites Although Convention).20 This is merely enacts apply Convention purporting circuit practice to our occasional comparable Act,18 these rather than the Convention Code applying the Uniform Commercial They proposition. for no such cases stand law, we as if it were enforceable when than instances of nothing more amount to en- to state statutes really mean refer language used contexts imprecise See, e.g., uniform acting provisions. no was of conse- where the distinction Specialty Fin. v. Oil Corp. First United case, the typical In the formal quence.19 (5th Cir.1993) Co., 946 n. 5 F.3d between the Convention and distinction (“[Bjecause adopted Louisiana has Act will matter. the Convention herein, all sec- implemented, relevant courts confront UCC When Fabricators, Specialty voidance was v. Louisiana's arbitration clause 18. See Lim Offshore Inc., (5th Cir.2005) (“It inapplicable. 120 at 586. F.3d F.3d 902-03 that, goes saying upon without the United Congress adopting acknowledges signing prac- States Restatement referring enabling legislation, non-self-executing becomes tice of Int'l, sake, land.”); applicable supreme law law of the McDermott for convenience’s fact, London, actually it is not. In the Restate- Lloyds when Inc. v. Underwriters 111(3) (5th Cir.1997) ment does so itself. Section states (refusing de F.3d non-self-executing regarding trea- basic rule preempts cide La. “whether Convention Sedco, added)); ties: (emphasis R.S. 22:629” Inc. Co., Mexican Nat’l Oil Petroleos Mexicanos in the States are bound to Courts Cir.1985) (holding give law inter- effect international and to qualifies, agreement "the an arbitration if States, agreements national of the United requires courts Convention district to order any "non-self-executing” agree- except that added)). arbitration” given effect as in the ment will law necessary implementation. absence Lim, example, employment In con- glance, appears suggest At that a first tracts, agreements, not insurance were at is- non-self-executing given agreement will "be sue; McCarran-Ferguson Act there- was upon implementation. law” Com- effect as triggered state law was fore not h, however, clear not the ment makes this is preempted federal law—as formal mat- case: ter, by Act rather (3), than strictly, im- Subsection it is the Under itself, no Convention but it made difference legislation, plementing rather than itself, at 900-01. for- that case. F.3d [non-self-executing] agreement similarly mal was status given effect as in the United States. Sedeo, and the McCarran-Fer- irrelevant true even That is when guson triggered. by, incorporated Act not 767 F.2d at 1144- agreement "enacted” in, Although legislation. McDermott involved the same implementing here, cites, it pres- insurance at issue cases the court the Louisiana statute Unlike the that requires did us to be not address ent case is the rare one that Convention/Convention treaty policy distinguishing Act it held that the between the distinction because “strict” Louisiana, act. was that and the not delivered thus cited to tions -will hereafter be the UCC er than the legislation to specific Louisiana stat- determine the reverse-preemptive rather than effects ute.”). case, however, McCarran-Ferguson In the instant Act. merely tangential is not but

distinction Act dispositive: A. Congress, to to applies only Acts of not Two sources of law are here in conflict. treaties.21 The first source of law is Louisiana Re- 22:629, § vised Statute which bars use II. of arbitration clauses in insurance dis- Perhaps today really the court does putes.23 not The Louisiana statute would nor- path through mean to cut a Suprema- mally subject new be the ordinary rules of cy territory Clause to endow non-self-exe- that it preemption, except falls pur- within cuting treaties with heretofore undiscov- view of the McCarran-Ferguson powers. §§ ered But that preemptive 1011-15, is what U.S.C. which bars implied fed- justify framing must do order to eral statutory preemption of state insur- approach inquiry as into permits whether ance law and state insurance laws Congress.”22 Convention itself is an “Act of to reverse-preempt inconsistent federal legal The alternative would be sort of Specifically, Congress statutes. declared which alchemy, in the court bestows on the in McCarran-Ferguson Act that it in- Act properties the beneficial tended create a default rule preserving (such power state-by-state statute as the an a carry for regulating scheme in- treaty inert into execution and preempt providing surance and that congressional (such law), state but its drawbacks on regulation silence insurance must not by live like interpreted need to rules the McCar- preempt state law. § ran-Ferguson Congress pre- that (“Congress hereby has declares that statutes). plainly scribed for This is regulation continued by taxation wrong. non-self-executing Because a trea- the several States of the business insur- ty law, cannot preempt public interest, the court ance is and that analyze cannot the ineffectual rath- silence on the part shall Thus, language surprise The court cites from the Conven- it is no find inferring precedents indicating “proceeding falling “imple- tion Act from our itself that non-self-executing mented of a under the convention shall be deemed to arise given by can themselves be effect the 57, under the laws and treaties of the United law,” Op. courts as federal at 727 & States,” n. 203) Op. at (quoting 9 U.S.C. concluding that “it is reference to the added), implying judi- Convention that we have a command —a thought apply the Convention Act could di- cially remedy 'super- enforceable we —that rectly. argument This does not undermine law," Op. recognizing sede' Louisiana non-self-executing consensus treaties “[i]mplementing legislation that does not most, preemptive lack force in the courts. At conflict with or override a does not conceivably language could be relevant to replace displace treaty,” Op. at 722- determining Congress thought whether deciding preemp- what it means for (as self-executing. assuming was But implement- tive law to have “as its source does) self-executing, the court that it non-self-executing treaty,” ed Op. at 727. alter, Congress simply power lacks the statute, constitutional decisions such as Fos- Corp., Mgmt. 23. Doucet v. Dental Health Plans ter, Cases, Whitney, Head-Money (La.1982) (holding 412 So.2d which indicate that treaties 22:629 bars arbitration clauses in the insur- context). directly are not enforceable the courts. ance law 746 matter, provision initial of Louisi- any barrier to an impose to

not be construed by the protected taxation of such business ana law is McCarran- regulation or the States.”). of provision Ferguson the Act. by several McCarran-Ferguson Act issue the question errs on whether The court the provides: this case in this con- the source of law case second be construed to Congress shall No Act of does, Congress.” “Act of If it stitutes an invalidate, supersede any law impair, or not Congress then like all Acts of do for the of by any purpose State enacted of in- “specifically to the business relate[ ] ... of insurance the business regulating surance,” subject reverse-preemp- to is Act relates specifically unless McCarran-Fergu- by tion .... the of insurance business son; Congress if it is not an Act of but added). 1012(b) With re- (emphasis § law, other of rather some source federal Congress,” “Acts of McCar- spect self-executing treaty, like then McCar- a is, in Act what “impos[es] ran-Ferguson ran-Ferguson apply, not does effect, rule that state a clear-statement by preempted Louisiana law would be regulat- of purpose ‘for laws enacted the Suprem- of straightforward application yield of do not ing the business insurance’ acy Clause. a federal statutes unless fed- conflicting Convention, non-self-exeeuting a as requires other- specifically statute eral rule of provide cannot itself Dep’t Treasury v. wise.”24 U.S. of here, Fabe, 2202, so Act must S.Ct. decision U.S. 113 508 (1993). Thus, at of law.25 This was least as be the second source L.Ed.2d States”; liability prescribed statutory of nal in the United statutes are has rules See, (Third) Foreign required); in other 1 Restatement of construction statutes well. 1547(a) (War § e.g., § Powers Relations Law of the United States 50 U.S.C. Resolu- ("It tion) legis- [hereinafter (imposing Restatement] clear rule for cmt. i statement commonly authorizing has that an interna- lation of United been assumed introduction hostilities). treaty] agreement [e.g., a itself Fur- tional cannot States Armed Forces into war.”); thermore, a treaty/statute bring the United States into state of the formal distinction Carter, today a v. F.2d elides essential in Edwards number ("Thus, See, (D.C.Cir.1978) e.g., [by virtue U.S. of of other contexts. U.S.C. Const, I, (Non-Detention Act) expenditure § 4001(a) (requiring § art. cl. 7] any by by cannot be accom- "imprison[ment] funds United States detention]” treaty; plished by self-executing implement- an United States of American citizen be ef- Congress"; ing legislation appropriating such funds is pursuant fected "Act an added)); indispensable. Similarly, the (emphasis constitutional is insufficient ("The (Alien Statute) raising 'all § dis- mandate that Bills for Revenue U.S.C. Tort original jurisdiction originate Representa- House of trict shall have shall courts Const, I, § only, appears, cl. 1] action alien for tives' art. [U.S. civil an tort used, language the law of restrictive committed violation of nations reason States,” prohibit treaty power impose or a but the use of the United not added); taxes.”). literally treaty power "The does Congress) not War Pow- Resolution, 1547(a)(2) legislatively, (stating to act for it is authorize ers 50 U.S.C. President, power authorizing Article II specific authorization for introduc- " Congress, 'to not make Treaties.' tion States Forces into hos- of United Armed Lara, States may tilities inferred (2004) (quoting alone, implementing leg- requires instead but II, 2, Const., 2). art. cl. islation); Bradley A. & Jack Curtis L. Gold- smith, (2d Foreign Law 396 ed. Relations 2006) ("It pos- we generally accepted that 25. Once remove the Convention as treaties preemption, then may source of this case create domestic crimi- sible themselves 22:629, § by reached the Second ute the court argues conclusion Cir- is the Stephens Convention, Act, cuit in Am. Stephens. v. Int’l rather than the Cir.1995). (2d Co., F.3d 41 In Ins. “construed” under the McCarran-Fergu- state determining whether Louisiana law Act. supposedly son This insulates the preempted preemptive was the McCarran-Fer- provisions from McCarran- court guson imple- Ferguson, statutes, looked to which reaches statute, treaty. menting Unlike treaties. today, Stephens

the court found This argument play on essentially ... simply Convention itself “[t]he words, which wrenches the word “con- inapplicable in this the imple- instance” as phrase strue” the verb which it menting was legislation the federal law of appears in the statute: Likewise, consequence. this court No Act of shall be construed statute, to should have looked rather invalidate, impair, to any or supersede than to if determine Louisiana by any law enacted State for the pur- preempted by law had been “Act of pose of regulating the business insur- required Congress” as McCarran-Fer- ... ance unless such Act specifically re- guson. lates to the business of insurance.

B. 1012(b). 15 U.S.C. phrase relevant justifies invalidate, The court to look to decision impair, ] or su- “construe! Thus, the Convention rather than persede.” the Convention “construe” does not ground merely Act on the that the Act Convention mean to refer to the text for con- implements largely by ref- plain meaning tent. The of “construe ... erence, any opposed setting supersede out Con- law enacted force, vention within text of give preemptive the State” is to apply Op. proposes Act.26 The court question the source of law in rather than that “the Act ... Accordingly, merely Convention does not law. “oper- state operate without reference to the contents ate reference to the ] contents” of the with! Convention.” Id. merely copy Because court Convention—to handy have a applying the Convention Act must also and refer to it—is not to “construe” the copy consult reference of the Convention Convention in the McCarran-Ferguson to ascertain conflict with Revised Stat- sense.27 no different from Munich American Reinsur States courts in accordance with this (5th Crawford, chapter.’’). ance Co. v. 141 F.3d 585 Cir. Munich, 1998). In the court looked to the phrase 27. Our cases further confirm that the Federal Arbitration Act as the source of feder invalidate, impair, super "construed to al law or that conflicted with an Oklahoma law applying sede” governing entails federal delinquency proceed invali insurance date, impair, supersede ings, or law. See and found the Oklahoma Law re Co., Miller v. Nat'l Fid. Ins. F.2d verse-preempted the Federal Arbitration Act Life (5th Cir.1979) (“The 186-87 under the Act. McCarran-Fer Id. at guson precludes application Act Act federal If Convention is all that is left to if, result, regulating laws as a laws preempt, just of a state reverse-preempted it is as the invalidated, impaired, be insurance would previous FAA was in the case. superseded.” (emphasis added)); Am. Heri Orr, Congress incorporated tage the substance of the Ins. Co. Life Cir.2002) (“Appellants in the identify any fail to See, invalidated, largely by e.g., impaired, U.S.C. reference. statute that would (“The FAA”) superseded application ... shall be enforced in See, Manuel truly e.g., not Carlos apply. are courts that we

The contention Act because Powers Vázquez, Separation The as a “construing” the Convention of Nationalism, of the language to resort the 83 Notre Dame Safeguard must we of unsupport (2008) (“When logically do so is 1601, to a Convention 1617 court L.Rev. The law. foreign the case able a in- treaty effect to because gives have question to address this circuits other statute, it so a apply- structed to do a non- between the interaction discussed statute, Wu, Tim treaty.”); the ing the not treaty implementing and its Domains, 93 Va. L.Rev. 588 Treaties’ depending varying degrees, legislation (“When (2007) implements a distinction relevance of the on the part statute, through statutory the treaty re- sug have None case’s outcome. to the treaty completely replaces the as a gime failure to the Convention Act’s gested is, That basis for direct enforcement. treaty of the language the cut-and-paste original text of judges do return the prevents somehow into the statute they the as a can enforce direct- law being Congress,” “Act of statute ly.”). Mis being “construed.” See capable not see In the end the court does Holland, 416, 424, 430, v. U.S. souri “operate with[ ] reference to contents” 431, 432, 64 L.Ed. 641 40 S.Ct. theory way through. all the (1920) law at (discussing the source of merely does not look to the Convention an “act of Congress,” an “Act issue as “statute,” “act,” gaps language to fill in the order Congress,” an Rather, opinion Act. addressing solely question whether Convention law, Congress preempted clear that court means to apply Act of state makes did); Stephens, if it directly, itself the Convention had whether (holding F.3d at 45 reasons preemptive given “[t]he force. For the in above, in this simply inapplicable ... possible itself in Part I it is not “con- stance”); v. Reinsurance Suter Munich supersede” any- [the Convention] strue Cir.2000) (2d Co., 223 F.3d 160-62 incapable thing, because the Convention is the Convention rather than (analyzing in a rule of decision U.S. providing itself, of law as the source governs court. Louisiana law unless some issue); Hopson Kreps, at source of federal can applicable Cir.1980) (although it “is relevant cannot do preempt. so. may proper con insofar as it aid Therefore, remaining the only candidate is statute,” struction of the a non-self-execut the Convention Act. “treaty significance has no independent issues.”). resolving III. regard- agree also Commentators Only single statutory interpretation sepa- one to a

less of whether must refer text, question remains: is the Convention Act or rate whether instead Congress” meaning “Act within the in the statute text is set out itself, statute, Act? We can it is the not the (“This Miller, 187) (citing (emphasis F.2d (“We added); Crawford, question: Would case ... turns on the RICO’s 141 F.3d at 594 must application employee consider beneficiaries’ [federal statute] now whether invalidate, ‘invalidate, impair’ impair, super- operates supersede, at issue claims added)); governing insurance?” (emphasis accord sede Nevada's laws [the statute].” added)). Forsyth,

Humana Inc. v. 430, 431, 432, 435, by setting forth question answer this 64 L.Ed. (1920). Therefore, itself: opening words of the Act court’s exercise statutory interpretation should have ended with plain language of the stat- STATUTES UNITED STATES ute, foray and its the realm policy into AT LARGE improper.

considerations is SESSION 91ST CONGRESS —2ND Because the court convinced that the straightforward interpretation the January Convening words “Act of Congress,” produce would An Act result, an “untenable” the court’s analysis veers off course into a fruitless search for implement on the the Convention To Congress’s result, true intent. As a the Recognition Enforcement of and up court ends the supplanting plain mean- Foreign Arbitral Awards. ing of unambiguous term “Act of Con- (1970) ( 91-368, Pub.L. No. Stat. 692 gress” with a interpretation strained aimed added). emphasis at protecting important federal policies. Congress. legisla This is an Act of First, speculation the court resorts plainly tion is as an Act of labeled Con about what Congress must have in had gress, ambiguity point and no on this is mind when it included words “Act of parties. cited the court or “The Congress” in reverse-preemption pro- preeminent statutory interpreta canon of vision of the McCarran-Ferguson Act. requires ‘presume tion that us to [the] The court ap- concludes “there is no legislature what it says a statute means parent why Congress reason ... would it says means a statute what have distinguish chosen to the McCar- States, there.’” v. BedRoc Ltd. ran-Ferguson Act treaties that between 176, 183, 541 U.S. 124 S.Ct. 158 are self-executing and those that are not (2004) (quoting L.Ed.2d 338 Conn. Nat’l implement- but been have Germain, 249, 253-54, Bank v. U.S. Op. ed.” at 723. It therefore it considers (1992)). “unlikely” that in passing McCarran-Fer- inquiry with the begins statutory guson, “[O]ur Congress any “intended future text, and ends well there as text is treaty implemented an Act of Congress if cases) unambiguous.” (citing (empha abrogated to be to the extent added). addition, sis In discussed ... a regu- conflicted with state law I, length in Part ... recog lating Congress’s if imple- insurance implementing legislation menting legislation nizes the not expressly did save reverse-preemption.” as Act of Con Op. Holland, gress. Missouri v. at 729.28 Furthermore, suggestion theory vague pas- hybri-

28. There is a these based on sages panel’s that the holds to the court still treaty-statute dized track loses of the basic conception preemption It character of this case. legislation conglomerated. as somehow Be- case, requires preemption a source of law, cause exists in our no chimera capable displacing federal law state law. If Congress reasonable to did not assume so, the Convention do and the cannot McCar- passed have it in mind when it McCarran- ran-Ferguson prevents However, Ferguson Act. this is irrelevant to so, doing hybrid Act from then no of the two statutory interpretation because we are to can do so. said, Congress look to what not to what Con- gress may may have had in mind. law, a dictate of common plain a maxim of contradicts interpretation This sense.”). Act. lively There is a debate language a dear- Congress prescribed In the academy and the over the judiciary legal affect- statutes rule federal statement interpretive properly methods universe of insurance: uncertain ing the business text of to a court where the available to be construed are unclear, that debate is irrele- statute is but general- insurance law. See preempt How clearer than vant here. much “No Fabe, Treasury Dep’t. ly U.S. Congress” Act of can be? 124 L.Ed.2d reading (1993). fact, explicitly In contends regulation “the continued include Congress” determined words “Act of of the by the several States and taxation “untenable,” Act is states inter- public is in the of insurance business that it does “not consider it reasonable” to Congress possible It is that § 1011. est.” reading embrace such of statute. to control policy judgment this intended citation Op. at 723-24. Yet there is no Congress gen- of of interpretation Acts any rule of that would make construction they implemented or not erally, whether interpre- judgments these relevant to the possible also that It is treaties. task, policy-based interpretive as tech- tive of whether Acts Con- considered never analysis place no in the court’s niques have ought to be implementing treaties gress of the statute language where is rule of subject clear-statement statutory text is unam- clear.29 Where matter McCarran-Ferguson. It does not biguous, “there is neither need nor war- either, which, of is cor- if these narratives Am. Trucking rant to look elsewhere.” place speculation has no when rect. Such Ass’ns, ICC, 452, Inc. v. F.2d 459 it say what means interpret we statute Oct.1981) added). A (emphasis Cir. Unit BedRoc, it says. what and mean “A court should from the official depart 1587; 183, v. see also Green at text of the statute and seek extrinsic aids 1, 89-90, Biddle, 21 U.S. 8 Wheat. meaning is only language to its (1823) (“[WJhere the words of a L.Ed. 547 i/the if apparent clarity language clear or law, contract, plain have a absurdity applied.” construction, leads to of result when meaning, all hostil- obvious omitted). citation ity such excluded. This is added and meaning, starting parties acknowledges “the Neither the nor the court contends 29. The court language avoidance, interpreting point for a statute is the the canon of constitutional see Op. itself." at 718 & n. 9 TVA, of the statute 288, 345-46, v. Ashwander 297 U.S. Safety (quoting Consumer Prod. Comm'n (1936) (Brandeis, L, 80 L.Ed. 688 S.Ct. Inc., 102, 108, Sylvania, 447 U.S. GTE concurring), avoiding or the absurd canon (1980)). It cites S.Ct. results, Trucking see United v. Am. States interpretive support of its no further reasoning, rules Ass’ns, 543-44, 310 U.S. citing other United States v. than (1940), applies 84 L.Ed. 1345 here. The un- Percheman, 7 Pet. 8 L.Ed. ambiguous Congress’s language nature of proposition un- "[t]he for pre- McCarran-Ferguson Act likewise treaty] derstanding must of the article [of Charming Betsy application can- cludes of the into our of the acts enter construction on, interpretations which favors unclear [CJongress subject.” on the Percheman is help meet States statutes interpreting relevant to most obligations that do not. over those bearing interpretation Act. It has no on the (2 appears Betsy, phrase Congress” Murray Charming "Act of it 6. U.S. v. Schooner McCarran-Ferguson which Cranch) (1804). in the 2 L.Ed. 208 treaty. act for a directives, In light of such clear acknowledges court’s the state interest that was approach is aberrant. significant enough give rise to the rare reverse-preempting provision

In improper addition to the court’s in- what first quiry into intended when it place.30 the unambiguous wrote words “Act of Con-

gress,” expounds for some length-indeed section-upon entire IV. policies the federal protected by its inter- In I summary, (“Our would follow the holding pretation. atOp. See 730-31 conclu- (the of the Second Circuit sion referral to arbitration circuit to proper in this case is have congres- squarely bolstered decided question) this sionally sanctioned policy national favoring Stephens. court, In a domestic a treaty arbitration international commercial that Congress itself, enacts is not law agreements.”). But in light clearly of a in fact it is the statute that counts and the statute, worded support factor cannot statute amounts ato standard congression- weight that the analysis court’s forces al act. Indeed, to bear. if policy even I would that: hold considerations were relevant to the inter- pretation statute, of an 1. unambiguous The non-self-executing and Convention31 not, they are the analysis court’s barely provide cannot itself a rule of decision Congress, enacting 247, McCarran-Fergu- (5th Cir.1998) (en banc) 145 F.3d 255-61 30. son, explicitly ("It regula- stated that "continued repeating indeed, bears cannot be over — tion and taxation the several States of emphasized the we do not address issues —that public business of insurance is in us.”); the inter- presented not Bogalusa to Pace City v. 15 U.S.C. McCarran-Fergu- Bd., est." 1011. 272, (5th Sch. 403 F.3d 280 n. 32 Cir. response Supreme son awas to a 2005) (en banc) ("In Court deci- brief, its en banc Louisi interpreting sion apply the Sherman Act to to ana mentioned a challenge relatedness insurance, "thereby business of 2000d-7, interfer- argument but that pre was not ing regulation with state of insurance in ... panel, sented to the and Louisiana's en banc unanticipated ways.” Barnett Bank Marion develop beyond brief fails to a bare of asser Co., Nelson, 25, 40, N.A. v. 517 U.S. Thus, S.Ct. tion. Louisiana has waived its related 1103, (1996). Congress 134 L.Ed.2d 237 challenge.”); City Lago ness ta, Atwater v. Vis of quickly" therefore "moved to enact the 242, stat- (5th 1999) (en 195 F.3d n. Cir. supremacy ute "to restore the the States in banc), 318, 1536, aff'd, 532 U.S. 121 S.Ct. regulation" by protect- realm of insurance (2001); Johnson, L.Ed.2d 549 United States v. ing regulation state from 1317, inadvertent Con- (5th Cir.1983) (en 718 F.2d 1325 n. 23 gressional Dep’t interference. U.S. Trea- banc). properly The Underwriters failed to Fabe, sury v. 508 U.S. preserve argument a self-execution at both 2202, (1993) (emphasis add- panel stages. and en banc ed). interest, Recognizing strong state panel stage, At the the Underwriters failed Supreme Court has observed that “[o]bvi- press holding, for such a mentioning the ously, Congress’s purpose enacting [in argument only in a footnote of their merits broadly give support statute] was to the 17; Appellant’s brief. Brief 33 n. see Davis v. existing systems regulat- future state for (5th Maggio, Cir.1983) 706 F.2d taxing the business of insurance.” ("Claims pressed appeal on are deemed Benjamin, Prudential Ins. Co. v. abandoned.”); Miller v. Tex. Tech Univ. (1946). 90 L.Ed. 1342 Cir., Health Sci. 421 F.3d 348-49 Cir.2005) (en banc) We cannot hold that is self- (taking an en banc brief's 31. executing party forfeiture); because no asks us to do that. "bare assertion” as F.D.I.C. v. Mi- holdings jalis, (5th Cir.1994) Our en banc we establish that reach 15 F.3d 1326-27 properly brought panel the issues (“intimat[ing]” "pressing]”); is not see also Brace, Co., and the court en banc. United Blumberg Mgmt. States v. HCA Accordingly, court correct- courts; only implementing- district

for U.S. preempting ly prevents state that no law capable ruled federal legislation § 22:629 law. Louisiana Revised Statute applying Act this case. Convention Congress is an Act “specifically relate[] does % # insurance”; business today has the oppor- The court declined Act provides tunity align itself the Second Cir- Congress” preempts Act of that “No jurispru- cuit Court’s Act of Congress law unless area. muddied the dence in this It has to the business of relates “specifically statutory interpretation ju- of our waters insurance”; risprudence, by an ad reasoning on hoc en- “a[] Louisiana statute law 4. The own conception basis from its what purpose for the a[] acted State “reasonable,” Jlikely” “[ of insurance” regulating business intended, looking have rather than to what Act would “invali- date, Simultaneously, said. with little impair, supersede”; discussion, applied doctrinal it has non- is therefore re- 5. The Convention domestic, preemp- the Louisiana stat- verse-preempted by unprecedented tive in an manner. As by operation of the McCarran-Fer- ute Act; result, superiors “at least until our guson (5th Cir.1988) (“[W]e present repeatedly have Underwriters as non-self- alleged executing: Answering we will errors "LSAT not consider Avoids held Question brief].”). Indeed, Why reply [in the Posed Should raised Panel— notes, Non-Self-Executing today Implemented Treaty the Underwriters’ briefs the court argument Any Differently with- Be Treated Than a Self-Exe- addressed self-execution course, Treaty?” Appellant’s "any depth.” Op. cuting Reply 721. And En Banc out at panel opinion the now-vacated ad- Brief 6. whether argument urges consequence no concurrence us to look at dressed the is of The LSAT’s stage. en the court's determination at this See banc brief determine whether not the Brace, presented 145 F.3d at Underwriters the issue. Concur- stage, At the en banc ex- rence at 732-33 n. than look to Underwriters Rather argument, argument. waived brief for the plicitly their self-execution LSAT’s Underwriters’ "[tjhe recognizes just court we could have the Underwriters Underwriters asked And, fact, they had briefed. we addressed self-exe- what did: whether is Q: cuting only self-executing, panel." Op. at 721 That the clause sec- briefs added). three, importantly, your But more tion that somewhere reply actually Underwriters’ en brief dis- brief? banc briefs, go A: desire the court In the en banc we did not into claims to have hold issue, Honor, self-executing: Your no we did not. Recording Argument, Safety question the Court is of Oral Nat’l before not wheth- Cas. Lloyd’s Corp. the Convention is what v. Certain Underwriters Lon er don, effect, (5th Cir.2009) (en banc), unimplemented preemptive any, an F.3d 599 if http://www.ca5.uscourts.gov/OralArg would have on a s/06/06-30262_5-21-2009.wma. Recording conflicting question state law. The is what later-in-time, Accordingly, we preemptive imple- cannot reverse trial effect a conflicting by holding law. is self-execut- mented has on Appellant’s Reply first forfeited En Banc Brief 6-7. If because Underwriters "it is suggestion argument, waived the we take concurrence’s then heading preceding pre- should be to "the for us to decide which issues look section sented, try case for language,” n. in- or to otherwise Concurrence at 733 Brace, different, parties,” again at 256. ference is no for there F.3d of the law in we leave the state speak, Green v.

[Supremacy] purgatory.” Clause Comm’rs, 574

Haskell Co. Bd. F.3d Cir.2009) (Gorsuch, J.,

dissenting rehearing en denial

banc) (citation quotation internal omitted).

marks

Respectfully, I dissent. McFADIN,

Laurie D. Bar Two d/b/a McFadin,

West; Stacy L. Two d/b/a West, Plaintiffs-Appellants,

Bar Foxy

Lynn GERBER, Roxy’s, d/b/a d/b/a Perspective Handbags;

Eternal Wil Foxy Gerber, II, Roxy’s,

liam d/b/a Perspective Handbags; Eternal

d/b/a Grenemyer, Defendants-Ap

Connie

pellees.

No. 09-50083. of Appeals, States Court

Fifth Circuit.

Nov.

Case Details

Case Name: Safety National Casualty Corp. v. Certain Underwriters at Lloyd's

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 19, 2009

Citation: 587 F.3d 714

Docket Number: 06-30262

Court Abbreviation: 5th Cir.