Earlier this week the U.S. Supreme Court heard oral arguments in its latest takings case.
Wait, what? Did we miss something? A takings case, argued this week?
No, you didn't miss a land use or eminent domain case, but one in which Holocaust victims sued Germany in a U.S. court for seizure of property in the Second World War. The issues centered around the Foreign Sovereign Immunities Act, under which foreign countries are mostly immune from being haled into an American courtroom. But there is an exception for "expropriation," when property is "taken in violation of international law."
The plaintiffs argued that their property -- artwork and medieval treasures -- were literally taken from them by German and Hungarian authorities, so they qualified under the "taken" exception. The German and Hungarian governments, supported by the United States, argued that "taken" means expropriated, as in seized in the sense we takings lawyers think about "taken."
As counsel for Germany stated in the arguments (transcript here), "That language invoked the established international law doctrine known as the law of takings. As the Restatement and other sources show, the doctrine addresses only nations' takings of foreigners' property. And by referring to it, Congress incorporated its limits into the expropriation exception." Tr. at 3-4. Chief Justice Roberts responded by asking whether "expropriation of property can't be part of a campaign of genocide?" Tr. at 5 (mirroring some cases in which persecution for property rights advocacy has resulted in a valid asylum claim). And that revealed the heart of Germany's claim: that the "gravamen" (we prefer the term "vibe") of the complaint was about genocidal acts, not plain old takings. As counsel put it, responding to Justice Thomas' question about whether this was a genocide claim, not an expropriations claim:
MR. FREIMAN: Well, Your Honor, if, in fact, a -- a country is taking property with the intent of physically destroying a people or a part of a people, it --it's unquestionably a genocidal act.But the question, again, is what Congress intended in (a)(3). Was it invoking any kind of --anything that could be described as a taking, or does it have to be the gravamen of the claim?And, here, the gravamen of the claim in the example you gave would be genocide. But Congress did not see fit to create any kind of exception for genocide claims or other international human rights or law of war claims.
Tr. at 8.
The other major thread was whether the "in violation of international law" requirement means that even if these acts qualified as "takings," they were against international law because they were committed by these governments against their own citizens.
Here's the first Question Presented, which expressly contrasts "violates international law" takings with plain old taking of a country's own citizen's property:
1. Whether the "expropriation exception" of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(3), which abrogates foreign sovereign immunity when "rights in property taken in violation of international law are in issue," provides jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states' responsibility for takings of property.
Germany, Hungary, and the U.S. argued that FSIA was meant to create a limited exception for things like the Cuban government illegally expropriating property without paying compensation. (See here for an example of the Venezuela government's seizure of oil rigs falling within the takings in violation of international law FSIA exception.)
There's a whole lot more going on here, but the arguments are very, very interesting, both legally and historically, and there are worse ways to spend your time than listening to the recording (above), or reading the transcript. More on the arguments: "Nazi-Era Jewish Art Cases Get Mixed Reception from Justices.
We've always said that takings and property are everywhere, you just have to look.
Transcript, Federal Republic of Germany v. Phillipp, No. 19-351 (U.S. Dec. 7, 2020)
