In honor of my successful work in
capitalist Warsaw, Poland today, I bring you Zschnerig v. Miller, 398 U.S. 429 (1968) from
the United States Supreme Court. I don’t remember it all that well
because I wasn’t born yet when they handed it down. You don’t remember it
all that well because, well, it was the 60’s…
This whole thing started
when decedent did what decedents do and died in Oregon. He was a
non-resident alien who obviously didn’t flip through the Oregon statutes before
he kicked the bucket. If he did, he would have learned that his sole
heirs in East Germany (I was there too this week and met a
very nice family attorney about the new German Family law FamFG) wouldn’t get
any of his estate because Oregon law provided that all property would escheat to the state of Oregon if it went to
nonresident aliens heirs in a country that could confiscate property without
In the decision below, the Supreme Court of Oregon
held that despite this statute, the heirs could get decedent’s real property
because the 1923 Treaty of Friendship, Commerce and Consular Rights with
Germany said so. Not so with the personal property. The
Oregon Court said that the same treaty gave Oregon the rights to the personal
property under the U.S. Supreme Court’s decision in Clark v. Allen, 331 U.S. 503 (1947) (holding that the FCCR
“does not cover personalty located in this country and which an American
citizen undertakes to leave to German nationals”).
With the U.S.
Department on their side, the heirs asked the U.S. Supreme Court to overrule Clark v. Allen.
The Court declined to do so. Instead, the Court held that the Oregon
legislature had overreached its constitutional powers. The escheat
statute was “an intrusion by the State into the field of foreign affairs which
the Constitution entrusts to the President and the
Congress. See Hines v. Davidowitz,
312 U. S. 52, 63.”
You see, the Oregon statute was
essentially anti-communist. It forbid non-resident aliens from the
benefit of property that their governments could confiscate. The Court
had addressed a facial challenge to a similar California statute in Clark v. Allen and held
it constitutional on its face. But here, the Court ruled on the statute’s
constitutionality as applied.
As applied, this statute had Oregon courts scrutinizing foreign diplomatic statements to determine whether a foreign government could confiscate property without just compensation.
The Court found three other Oregon cases where such foreign policy decisions affected Czech, Bulgarian, and Polish foreign policy. These, the Supreme Court said, were foreign policy decisions only for the Executive branch to make. For that reason, the court reversed the decision below and held the law unconstitutional. Justices Brennan, Stewart, and Harlan concurred in the result.