TESTING THE LIMITS ON RESTRICTIONS ON CULTURAL GOODS; BRAVE, FOOLHARDY OR A BIT OF BOTH?
http://culturalpropertyobserver.blogspot.com/2013/10/testing-limits-on-restrictions-on.html
by Peter Tompa
This is what I said, more or less, to the audience of 100 or so people
at the New York City Bar last week. The sponsors of the event
commemorating the 30th Anniversary of the Convention on Cultural
Property Act asked me to speak about the ACCG's test case. So I did.
"I’ve had the honor and pleasure of representing a small non-profit advocacy group, the Ancient Coin Collectors Guild, in an effort to test import restrictions which as a practical matter make it impossible to import ancient “coins of Cypriot type” and “coins from China.”
Although the courts in the 4th Circuit have not been kind to us to date, let me explain why such an effort is not as crazy as it might seem to some. And while you yourself might not be as interested in ancient coins as I am, they make for an excellent type of artifact to use for a test case, because restrictions on them should raise serious questions of how far the State Department, US Customs and the archaeological community are taking the concept of “cultural property.”
Ancient coins are by far the most common ancient artifact. There are millions extent if you are talking about ones produced by classical civilizations in the West and billions extent if you include coins made in China and the rest of Asia. They are hardly rare as a class or “culturally significant,” if you like. They are not only widely and legally collected in the US, but also in Europe (including Cyprus), China and pretty much anywhere for that matter. Moreover, it’s hard to link them to a specific modern nation state. Like the $100 bills of today, ancient coins circulated far and wide well outside the borders of the ancient city states and empires that made them. And yet, despite this commonality, despite this widespread circulation, and despite this widespread popularity for collectors of many countries—including countries like Cyprus, China, Greece and Italy for which restrictions have been given, our State Department and Customs have seen it fit to restrict Americans from access to what the rest of the world enjoys. Talk about being “holier than the pope!” Or the Cultural Property Advisory Committee (CPAC) for that matter—because 2 CPAC members have stated publicly that State and Customs have acted against CPAC’s recommendations on coins.
Next, let’s discuss the governing statute, the Convention on Cultural Property Implementation Act or CPIA. You’ve already heard something about how the CPIA is the product of legislative compromise—and so it was. But how was this compromise worked into the law? In short, it was done—quite deliberately-- by drastically limiting executive authority.
Indeed, the CPIA contains significant procedural and substantive constraints on the executive authority to impose import restrictions on cultural goods. Restrictions may only be applied to archaeological artifacts of “cultural significance” “first discovered within” and “subject to the export control” of a specific UNESCO State Party. They must be part of a “concerted international response” of other market nations, and can only be applied after less onerous “self-help” measures are tried. Moreover, the CPIA contemplates that CPAC is to provide the executive with useful advice about this process, including what types of cultural goods should be subject to restriction.
The CPIA also limits the government’s authority to promulgate regulations imposing such import restrictions. In particular, once the State Department decision-maker imposes import restrictions, U.S. Customs and Border Protection (“CBP”) must then designate the material restricted by type or classification, making certain that the list of restricted material is sufficiently specific and precise to ensure that the restrictions are only applied to the material covered by any agreement to impose import restrictions and that “fair notice” is given to importers.
Why is this important for purposes of testing the regulations? Well, these limitations on executive discretion embedded in the statute give litigants an opening to argue that the decision making should be subject to judicial review. How should this work? And why didn’t courts in the 4th Circuit buy that argument?
Well, first the Administrative Procedure Act (APA) provides for judicial review of final agency actions. There is certainly a good argument that the “final agency action” here was US Customs’ promulgation of import restrictions, but the district court instead sided with the Government and its claim that the “final agency action” was the decision of the President’s designee approving a MOU with Cyprus and China. This allowed the Government to escape judicial review under the APA based on an old case, Franklin v. Massachusetts, that held that held that the actions of the president are not subject to judicial review because he is not an “agency” for purposes of the APA.
Frankly, I think that the district court got it wrong. Supreme Court case law says the final agency action is only the one where any liability attaches—and here any liability only flows from the regulations themselves, not the initial decision from State. Moreover, there is a presumption of judicial review embedded in the APA—so why did that presumption not control here? And let’s not forget, the decision maker was not the president himself, instead it was an assistant secretary in the State Department, who acted as his designee. It’s not at all clear in those circumstances whether Franklin should really apply.
Second, there is the rarely used but judicially recognized “non-statutory” or “ultra vires” review of whether the executive exceeded its statutory authority that applies where the APA does not. Interestingly, while the district court agreed with the Guild that the CPIA’s limitations on executive discretion made judicial ultra vires review appropriate, the district court then only undertook what purported to be ultra vires review of compliance with the CPIA with respect to two discrete issues, to the exclusion of all others, most notably the “concerted international response” requirement, before dismissing the case without allowing for any discovery. Presumably, a more sympathetic judge might undertake such a review of whether the executive complied with all the limitations on their authority.
Finally, there is the question of whether the courts should stay out of these issues altogether because import restrictions on cultural goods are “foreign policy matters.” The district court never reached this issue, mentioning it only in a footnote, but the Court of Appeals based its decision affirming the district court on this basis. The court of appeals completely ignored the Supreme Court’s “political question” test in doing so even though the Supreme Court has also held that it applies to such “foreign policy” claims.
That test calls for “a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in light of its nature and posture in a specific case, and the possible consequences of judicial action.” Baker v. Carr, 369 U.S. at 211-12. One wonders if a court that honestly applied this test could really conclude that import restrictions on coins constituted such a “foreign policy matter.” I submit not. But we will not know unless, of course, another test case is filed in another circuit, perhaps one less known for its pro-government leanings.
Okay, you might with ask with perfect 20-20 hindsight why then did the Guild file in the 4th Circuit? Well, the Guild is a small non-profit and it was done because filing elsewhere would have added unnecessary expense since my law firm is based in Washington, D.C. As a D.C. firm, we certainly would have liked to file in D.C. Circuit, which is well known for its expertise in administrative law. However, to get standing we needed to actually import some coins on the designated lists—and the most convenient ports for an import from Europe were in Baltimore and Dulles Airport in Virginia, both in the 4th Circuit. It was only after the coins were imported and seized by U.S. Customs in Baltimore that the case could go forward.
And what of those coins? Well, the government finally filed a forfeiture action against the coins the Guild imported. So we will soon see what, if any, of the same issues will be litigated in the context of that action. If you invite me back again in a few years, perhaps I will have more to say on that. For now though, let me thank you for inviting me to discuss this issue that is so important to the small businesses of the numismatic trade and collectors tonight."
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COMMENTARY
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The last paragraph of Peter Tompa's excellent review hints at very important developments to come.
The forfeiture action now being contested between the Government and the ACCG [UNITED STATES OF AMERICA, Plaintiff, v. Three Knife-Shaped Coins, Twelve Chinese Coins, and Seven Cypriot Coins, Defendants] is expected to offer scope for the ACCG's legal team to relentlessly expose what the ACCG believes to be gross and culpable maladministration of the CPIA, by archaeologist Maria Kouroupas and her archaeology-oriented subordinates.
This observer believes that there is much at stake in this trial for US antiquities collectors, in particular collectors of ancient coins and the trade that supplies them. But in a larger sense there is also much at stake for all liberty-loving Americans.
While collecting ancient coins and other antiquities might not impress most US citizens as a vitally important activity, it is certainly important to those who follow this particular avocation - just as are metal detecting (another activivty detested by archaeologists), hunting, target shooting and weapons ownership, and a host of other avocations and activities that are criticized for one reason or another.
In the case of collecting ancient coins, the critics are an extremely small minority of radical archaeologists who believe that preservation of the archaeological record is so important that it morally trumps all other human activities.
These radical archaeologists have views more extreme than those of the great majority of active archaeologists. In many cases they are not involved in fieldwork or other traditional archaeological investigations, but instead are academics, government employees such as Maria Kouroupas, or are former archaeologists now actually pursuing other careers, but still representing themselves as archaeologists.
One such is Paul Barford, who after a brief archaeological career in the UK moved to Poland in 1986, and was employed by the Communist regime until 1990.
There is no evidence that he has since been employed in any position related to archaeology. Presently a translator, he devotes a great deal of time to his blog [http://paul-barford.blogspot.com/], venting extreme anti-collecting and anti-metal-detecting opinions.
Certainly the numbers of radical archaeologists are in no way comparable to the legions of collectors and detectorists whom they assail. Why, then, are they important? Who pays any attention to them?
This is where archaeologist Maria Kouroupas and her archaeology-oriented subordinates enter the picture. They believe in a higher ideological cause: preservation of the archaeological record, which they consider to be more important than most if not all other human activities. They have a private and secret agenda, which is inconsistent with the original purpose and legislative intent of the laws they are charged with implementing and administering.
They are misusing their authority to pursue this secret agenda, at the expense of large numbers of US citizens whose legitimate interests in collecting ancient coins and other antiquities are seriously imperiled and damaged by this agenda and its consequent biased bureaucratic actions.
If Kouroupas and her archaeology-oriented subordinates can continue to successfully pursue their private agenda, twisting the law to turn it into a tool and weapon for imposing their peronal ideological beliefs upon the public, then other unelected, faceless bureaucrats who believe in "government by meritocracy" can also do likewise.
If that be the case, are any Americans really safe? In the words of Pastor Martin Niemöller:
First they came for the Socialists, and I did not speak out--
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out-- Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out-- Because I was not a Jew.
Then they came for me--and there was no one left to speak for me.
They have now come for the coin collectors -- and the ACCG is speaking out not only for them, but for all who love freedom and democracy.
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