ewsba.se
The Republic of Austria, the Albertina Museum, and the Leopold Museum Foundation—the latter two both in Vienna—filed a response Friday to amicus briefs submitted by two US senators, in which they repeat their claim that the updated Holocaust Expropriated Art Recovery (HEAR) Act violates Article III of the US Constitution and the Tenth Amendment.
Austria, the Albertina, and the Leopold are defendants in a suit brought by Timothy Reif, a descendant of Fritz Grünbaum, a Jewish cabaret performer and collector who was killed in a death camp in 1941. Reif is seeking the return of several works by Egon Schiele that he alleges were looted by the Nazis when they seized Grünbaum’s collection. The defendants dispute the claim, arguing that the works in question are part of the same cache that was exported from Austria by Grünbaum’s sister-in-law in the 1930s and then sold to a Swiss dealer in the 1950s.
Although the defendants had previously argued in several motions that the HEAR Act is unconstitutional, this new filing responds to briefs submitted last month by the Department of Justice and by Senators Richard Blumenthal (Democrat of Connecticut) and John Cornyn (Republican of Texas). Those briefs presented additional legal precedent supporting the constitutionality of the HEAR Act. Friday’s response addresses each of those cases.Though the defendants “respect the work of the Senators and the Government, and their attention to trying to remedy at least some of the horrors of the Holocaust,” they believe that in passing the amended version of HEAR, “Congress exceeded its constitutional bounds,” the filing states.
Blumenthal and Cornyn did not immediately respond to requests for comment.
At the heart of the response are the 2025 amendments to the HEAR Act, which President Donald Trump signed into law last year. Originally signed in 2016, the act was set to expire in 2026; the amendments extend it indefinitely. Other key changes were meant to address several high-profile cases that had failed in court on technical grounds, including statutes of limitations that vary depending on the state in which a case is brought.
The defendants argue that the HEAR Act stops short of creating a federal law for art restitution, akin to federal copyright law, and in doing so “delegates the substantive means to restitute Nazi-looted art to the states,” the filing reads. Courts are then to rely on applicable state laws, but by eliminating defenses based on technicalities, the 2025 changes dictate how courts should rule on the cases before them.
As a result, the defendants argue, the HEAR Act violates both the Tenth Amendment, which states that any power not explicitly granted to the federal government belongs to the states, and Article III of the Constitution, specifically the separation-of-powers doctrine, which gives courts the authority to decide the cases before them and how to rule on them.
“By forbidding the federal courts from any longer considering these equitable defenses, Congress is intruding on the constitutional right and obligation of Article III courts to ‘decide’ such cases and controversies for themselves,” the defendants’ response reads.
One defense eliminated by the 2025 amendments is laches, under which an otherwise valid claim can be dismissed if the claimant unreasonably delayed bringing it. The change bars courts from conducting “any factfinding as to questions of whether ‘inexcusable delay’ by a plaintiff or the plaintiff’s predecessors caused the loss of critical evidence, resulting in ‘unfair prejudice’ to the current owner of allegedly stolen art,” the response states.
The filing adds, “By outlawing the laches defense in particular, which prevents unprovable allegations of Nazi theft from becoming de facto conclusive presumptions of Nazi theft, the HEAR Act unquestionably does compel particular factfinding in favor of plaintiffs.”
In a phone interview, William L. Charron, an attorney for the defendants, said the purpose of Friday’s filing was to respond directly to the additional arguments for the HEAR Act’s constitutionality raised by the Justice Department and Senators Blumenthal and Cornyn.
“The government and the Senators intervened and involved themselves in this case because they wanted to be heard as to their reasons why they believe the HEAR Act is constitutional, and so this was an opportunity for my clients to respond and explain why they respectfully disagree with those positions and respectfully believe the HEAR Act is unconstitutional,” he told ARTnews.
Charron said he believes Reif v. Republic of Austria can be decided without addressing the constitutionality of the HEAR Act. But if the courts decide they must rule on that question, he said, it is the kind of case that could eventually make its way to the Supreme Court.
“I believe these are important and serious issues,” Charron said of the arguments raised in the filing. “We have given the Court a number of arguments and grounds to dismiss the case without having to rule upon these constitutional questions. But if the Court decides that it does need to address the constitutionality of the HEAR Act, I certainly hope that it seriously considers the arguments that have been raised in this filing.”