Austria and Vienna Museums Renew Attack on HEAR Act's Constitutionality

The Republic of Austria, the Albertina Museum, and the Leopold Museum Foundation filed a response Friday doubling down on their claim that the amended Holocaust Expropriated Art Recovery (HEAR) Act violates Article III of the US Constitution and the Tenth Amendment.

The three defendants are fighting a suit by Timothy Reif, a descendant of Fritz Grünbaum, a Jewish cabaret performer and collector killed in a death camp in 1941. Reif seeks the return of several Egon Schiele works he says the Nazis looted when they seized Grünbaum's collection. The defendants dispute that account. They argue the works belong to a cache Grünbaum's sister-in-law exported from Austria in the 1930s and sold to a Swiss dealer in the 1950s.

Why another filing now?

The defendants had already argued in several motions that the HEAR Act is unconstitutional. Friday's response targets briefs filed last month by the Department of Justice and by Senators Richard Blumenthal (Democrat of Connecticut) and John Cornyn (Republican of Texas), which offered additional legal precedent supporting the act's constitutionality. The new filing addresses each of those cases.

The defendants acknowledge the lawmakers' motives but reject their conclusion. Though they "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 HEAR Act, "Congress exceeded its constitutional bounds," the filing states.

Blumenthal and Cornyn did not immediately respond to requests for comment.

What does the dispute turn on?

At the center of the response are the 2025 amendments to the HEAR Act, which President Donald Trump signed into law last year. President Barack Obama originally signed the act in 2016 with an expiry date of 2026; the amendments extend it indefinitely. Other changes were designed to fix high-profile cases that had failed on technical grounds, including state-by-state variations in statutes of limitations.

The defendants argue the act stops short of creating federal art-restitution law on the model of federal copyright law. Instead, they say, it "delegates the substantive means to restitute Nazi-looted art to the states," while stripping courts of defenses based on technicalities and dictating how they must rule.

That, they argue, breaches the Tenth Amendment, which reserves powers not granted to the federal government to the states, and Article III's separation-of-powers doctrine. "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 response reads.

One defense the 2025 amendments eliminated is laches, which can dismiss an otherwise valid claim 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 filing states.

It 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."

Could this reach the Supreme Court?

William L. Charron, an attorney for the defendants, said in a phone interview that Friday's filing answered the new arguments raised by the Justice Department and the two senators. "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 Reif v. Republic of Austria can be decided without ruling on the HEAR Act's constitutionality. If courts decide they must rule on that question, he said, the case is the kind that could eventually reach the Supreme Court. "I believe these are important and serious issues," Charron said. "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."

What does this change for claimants? Nothing yet — the filing is a reply, not a ruling. But if the court takes the constitutional question seriously, the durability of the indefinitely extended HEAR Act, and with it a key legal avenue for restitution heirs, now rests on how one federal judge reads the separation of powers.