539 U.S.

396

AMERICAN INSURANCE ASSOCIATION ET AL.

v.
GARAMENDI, INSURANCE COMMISSIONER, STATE OF
CALIFORNIA.
No. 02-722.

Supreme Court of United States.

Argued April 23, 2003.
Decided June 23, 2003.

The Nazi Government of Germany confiscated the value or proceeds of

many Jewish life insurance policies issued before and during the Second
World War. After the war, even a policy that had escaped confiscation
was likely to be dishonored, whether because insurers denied its existence
or claimed it had lapsed from unpaid premiums, or because the German
Government would not provide heirs with documentation of the
policyholder's death. Responsibility as between the government and
insurance companies is disputed, but the fact is that the proceeds of many
insurance policies issued to Jews before and during the war were paid to
the Third Reich or never paid at all. These confiscations and frustrations
of claims fell within the subject of reparations, which became a principal
object of Allied diplomacy after the war. Ultimately, the western Allies
placed the obligation to provide restitution to victims of Nazi persecution
on the new West German Government, which enacted restitution laws and
signed agreements with other countries for the compensation of their
nationals. Despite a payout of more than 100 billion deutsch marks as of
2000, however, these measures left out many claimants and certain types
of claims. After German reunification, class actions for restitution poured
into United States courts against companies doing business in Germany
during the Nazi era. Protests by defendant companies and their
governments prompted the United States Government to take action to try
to resolve the matter. Negotiations at the national level produced the
German Foundation Agreement, in which Germany agreed to establish a
foundation funded with 10 billion deutsch marks contributed equally by
the German Government and German companies to compensate the
companies' victims during the Nazi era. The President agreed that
whenever a German company was sued on a Holocaust-era claim in an

American court, the Government would (1) submit a statement that it

would be in this country's foreign policy interests for the foundation to be
the exclusive forum and remedy for such claims, and (2) try to get state
and local governments to respect the foundation as the exclusive
mechanism. As for insurance claims in particular, both countries agreed
that the German Foundation would work with the International
Commission on Holocaust Era Insurance Claims (ICHEIC), a voluntary
organization whose mission is to negotiate with European insurers to
provide information about and settlement of unpaid insurance policies,
and which has set up procedures to that end. The German agreement has
served as a model for similar agreements with Austria and France.
Meanwhile, California began its own enquiry into the issue, prompting
state legislation designed to force payment by defaulting insurers. Among
other laws, California's Holocaust Victim Insurance Relief Act of 1999
(HVIRA) requires any insurer doing business in the State to disclose
information about all policies sold in Europe between 1920 and 1945 by
the company or any one "related" to it upon penalty of loss of its state
business license. After HVIRA was enacted, the State issued
administrative subpoenas against several subsidiaries of European
insurance companies participating in the ICHEIC. Immediately, the
Federal Government informed California officials that HVIRA would
damage the ICHEIC, the only effective means to process quickly and
completely unpaid Holocaust era insurance claims, and that HVIRA
would possibly derail the German Foundation Agreement. Nevertheless,
the state insurance commissioner announced that he would enforce
HVIRA to its fullest. Petitioner insurance entities then filed this suit
challenging HVIRA's constitutionality. The District Court issued a
preliminary injunction against enforcing HVIRA and later granted
petitioners summary judgment. The Ninth Circuit reversed, holding, inter
alia, that HVIRA did not violate the federal foreign affairs power.
Held: California's HVIRA interferes with the President's conduct of the
Nation's foreign policy and is therefore preempted. Pp. 413-429.
(a) There is no question that at some point an exercise of state power that
touches on foreign relations must yield to the National Government's
policy or that generally there is executive authority to decide what that
policy should be. In foreign policymaking, the President, not Congress,
has the "lead role." First Nat. City Bank v. Banco Nacional de Cuba, 406
U. S. 759, 767. Specifically, the President has authority to make
"executive agreements" with other countries, requiring no ratification by
the Senate or approval by Congress. See, e. g., Dames & Moore v. Regan,

453 U. S. 654, 679, 682-683. Making such agreements to settle claims of

American nationals against foreign governments is a particularly
longstanding practice. Although the executive agreements with Germany,
Austria, and France at issue differ from past agreements in that they
address claims associated with formerly belligerent states, but against
corporations, not the foreign governments, the distinction does not matter.
Insisting on a sharp line between public and private acts in defining the
legitimate scope of the Executive's international negotiations would
hamstring the President in settling international controversies. Generally,
then, valid executive agreements are fit to preempt state law, and if the
agreements here had expressly preempted laws like HVIRA, the issue
would be straightforward. But since these agreements include no
preemption clause, petitioners' preemption claim rests on the asserted
interference with Presidential foreign policy that the agreements embody.
The principal support for this claim of preemption is Zschernig v. Miller,
389 U. S. 429. In invalidating an Oregon statute, the Zschernig majority
relied on statements in previous cases that are open to the reading that
state action with more than incidental effect on foreign affairs is
preempted, even absent any affirmative federal activity in the subject area
of the state law, and hence without any showing of conflict. See, e. g., id.,
at 432. Justice Harlan, concurring in the result, disagreed on this point,
arguing that its implication of preemption of the entire foreign affairs field
was at odds with other cases suggesting that, absent positive federal
action, States may legislate in areas of their traditional competence even
though their statutes may have an incidental effect on foreign relations.
Id., at 459. Whether respect for the executive foreign relations power
requires a categorical choice between the contrasting theories of field and
conflict preemption evident in Zschernig requires no answer here, for
even on Justice Harlan's view, shared by the majority, the likelihood that
state legislation will produce something more than incidental effect in
conflict with the National Government's express foreign policy would
require preemption of the state law. See also United States v. Pink, 315 U.
S. 203, 230-231. And since on his view it is legislation within "areas of . .
. traditional competence" that gives a State any claim to prevail, 389 U. S.,
at 459, it is reasonable to consider the strength of the state interest, judged
by standards of traditional practice, when deciding how serious a conflict
must be shown before declaring the state law preempted. Pp. 413-420.
(b) There is a sufficiently clear conflict between HVIRA and the
President's foreign policy, as expressed both in the executive agreements
with Germany, Austria, and France, and in statements by high-level
Executive Branch officials, to require preemption here even without any
consideration of the State's interest. The account of negotiations toward

those agreements shows that the consistent Presidential foreign policy has
been to encourage European governments and companies to volunteer
settlement funds and disclosure of policy information, in preference to
litigation or coercive sanctions. California has taken a different tack:
HVIRA's economic compulsion to make public disclosure, of far more
information about far more policies than ICHEIC rules require, employs
"a different, state system of economic pressure," and in doing so undercuts
the President's diplomatic discretion and the choice he has made
exercising it. Crosby v. National Foreign Trade Council, 530 U. S. 363,
376. Whereas the President's authority to provide for settling claims in
winding up international hostilities requires flexibility in wielding "the
coercive power of the national economy" as a tool of diplomacy, id., at
377, HVIRA denies this, by making exclusion from a large sector of the
American insurance market the automatic sanction for non-compliance
with the State's own disclosure policies. HVIRA thus compromises the
President's very capacity to speak for the Nation with one voice in dealing
with other governments to resolve claims arising out of World War II.
Although the HVIRA disclosure requirement's goal of obtaining
compensation for Holocaust victims is also espoused by the National
Government, the fact of a common end hardly neutralizes conflicting
means. The express federal policy and the clear conflict raised by the state
statute are alone enough to require state law to yield. Pp. 420-425.
(c) If any doubt about the clarity of the conflict remained, it would have to
be resolved in the National Government's favor, given the weakness of the
State's interest, when evaluated in terms of traditional state legislative
subject matter, in regulating disclosure of European Holocaust-era
insurance policies in the manner of HVIRA. Even if California's
underlying concern for its several thousand Holocaust survivors is
recognized as a powerful one, the same objective dignifies the National
Government's interest in devising its chosen mechanism for voluntary
settlements, there being approximately 100,000 survivors in the country,
only a small fraction of them in California. As against the federal
responsibility, the humanity underlying the state statute could not give the
State the benefit of any doubt in resolving the conflict with national
policy. Pp. 425-427.
(d) California seeks to use an iron fist where the President has consistently
chosen kid gloves. The efficacy of the one approach versus the other is
beside the point, since preemption turns not on the wisdom of the
National Government's policy but on the evidence of conflict. Here, the
evidence is more than sufficient to demonstrate that HVIRA stands in the
way of the President's diplomatic objectives. P. 427.

(e) The Court rejects the State's submission that even if HVIRA does
interfere with Executive Branch foreign policy, Congress authorized state
law of this sort in the McCarran-Ferguson Act and the U. S. Holocaust
Assets Commission Act of 1998. To begin with, the effect of any
congressional authorization on the preemption enquiry is far from clear,
but in any event neither statute does the job the State ascribes to it.
McCarran-Ferguson's purpose was to limit congressional preemption of
state insurance laws under the commerce power, whether dormant or
exercised, see, e. g., Department of Treasury v. Fabe, 508 U. S. 491, 499500, and it cannot plausibly be read to address preemption by executive
conduct in foreign affairs. Nor is HVIRA authorized by the Holocaust
Commission Act, which set up a Presidential Commission to study
Holocaust-era assets that came into the Government's control, 3(a)(1),
and directed the Commission to encourage state insurance commissioners
to prepare a report on the Holocaust-related claims practices of all
insurance companies doing business in this country after January 30, 1933,
3(a)(4)(A). The Commission's focus was limited to assets held by the
Government, and the Act's reference to the state insurance commissioners'
report was expressly limited "to the degree the information is available,"
3(a)(4)(B), which can hardly be read to condone state sanctions interfering
with federal efforts to resolve claims. Finally, Congress has done nothing
to express disapproval of the President's policy. Given the President's
considerable independent authority in this area, Congress's silence cannot
be equated with disapproval. Pp. 427-429.
296 F. 3d 832, reversed.
SOUTER, J., delivered the opinion of the Court, in which REHNQUIST,
C. J., and O'CONNOR, KENNEDY, and BREYER, JJ., joined.
GINSBURG, J., filed a dissenting opinion, in which STEVENS, SCALIA,
and THOMAS, JJ., joined, post, p. 430.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT.
Kenneth S. Geller argued the cause for petitioners. With him on the briefs
were John J. Sullivan, Stephen M. Shapiro, Neil M. Soltman, Peter
Simshauser, William H. Webster, Linda Dakin-Grimm, and Sally Agel.
Frederick W. Reif filed briefs for respondents Gerling Companies urging
reversal. With him on the briefs were Dina G. Daskalakis, Keith D.
Barrack, George L. O'Connell, and Timothy P. Grieve.
Deputy Solicitor General Kneedler argued the cause for the United States

as amicus curiae urging reversal. With him on the briefs were Acting
Solicitor General Clement, Assistant Attorney General McCallum,
Barbara McDowell, Mark B. Stern, Douglas Hallward-Driemeier, and
William H. Taft IV. Frank Kaplan argued the cause for respondent. With
him on the brief were Jesse J. Contreras, Larry G. Simon, Andrew W.
Stroud, Michael D. Ramsey, and Leslie Tick.*
JUSTICE SOUTER delivered the opinion of the Court.

California's Holocaust Victim Insurance Relief Act of 1999 (HVIRA or Act),

Cal. Ins. Code Ann. 13800-13807 (West Cum. Supp. 2003), requires any
insurer doing business in that State to disclose information about all policies
sold in Europe between 1920 and 1945 by the company itself or any one
"related" to it. The issue here is whether HVIRA interferes with the National
Government's conduct of foreign relations. We hold that it does, with the
consequence that the state statute is preempted.

2* A
3

The Nazi Government of Germany engaged not only in genocide and

enslavement but theft of Jewish assets, including the value of insurance
policies, and in particular policies of life insurance, a form of savings held by
many Jews in Europe before the Second World War. Early on in the Nazi era,
loss of livelihood forced Jews to cash in life insurance policies prematurely,
only to have the government seize the proceeds of the repurchase, and many
who tried to emigrate from Germany were forced to liquidate insurance policies
to pay the steep "flight taxes" and other levies imposed by the Third Reich to
keep Jewish assets from leaving the country. See G. Feldman, Allianz and the
German Insurance Business, 1933-1945, pp. 249-262 (2001). Before long, the
Reich began simply seizing the remaining policies outright.1 In 1941, the 11th
Decree of the Reich Citizenship Law declared the confiscation of assets
(including insurance policies) of Jews deported to the concentration camps, and
two years later the 13th Decree did the same with respect to property of the
dead, each decree requiring banks and insurance companies to identify Jewish
accounts and transmit the funds to the Reich treasury. Id., at 264-274. After the
war, even a policy that had escaped confiscation was likely to be dishonored,
whether because insurers denied its existence or claimed it had lapsed from
unpaid premiums during the persecution, or because the government would not
provide heirs with documentation of the policyholder's death. See M. Bazyler,
Holocaust Justice: The Battle for Restitution in America's Courts 117-122
(2003). Responsibility as between the government and insurance companies is

disputed, but at the end of the day, the fact is that the value or proceeds of
many insurance policies issued to Jews before and during the war were paid to
the Reich or never paid at all.
4

These confiscations and frustrations of claims fell within the subject of

reparations, which became a principal object of Allied diplomacy soon after the
war. At the Potsdam Conference, the United States, Britain, and the Soviet
Union took reparations for wartime losses by seizing industrial assets from their
respective occupation zones, putting into effect the plan originally envisioned at
the Yalta Conference months before. Protocol of Proceedings of the Berlin
(Potsdam) Conference, 1945, in 3 Dept. of State, Treaties and Other
International Agreements of the United States of America 1776-1949, pp. 1207,
1213-1214 (C. Bevans comp. 1969) (hereinafter Bevans); Report of the Crimea
(Yalta) Conference, 1945, in 3 Bevans 1005; Protocol of the Crimea (Yalta)
Conference on the Question of the German Reparation in Kind, 1945, in 3
Bevans 1020. A year later, the United States was among the parties to an
agreement to share seized assets with other western allies as settlement, as to
each signatory nation, of "all its claims and those of its nationals against the
former German Government and its Agencies, of a governmental or private
nature, arising out of the war." Agreement on Reparation from Germany, on the
Establishment of Inter-Allied Reparation Agency and Restitution of Monetary
Gold, 61 Stat. 3163, Art. 2(A), T. I. A. S. No. 1655 (hereinafter Paris
Agreement).

The effect of the Paris Agreement was curtailed, however, and attention to
reparations intentionally deferred, when the western Allies moved to end their
occupation and reestablish a sovereign Germany as a buffer against Soviet
expansion. They worried that continued reparations would cripple the new
Federal Republic of Germany economically, and so decided in the London
Debt Agreement to put off "[c]onsideration of claims arising out of the second
World War by countries which were at war with or were occupied by Germany
during that war, and by nationals of such countries, against the Reich and
agencies of the Reich . . . until the final settlement of the problem of
reparation." Agreement on German External Debts, Feb. 27, 1953, 4 U. S. T.
443, 449, T. I. A. S. No. 2792. These terms were construed by German courts
as postponing resolution of foreign claims against both the German
Government and German industry, to await the terms of an ultimate postwar
treaty. See Neuborne, Preliminary Reflections on Aspects of Holocaust-Era
Litigation in American Courts, 80 Wash. U. L. Q. 795, 813-814, and n. 62
(2002).

In the meantime, the western Allies placed the obligation to provide restitution

to victims of Nazi persecution on the new West German Government. See

Convention on the Settlement of Matters Arising Out of the War and the
Occupation, May 26, 1952, 6 U. S. T. 4411, 4452-4484, as amended by
Protocol on Termination of the Occupation Regime in the Federal Republic of
Germany, Oct. 23, 1954, [1955] 6 U. S. T. 4117, T. I. A. S. No. 3425. This had
previously been a responsibility of the western military governments, which
had issued several decrees for the return of property confiscated by the Nazis.
See N. Robinson, Restitution Legislation in Germany: A Survey of Enactments
(1949); U. S. Military Law Nos. 52 and 59 (reprinted in U. S. Military
Government Gazette, Germany, Issue A, p. 24 (June 1, 1946) and Issue G, p. 1
(Nov. 10, 1947)). West Germany enacted its own restitution laws in 1953 and
1956, see Institute of Jewish Affairs, The (West German) Federal
Compensation Law (BEG) and its Implementary Regulations (1957), and
signed agreements with 16 countries for the compensation of their nationals,
including the Luxembourg Agreement with Israel, Sept. 10, 1952, 162 U. N. T.
S. 205; see Supplemental Excerpts of Record in No. 01-17023 (CA9) (SER), p.
1244. Despite a payout of more than 100 billion deutsch marks as of 2000, see
ibid., these measures left out many claimants and certain types of claims, and
when the agreement reunifying East and West Germany, see Treaty on the
Final Settlement with Respect to Germany, Sept. 12, 1990, 1696 U. N. T. S.
124, was read by the German courts as lifting the London Debt Agreement's
moratorium on Holocaust claims by foreign nationals, class-action lawsuits for
restitution poured into United States courts against companies doing business in
Germany during the Nazi era. See Neuborne, supra, at 796, n. 2, 813-814; see
generally Bazyler, Nuremberg in America: Litigating the Holocaust in United
States Courts, 34 Rich. L. Rev. 1 (2000) (describing the flood of lawsuits after
1996).
7

These suits generated much protest by the defendant companies and their
governments, to the point that the Government of the United States took action
to try to resolve "the last great compensation related negotiation arising out of
World War II." SER 940 (press briefing by Deputy Secretary of Treasury
Eizenstat); see S. Eizenstat, Imperfect Justice 208-212 (2003). From the
beginning, the Government's position, represented principally by Under
Secretary of State (later Deputy Treasury Secretary) Stuart Eizenstat, stressed
mediated settlement "as an alternative to endless litigation" promising little
relief to aging Holocaust survivors. SER 953 (press conference by Secretary of
State Albright). Ensuing negotiations at the national level produced the
German Foundation Agreement, signed by President Clinton and German
Chancellor Schrder in July 2000, in which Germany agreed to enact
legislation establishing a foundation funded with 10 billion deutsch marks
contributed equally by the German Government and German companies, to be

used to compensate all those "who suffered at the hands of German companies
during the National Socialist era." Agreement Concerning the Foundation
"Remembrance, Responsibility and the Future," 39 Int'l Legal Materials 1298
(2000).
8

The willingness of the Germans to create a voluntary compensation fund was

conditioned on some expectation of security from lawsuits in United States
courts, and after extended dickering President Clinton put his weight behind
two specific measures toward that end. SER 937 (letter from President Clinton
to Chancellor Schrder committing to a "mechanism to provide the legal peace
desired by the German government and German companies"); see also
Eizenstat, supra, at 253-258. First, the Government agreed that whenever a
German company was sued on a Holocaustera claim in an American court, the
Government of the United States would submit a statement that "it would be in
the foreign policy interests of the United States for the Foundation to be the
exclusive forum and remedy for the resolution of all asserted claims against
German companies arising from their involvement in the National Socialist era
and World War II." 39 Int'l Legal Materials, at 1303. Though unwilling to
guarantee that its foreign policy interests would "in themselves provide an
independent legal basis for dismissal," that being an issue for the courts, the
Government agreed to tell courts "that U. S. policy interests favor dismissal on
any valid legal ground." Id., at 1304. On top of that undertaking, the
Government promised to use its "best efforts, in a manner it considers
appropriate," to get state and local governments to respect the foundation as the
exclusive mechanism. Id., at 1300. 2

As for insurance claims specifically, both countries agreed that the German
Foundation would work with the International Commission on Holocaust Era
Insurance Claims (ICHEIC), a voluntary organization formed in 1998 by
several European insurance companies, the State of Israel, Jewish and
Holocaust survivor associations, and the National Association of Insurance
Commissioners, the organization of American state insurance commissioners.
The job of the ICHEIC, chaired by former Secretary of State Eagleburger,
includes negotiation with European insurers to provide information about
unpaid insurance policies issued to Holocaust victims and settlement of claims
brought under them. It has thus set up procedures for handling demands against
participating insurers, including "a reasonable review . . . of the participating
companies' files" for production of unpaid policies, "an investigatory process to
determine the current status" of insurance policies for which claims are filed,
and a "claims and valuation process to settle and pay individual claims,"
employing "relaxed standards of proof." SER 1236-1237.

10

In the pact with the United States, Germany stipulated that "insurance claims
that come within the scope of the current claims handling procedures adopted
by the [ICHEIC] and are made against German insurance companies shall be
processed by the companies and the German Insurance Association on the basis
of such procedures and on the basis of additional claims handling procedures
that may be agreed among the Foundation, ICHEIC, and the German Insurance
Association." 39 Int'l Legal Materials, at 1299. And in a supplemental
agreement formalized in October 2002, the German Foundation agreed to set
aside 200 million deutsch marks, to be used for insurance claims approved by
the ICHEIC and a portion of the ICHEIC's operating expenses, with another
100 million in reserve if the initial fund should run out. Agreement Concerning
Holocaust Era Insurance Claims, in Lodging of Petitioners in Gerling Global
Reinsurance Corp. v. Garamendi, No. 02-733, pp. L-70 to L-71, L-78 to L-79,
cert. pending. [Reporter's Note: See post, p. 955.] The foundation also bound
itself to contribute 350 million deutsch marks to a "humanitarian fund"
administered by the ICHEIC, id., at L-80, and it agreed to work with the
German Insurance Association and the German insurers who had joined the
ICHEIC, "with a view to publishing as comprehensive a list as possible of
holders of insurance policies issued by German companies who may have been
Holocaust victims," id., at L-147. Those efforts, which control release of
information in ways that respect German privacy laws limiting publication of
business records, have resulted in the recent release of the names of over
360,000 Holocaust victims owning life insurance policies issued by German
insurers. See Treaster, Holocaust List Is Unsealed by Insurers, N. Y. Times,
Apr. 29, 2003, section A, p. 26, col. 6.

11

The German Foundation pact has served as a model for similar agreements with
Austria and France,3 and the United States Government continues to pursue
comparable agreements with other countries. Reply Brief for Petitioners 6, n. 2.

B
12

While these international efforts were underway, California's Department of

Insurance began its own enquiry into the issue of unpaid claims under Nazi-era
insurance policies, prompting state legislation designed to force payment by
defaulting insurers. In 1998, the state legislature made it an unfair business
practice for any insurer operating in the State to "fai[l] to pay any valid claim
from Holocaust survivors." Cal. Ins. Code Ann. 790.15(a) (West Cum. Supp.
2003). The legislature placed "an affirmative duty" on the Department of
Insurance "to play an independent role in representing the interests of
Holocaust survivors," including an obligation to "gather, review, and analyze
the archives of insurers . . . to provide for research and investigation" into

unpaid insurance claims. 12967(a)(1), (2).

13

State legislative efforts culminated the next year with passage of Assembly Bill
No. 600, 1999 Cal. Stats. ch. 827, the first section of which amended the State's
Code of Civil Procedure to allow state residents to sue in state court on
insurance claims based on acts perpetrated in the Holocaust and extended the
governing statute of limitations to December 31, 2010. Cal. Civ. Proc. Code
Ann. 354.5 (West Cum. Supp. 2003). The section of the bill codified as
HVIRA, at issue here,4 requires "[a]ny insurer currently doing business in the
state" to disclose the details of "life, property, liability, health, annuities,
dowry, educational, or casualty insurance policies" issued "to persons in
Europe, which were in effect between 1920 and 1945." Cal. Ins. Code Ann.
13804(a) (West Cum. Supp. 2003). The duty is to make disclosure not only
about policies the particular insurer sold, but also about those sold by any
"related company," ibid., including "any parent, subsidiary, reinsurer, successor
in interest, managing general agent, or affiliate company of the insurer,"
13802(b),5 whether or not the companies were related during the time when the
policies subject to disclosure were sold, 13804(a). Nor is the obligation
restricted to policies sold to "Holocaust victims" as defined in the Act,
13802(a); it covers policies sold to anyone during that time, 13804(a). The
insurer must report the current status of each policy, the city of origin, domicile,
or address of each policyholder, and the names of the beneficiaries, 13804(a),
all of which is to be put in a central registry open to the public, 13803. The
mandatory penalty for default is suspension of the company's license to do
business in the State, 13806, and there are misdemeanor criminal sanctions
for falsehood in certain required representations about whether and to whom
the proceeds of each policy have been distributed, 13804(b).

14

HVIRA was meant to enhance enforcement of both the unfair business practice
provision ( 790.15) and the provision for suit on the policies in question (
354.5) by "ensur[ing] that any involvement [that licensed California insurers] or
their related companies may have had with insurance policies of Holocaust
victims are [sic] disclosed to the state." 13801(e); see ibid. (HVIRA is
designed to "ensure the rapid resolution" of unpaid insurance claims,
"eliminating the further victimization of these policyholders and their
families"); Excerpt of Record in No. 01-17023 (CA9) (ER), p. 994 (California
Senate Committee on Insurance report) (HVIRA was proposed to "ensure that
Holocaust victims or their heirs can take direct action on their own behalf with
regard to insurance policies and claims"). While the legislature acknowledged
that "[t]he international Jewish community is in active negotiations with
responsible insurance companies through the [ICHEIC] to resolve all
outstanding insurance claims issues," it still thought the Act "necessary to

protect the claims and interests of California residents, as well as to encourage

the development of a resolution to these issues through the international
process or through direct action by the State of California, as necessary."
13801(f).
15

After HVIRA was enacted, administrative subpoenas were issued against

several subsidiaries of European insurance companies participating in the
ICHEIC. See, e. g., SER 785, 791. Immediately, in November 1999, Deputy
Secretary Eizenstat wrote to the insurance commissioner of California that
although HVIRA "reflects a genuine commitment to justice for Holocaust
victims and their families, it has the unfortunate effect of damaging the one
effective means now at hand to process quickly and completely unpaid
insurance claims from the Holocaust period, the [ICHEIC]." Id., at 975. The
Deputy Secretary said that "actions by California, pursuant to this law, have
already threatened to damage the cooperative spirit which the [ICHEIC]
requires to resolve the important issue for Holocaust survivors," and he also
noted that ICHEIC Chairman Eagleburger had expressed his opposition to
"sanctions and other pressures brought by California on companies with whom
he is obtaining real cooperation." Id., at 976. The same day, Deputy Secretary
Eizenstat also wrote to California's Governor making the same points, and
stressing that HVIRA would possibly derail the German Foundation
Agreement: "Clearly, for this deal to work . . . German industry and the
German government need to be assured that they will get `legal peace,' not just
from class-action lawsuits, but from the kind of legislation represented by the
California Victim Insurance Relief Act." Id., at 970. These expressions of the
National Government's concern proved to be of no consequence, for the state
commissioner announced at an investigatory hearing in December 1999 that he
would enforce HVIRA to its fullest, requiring the affected insurers to make the
disclosures, leave the State voluntarily, or lose their licenses. ER 1097.

II
16

After this ultimatum, the petitioners here, several American and European
insurance companies and the American Insurance Association (a national trade
association), filed suit for injunctive relief against respondent insurance
commissioner of California, challenging the constitutionality of HVIRA. The
District Court issued a preliminary injunction against enforcing the Act,
reflecting its probability judgment that "HVIRA is unconstitutional based on a
violation of the federal foreign affairs power and a violation of the Commerce
Clause." App. to Pet. for Cert. 110a. On appeal, the Ninth Circuit rejected these
grounds for questioning the Act but left the preliminary injunction in place
until the District Court could consider whether petitioners were likely to

succeed on their due process claim. Gerling Global Reinsurance Corp. of

America v. Low, 240 F. 3d 739, 754 (2001).
17

On remand, the District Court addressed two points. Although it held the Act to
be within the State's "legislative jurisdiction," as it applied only to insurers
licensed to do business in the State, the District Court granted summary
judgment to the petitioners on the ground of a procedural due process violation
in "mandating license suspension for non-performance of what may be
impossible tasks without allowing for a meaningful hearing." Gerling Global
Reinsurance Corp. of America v. Low, 186 F. Supp. 2d 1099, 1108, 1113 (ED
Cal. 2001). In a second appeal, the same panel of the Ninth Circuit reversed
again. While it agreed that the Act was not beyond the State's legislative
authority, the Court of Appeals rejected the conclusion that procedural due
process required an opportunity for insurers to raise an impossibility excuse for
noncompliance with the law, 296 F. 3d 832, 845-848 (2002), and it reaffirmed
its prior ruling that the Act violated neither the foreign affairs nor the foreign
commerce powers, id., at 849. Given the importance of the issue, 6 we granted
certiorari, 537 U. S. 1100 (2003), and now reverse.7

III
18

The principal argument for preemption made by petitioners and the United
States as amicus curiae is that HVIRA interferes with foreign policy of the
Executive Branch, as expressed principally in the executive agreements with
Germany, Austria, and France. The major premises of the argument, at least,
are beyond dispute. There is, of course, no question that at some point an
exercise of state power that touches on foreign relations must yield to the
National Government's policy, given the "concern for uniformity in this
country's dealings with foreign nations" that animated the Constitution's
allocation of the foreign relations power to the National Government in the first
place. Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 427, n. 25 (1964);
see Crosby v. National Foreign Trade Council, 530 U. S. 363, 381-382, n. 16
(2000) ("`[T]he peace of the whole ought not to be left at the disposal of a
PART'" (quoting The Federalist No. 80, pp. 535-536 (J. Cooke ed. 1961) (A.
Hamilton))); Id., No. 44, at 299 (J. Madison) (emphasizing "the advantage of
uniformity in all points which relate to foreign powers"); Id., No. 42, at 279 (J.
Madison) ("If we are to be one nation in any respect, it clearly ought to be in
respect to other nations"); see also First Nat. City Bank v. Banco Nacional de
Cuba, 406 U. S. 759, 769 (1972) (plurality opinion) (act of state doctrine was
"fashioned because of fear that adjudication would interfere with the conduct of
foreign relations"); Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434,
449 (1979) (negative Foreign Commerce Clause protects the National

Government's ability to speak with "one voice" in regulating commerce with

foreign countries (internal quotation marks omitted)).
19

Nor is there any question generally that there is executive authority to decide
what that policy should be. Although the source of the President's power to act
in foreign affairs does not enjoy any textual detail, the historical gloss on the
"executive Power" vested in Article II of the Constitution has recognized the
President's "vast share of responsibility for the conduct of our foreign
relations." Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 610-611
(1952) (Frankfurter, J., concurring). While Congress holds express authority to
regulate public and private dealings with other nations in its war and foreign
commerce powers, in foreign affairs the President has a degree of independent
authority to act. See, e. g., Chicago & Southern Air Lines, Inc. v. Waterman S.
S. Corp., 333 U. S. 103, 109 (1948) ("The President . . . possesses in his own
right certain powers conferred by the Constitution on him as Commander-inChief and as the Nation's organ in foreign affairs"); Youngstown, supra, at 635636, n. 2 (Jackson, J., concurring in judgment and opinion of Court) (the
President can "act in external affairs without congressional authority" (citing
United States v. Curtiss-Wright Export Corp., 299 U. S. 304 (1936))); First
Nat. City Bank v. Banco Nacional de Cuba, supra, at 767 (the President has
"the lead role. . . in foreign policy" (citing Sabbatino, supra)); Sale v. Haitian
Centers Council, Inc., 509 U. S. 155, 188 (1993) (the President has "unique
responsibility" for the conduct of "foreign and military affairs").

20

At a more specific level, our cases have recognized that the President has
authority to make "executive agreements" with other countries, requiring no
ratification by the Senate or approval by Congress, this power having been
exercised since the early years of the Republic. See Dames & Moore v. Regan,
453 U. S. 654, 679, 682-683 (1981); United States v. Pink, 315 U. S. 203, 223,
230 (1942); United States v. Belmont, 301 U. S. 324, 330-331 (1937); see also
L. Henkin, Foreign Affairs and the United States Constitution 219, 496, n. 163
(2d ed. 1996) ("Presidents from Washington to Clinton have made many
thousands of agreements . . . on matters running the gamut of U. S. foreign
relations"). Making executive agreements to settle claims of American
nationals against foreign governments is a particularly longstanding practice,
the first example being as early as 1799, when the Adams administration settled
demands against the Dutch Government by American citizens who lost their
cargo when Dutch privateers overtook the schooner Wilmington Packet. See
Dames & Moore, supra, at 679-680, and n. 8; 5 Dept. of State, Treaties and
Other International Acts of the United States 1075, 1078-1079 (H. Miller ed.
1937). Given the fact that the practice goes back over 200 years, and has
received congressional acquiescence throughout its history, the conclusion "

[t]hat the President's control of foreign relations includes the settlement of

claims is indisputable." Pink, supra, at 240 (Frankfurter, J., concurring); see
315 U. S., at 223-225 (opinion of the Court); Belmont, supra, at 330-331;
Dames & Moore, supra, at 682.

21

The executive agreements at issue here do differ in one respect from those just
mentioned insofar as they address claims associated with formerly belligerent
states, but against corporations, not the foreign governments. But the
distinction does not matter. Historically, wartime claims against even nominally
private entities have become issues in international diplomacy, and three of the
postwar settlements dealing with reparations implicating private parties were
made by the Executive alone.8 Acceptance of this historical practice is
supported by a good pragmatic reason for depending on executive agreements
to settle claims against foreign corporations associated with wartime
experience. As shown by the history of insurance confiscation mentioned
earlier, untangling government policy from private initiative during wartime is
often so hard that diplomatic action settling claims against private parties may
well be just as essential in the aftermath of hostilities as diplomacy to settle
claims against foreign governments. While a sharp line between public and
private acts works for many purposes in the domestic law, insisting on the same
line in defining the legitimate scope of the Executive's international
negotiations would hamstring the President in settling international
controversies. Cf. Pink, supra, at 234-242 (Frankfurter, J., concurring) (noting
the unsoundness of transplanting "judicial subtleties" of domestic law into "the
solution of analogous problems between friendly nations").

22

Generally, then, valid executive agreements are fit to preempt state law, just as
treaties are,9 and if the agreements here had expressly preempted laws like
HVIRA, the issue would be straightforward. See Belmont, supra, at 327, 331;
Pink, supra, at 223, 230-231. But petitioners and the United States as amicus
curiae both have to acknowledge that the agreements include no preemption
clause, and so leave their claim of preemption to rest on asserted interference
with the foreign policy those agreements embody. Reliance is placed on our
decision in Zschernig v. Miller, 389 U. S. 429 (1968).

23

Zschernig dealt with an Oregon probate statute prohibiting inheritance by a

nonresident alien, absent showings that the foreign heir would take the property
"without confiscation" by his home country and that American citizens would
enjoy reciprocal rights of inheritance there. Id., at 430-431. Two decades
earlier, Clark v. Allen, 331 U. S. 503 (1947), had held that a similar California
reciprocity law "did not on its face intrude on the federal domain," Zschernig,
supra, at 432, but by the time Zschernig (an East German resident) brought his

challenge, it was clear that the Oregon law in practice had invited "minute
inquiries concerning the actual administration of foreign law," 389 U. S., at
435, and so was providing occasions for state judges to disparage certain
foreign regimes, employing the language of the anti-Communism prevalent
here at the height of the Cold War, see id., at 440 (the Oregon law had made
"unavoidable judicial criticism of nations established on a more authoritarian
basis than our own"). Although the Solicitor General, speaking for the State
Department, denied that the state statute "unduly interfere[d] with the United
States' conduct of foreign relations," id., at 434 (internal quotation marks
omitted), the Court was not deterred from exercising its own judgment to
invalidate the law as an "intrusion by the State into the field of foreign affairs
which the Constitution entrusts to the President and the Congress," id., at 432.
24

The Zschernig majority relied on statements in a number of previous cases open

to the reading that state action with more than incidental effect on foreign
affairs is preempted, even absent any affirmative federal activity in the subject
area of the state law, and hence without any showing of conflict. The Court
cited the pronouncement in Hines v. Davidowitz, 312 U. S. 52, 63 (1941), that "
[o]ur system of government is such that the interest of the cities, counties and
states, no less than the interest of the people of the whole nation, imperatively
requires that federal power in the field affecting foreign relations be left entirely
free from local interference." See 389 U. S., at 432; id., at 442-443 (Stewart, J.,
concurring) (setting out the foregoing quotation). Likewise, Justice Stewart's
concurring opinion viewed the Oregon statute as intruding "into a domain of
exclusively federal competence." Id., at 442; see also Belmont, 301 U. S., at
331 ("[C]omplete power over international affairs is in the national government
and is not and cannot be subject to any curtailment or interference on the part of
the several states" (citing Curtiss-Wright Export Corp., 299 U. S., at 316 et
seq.)).

25

Justice Harlan, joined substantially by Justice White, disagreed with the

Zschernig majority on this point, arguing that its implication of preemption of
the entire field of foreign affairs was at odds with some other cases suggesting
that in the absence of positive federal action "the States may legislate in areas
of their traditional competence even though their statutes may have an
incidental effect on foreign relations." 389 U. S., at 459 (opinion concurring in
result) (citing cases); see id., at 462 (White, J., dissenting).10 Thus, for Justice
Harlan it was crucial that the challenge to the Oregon statute presented no
evidence of a "specific interest of the Federal Government which might be
interfered with" by the law. Id., at 459 (opinion concurring in result); see id., at
461 (finding "no evidence of adverse effect in the record"). He would,
however, have found preemption in a case of "conflicting federal policy," see

id., at 458-459, and on this point the majority and Justices Harlan and White
basically agreed: state laws "must give way if they impair the effective exercise
of the Nation's foreign policy," id., at 440 (opinion of the Court). See also Pink,
315 U. S., at 230-231 ("[S]tate law must yield when it is inconsistent with, or
impairs. .. the superior Federal policy evidenced by a treaty or international
compact or agreement"); id., at 240 (Frankfurter, J., concurring) (state law may
not be allowed to "interfer[e] with the conduct of our foreign relations by the
Executive").
26

It is a fair question whether respect for the executive foreign relations power
requires a categorical choice between the contrasting theories of field and
conflict preemption evident in the Zschernig opinions,11 but the question
requires no answer here. For even on Justice Harlan's view, the likelihood that
state legislation will produce something more than incidental effect in conflict
with express foreign policy of the National Government would require
preemption of the state law. And since on his view it is legislation within "areas
of . . . traditional competence" that gives a State any claim to prevail, 389 U. S.,
at 459, it would be reasonable to consider the strength of the state interest,
judged by standards of traditional practice, when deciding how serious a
conflict must be shown before declaring the state law preempted. Cf. Southern
Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 768-769 (1945) (under
negative Commerce Clause, "reconciliation of the conflicting claims of state
and national power is to be attained only by some appraisal and
accommodation of the competing demands of the state and national interests
involved"); Henkin, Foreign Affairs and the United States Constitution, at 164
(suggesting a test that "balance[s] the state's interest in a regulation against the
impact on U. S. foreign relations"); Maier, Preemption of State Law: A
Recommended Analysis, 83 Am. J. Int'l L. 832, 834 (1989) (similar). Judged by
these standards, we think petitioners and the Government have demonstrated a
sufficiently clear conflict to require finding preemption here.

IV
27

* To begin with, resolving Holocaust-era insurance claims that may be held by

residents of this country is a matter well within the Executive's responsibility
for foreign affairs. Since claims remaining in the aftermath of hostilities may be
"sources of friction" acting as an "impediment to resumption of friendly
relations" between the countries involved, Pink, supra, at 225, there is a
"longstanding practice" of the national Executive to settle them in discharging
its responsibility to maintain the Nation's relationships with other countries,
Dames & Moore, 453 U. S., at 679. The issue of restitution for Nazi crimes has
in fact been addressed in Executive Branch diplomacy and formalized in

treaties and executive agreements over the last half century, and although
resolution of private claims was postponed by the Cold War, securing private
interests is an express object of diplomacy today, just as it was addressed in
agreements soon after the Second World War. Vindicating victims injured by
acts and omissions of enemy corporations in wartime is thus within the
traditional subject matter of foreign policy in which national, not state, interests
are overriding, and which the National Government has addressed.
28

The exercise of the federal executive authority means that state law must give
way where, as here, there is evidence of clear conflict between the policies
adopted by the two. The foregoing account of negotiations toward the three
settlement agreements is enough to illustrate that the consistent Presidential
foreign policy has been to encourage European governments and companies to
volunteer settlement funds in preference to litigation or coercive sanctions. See
also, e. g., Hearings on H. R. 2693 before the Subcommittee of Government
Efficiency, Financial Management and Intergovernmental Relations of the
House Committee on Government Reform, 107th Cong., 2d Sess., 24 (2002)
(statement of Ambassador Randolph M. Bell that it is the "policy of the U. S.
Government" "to resolve matters of Holocaust-era restitution and compensation
through dialogue, negotiation, and co-operation"); Hearings on the Status of
Insurance Restitution for Holocaust Victims and the Heirs before the House
Committee on Government Reform, 107th Cong., 1st Sess., 77 (2001)
(statement of Ambassador J. D. Bindenagel to the same effect). As for
insurance claims in particular, the national position, expressed unmistakably in
the executive agreements signed by the President with Germany and Austria,
has been to encourage European insurers to work with the ICHEIC to develop
acceptable claim procedures, including procedures governing disclosure of
policy information. See German Foundation Agreement, 39 Int'l Legal
Materials, at 1299, 1303 (declaring the German Foundation to be the "exclusive
forum" for demands against German companies and agreeing to have insurance
claims resolved under procedures developed through negotiation with the
ICHEIC); Agreement Relating to the Agreement of October 24, 2000,
Concerning the Austrian Fund "Reconciliation, Peace and Cooperation," Jan.
23, 2001, 2001 WL 935261, Annex A, 2(n) (same for Austria). This position,
of which the agreements are exemplars, has also been consistently supported in
the high levels of the Executive Branch, as mentioned already, supra, at 411.
See also, e. g., Hearing before the Committee on House Banking and Financial
Services, 106th Cong., 2d Sess., 173 (2000) (Deputy Secretary Eizenstat
statement that "[t]he U. S. Government has supported [the ICHEIC] since it
began, and we believe it should be considered the exclusive remedy for
resolving insurance claims from the World War II era"); Hearings on H. R.
2693, at 24 (statement by Ambassador Bell to the same effect); Hearing on the

Legacies of the Holocaust before the Senate Committee on Foreign Relations,

106th Cong., 2d Sess., 23 (2000) (Eizenstat testimony that a company's
participation in the ICHEIC should give it "`safe haven' from sanctions,
subpoenas, and hearings relative to the Holocaust period").12 The approach
taken serves to resolve the several competing matters of national concern
apparent in the German Foundation Agreement: the national interest in
maintaining amicable relationships with current European allies; survivors'
interests in a "fair and prompt" but nonadversarial resolution of their claims so
as to "bring some measure of justice . . . in their lifetimes"; and the companies'
interest in securing "legal peace" when they settle claims in this fashion. 39 Int'l
Legal Materials, at 1304. As a way for dealing with insurance claims,
moreover, the voluntary scheme protects the companies' ability to abide by
their own countries' domestic privacy laws limiting disclosure of policy
information. See Brief for Federal Republic of Germany as Amicus Curiae 1213.13
29

California has taken a different tack of providing regulatory sanctions to

compel disclosure and payment, supplemented by a new cause of action for
Holocaust survivors if the other sanctions should fail. The situation created by
the California legislation calls to mind the impact of the Massachusetts Burma
law on the effective exercise of the President's power, as recounted in the
statutory preemption case, Crosby v. National Foreign Trade Council, 530 U.
S. 363 (2000). HVIRA's economic compulsion to make public disclosure, of far
more information about far more policies than ICHEIC rules require, employs
"a different, state system of economic pressure," and in doing so undercuts the
President's diplomatic discretion and the choice he has made exercising it. Id.,
at 376. Whereas the President's authority to provide for settling claims in
winding up international hostilities requires flexibility in wielding "the coercive
power of the national economy" as a tool of diplomacy, id., at 377, HVIRA
denies this, by making exclusion from a large sector of the American insurance
market the automatic sanction for noncompliance with the State's own policies
on disclosure. "Quite simply, if the [California] law is enforceable the
President has less to offer and less economic and diplomatic leverage as a
consequence." Ibid. (citing Dames & Moore, 453 U. S., at 673). The law thus
"compromise[s] the very capacity of the President to speak for the Nation with
one voice in dealing with other governments" to resolve claims against
European companies arising out of World War II. 530 U. S., at 381.14

30

Crosby's facts are replicated again in the way HVIRA threatens to frustrate the
operation of the particular mechanism the President has chosen. The letters
from Deputy Secretary Eizenstat to California officials show well enough how
the portent of further litigation and sanctions has in fact placed the Government

at a disadvantage in obtaining practical results from persuading "foreign

governments and foreign companies to participate voluntarily in organizations
such as ICHEIC." Brief for United States as Amicus Curiae 15; see also SER
1267, 1272 (Joint Statement with Switzerland noting the "potentially disruptive
and counterproductive effects" of laws like HVIRA and promising effort by the
United States to call on state legislatures "to refrain from taking unwarranted
investigative initiatives or from threatening or actually using sanctions against
Swiss insurers"). In addition to thwarting the Government's policy of repose for
companies that pay through the ICHEIC, California's indiscriminate disclosure
provisions place a handicap on the ICHEIC's effectiveness (and raise a further
irritant to the European allies) by undercutting European privacy protections.
See ER 1182, 3131 (opinions of the German Government that public disclosure
of all European insurance policies "is not permissible" under German privacy
law); Brief for United States as Amicus Curiae 18 (noting protests from the
German and Swiss Governments). It is true, of course, as it is probably true of
all elements of HVIRA, that the disclosure requirement's object of obtaining
compensation for Holocaust victims is a goal espoused by the National
Government as well. But "[t]he fact of a common end hardly neutralizes
conflicting means," Crosby, supra, at 379, and here HVIRA is an obstacle to
the success of the National Government's chosen "calibration of force" in
dealing with the Europeans using a voluntary approach, 530 U. S., at 380.
B
31

The express federal policy and the clear conflict raised by the state statute are
alone enough to require state law to yield. If any doubt about the clarity of the
conflict remained, however, it would have to be resolved in the National
Government's favor, given the weakness of the State's interest, against the
backdrop of traditional state legislative subject matter, in regulating disclosure
of European Holocaust-era insurance policies in the manner of HVIRA.

32

The commissioner would justify HVIRA's ambitious disclosure requirement as

protecting "legitimate consumer protection interests" in knowing which insurers
have failed to pay insurance claims. Brief for Respondent 1, 42-44. But, quite
unlike a generally applicable "blue sky" law, HVIRA effectively singles out
only policies issued by European companies, in Europe, to European residents,
at least 55 years ago. Cal. Ins. Code Ann. 13804(a) (West Cum. Supp. 2003);
see also 790.15(a) (mandating license suspension only for "fail[ure] to pay
any valid claim from Holocaust survivors"). Limiting the public disclosure
requirement to these policies raises great doubt that the purpose of the
California law is an evaluation of corporate reliability in contemporary insuring
in the State.

33

Indeed, there is no serious doubt that the state interest actually underlying
HVIRA is concern for the several thousand Holocaust survivors said to be
living in the State. 13801(d) (legislative finding that roughly 5,600
documented Holocaust survivors reside in California). But this fact does not
displace general standards for evaluating a State's claim to apply its forum law
to a particular controversy or transaction, under which the State's claim is not a
strong one. "Even if a plaintiff evidences his desire for forum law by moving to
the forum, we have generally accorded such a move little or no significance."
Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 820 (1985); see Allstate Ins.
Co. v. Hague, 449 U. S. 302, 311 (1981) ("[A] postoccurrence change of
residence to the forum Statestanding alone[i]s insufficient to justify
application of forum law").

34

But should the general standard not be displaced, and the State's interest
recognized as a powerful one, by virtue of the fact that California seeks to
vindicate the claims of Holocaust survivors? The answer lies in recalling that
the very same objective dignifies the interest of the National Government in
devising its chosen mechanism for voluntary settlements, there being about
100,000 survivors in the country, only a small fraction of them in California.
ER 870 (press release of insurance commissioner of California); Bazyler, 34
Rich. L. Rev., at 8, n. 11. As against the responsibility of the United States of
America, the humanity underlying the state statute could not give the State the
benefit of any doubt in resolving the conflict with national policy.

C
35

The basic fact is that California seeks to use an iron fist where the President has
consistently chosen kid gloves. We have heard powerful arguments that the
iron fist would work better, and it may be that if the matter of compensation
were considered in isolation from all other issues involving the European
Allies, the iron fist would be the preferable policy. But our thoughts on the
efficacy of the one approach versus the other are beside the point, since our
business is not to judge the wisdom of the National Government's policy;
dissatisfaction should be addressed to the President or, perhaps, Congress. The
question relevant to preemption in this case is conflict, and the evidence here is
"more than sufficient to demonstrate that the state Act stands in the way of [the
President's] diplomatic objectives." Crosby, supra, at 386.

V
36

The State's remaining submission is that even if HVIRA does interfere with
Executive Branch foreign policy, Congress authorized state law of this sort in

the McCarran-Ferguson Act, 59 Stat. 33, ch. 20, 15 U. S. C. 1011-1015, and

the more recent U. S. Holocaust Assets Commission Act of 1998 (Holocaust
Commission Act), 112 Stat. 611, note following 22 U. S. C. 1621. There is,
however, no need to consider the possible significance for preemption doctrine
of tension between an Act of Congress and Presidential foreign policy, cf.
generally Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S., at 637-638
(Jackson, J., concurring in judgment and opinion of Court), for neither statute
does the job the commissioner ascribes to it.
37

The provisions of the McCarran-Ferguson Act said to be relevant here specify

that "[t]he business of insurance" shall be recognized as a subject of state
regulation, 15 U. S. C. 1012(a), which will be good against preemption by
federal legislation unless that legislation "specifically relates to the business of
insurance," 1012(b); see also 1011 (policy behind 1012 is that "continued
regulation and taxation by the several States of the business of insurance is in
the public interest" and "silence on the part of the Congress shall not be
construed to impose any barrier to the regulation or taxation of such business by
the several States"). As the text itself makes clear, the point of McCarranFerguson's legislative choice of leaving insurance regulation generally to the
States was to limit congressional preemption under the commerce power,
whether dormant or exercised. Compare Prudential Ins. Co. v. Benjamin, 328
U. S. 408, 429-430 (1946), with United States v. South-Eastern Underwriters
Assn., 322 U. S. 533 (1944); see Department of Treasury v. Fabe, 508 U. S.
491, 499-500 (1993). Quite apart, then, from any doubt whether HVIRA would
qualify as regulating "the business of insurance" given its tangential relation to
present-day insuring in the State, see FTC v. Travelers Health Assn., 362 U. S.
293, 300-301 (1960) (McCarran-Ferguson was not intended to allow a State to
"regulate activities carried on beyond its own borders"), a federal statute
directed to implied preemption by domestic commerce legislation cannot
sensibly be construed to address preemption by executive conduct in foreign
affairs.

38

Nor does the Holocaust Commission Act authorize HVIRA. That Act set up a
Presidential Commission to "study and develop a historical record of the
collection and disposition" of Holocaust-era assets that "came into the
possession or control of the Federal Government." Pub. L. 105-186, 3(a)(1),
112 Stat. 612. For this purpose, Congress directed the Commission to
"encourage the National Association of Insurance Commissioners to prepare a
report on the Holocaust-related claims practices of all insurance companies,
both domestic and foreign, doing business in the United States at any time after
January 30, 1933, that issued any individual life, health, or property-casualty
insurance policy to any individual on any list of Holocaust victims." 3(a)(4)

(A), 112 Stat. 613. These provisions are no help to HVIRA. The Commission's
focus was limited to assets in the possession of the Government, and if
anything, the federal Act assumed it was the National Government's
responsibility to deal with returning those assets. See 3(d), 112 Stat. 614
(President to collect recommendations from the commission and submit a
suggested plan for "legislative, administrative, or other action" to Congress). In
any event, the federal Act's reference to the state insurance commissioners as
compiling information was expressly limited "to the degree the information is
available," 3(a)(4)(B), 112 Stat. 613, a proviso that can hardly be read to
condone state sanctions interfering with federal efforts to resolve such claims.
39

Indeed, it is worth noting that Congress has done nothing to express

disapproval of the President's policy. Legislation along the lines of HVIRA has
been introduced in Congress repeatedly, but none of the bills has come close to
making it into law. See H. R. 1210, 108th Cong., 1st Sess. (2003); S. 972,
108th Cong., 1st Sess. (2003); H. R. 2693, 107th Cong., 1st Sess. (2001); H. R.
126, 106th Cong., 1st Sess. (1999).

40

In sum, Congress has not acted on the matter addressed here. Given the
President's independent authority "in the areas of foreign policy and national
security,... congressional silence is not to be equated with congressional
disapproval." Haig v. Agee, 453 U. S. 280, 291 (1981).

VI
41

The judgment of the Court of Appeals for the Ninth Circuit is reversed.

42

So ordered.

Notes:
*

Briefs ofamici curiae urging reversal were filed for the Chamber of Commerce
of the United States et al. by Kim Heebner Price and Robin S. Conrad; for the
Federal Republic of Germany by Roger M. Witten; for the Government of
Switzerland by Stephan E. Becker; and for Mitsubishi Materials Corp. et al. by
Walter Dellinger, John H. Beisner, David M. Balabanian, Margaret K. Pfeiffer,
Arne D. Wagner, and Paul J. Hall.
Briefs of amici curiae urging affirmance were filed for the State of California
et al. by Bill Lockyer, Attorney General of California, Manuel Medeiros, State

Solicitor General, Richard M. Frank, Chief Assistant Attorney General, J.

Matthew Rodriquez, Senior Assistant Attorney General, and Daniel L. Siegel,
Supervising Deputy Attorney General, and by the Attorneys General for their
respective jurisdictions as follows: William H. Pryor, Jr., of Alabama, G.
Steven Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of
Massachusetts, Mike Hatch of Minnesota, Brian Sandoval of Nevada, Peter C.
Harvey of New Jersey, Eliot Spitzer of New York, Jim Petro of Ohio, Anabelle
Rodrguez of Puerto Rico, Greg Abbott of Texas, and Christine O. Gregoire of
Washington; for Bet Tzedek Legal Services et al. by Gregory R. Smith,
Elizabeth K. Penfil, David A. Lash, and Martin Mendelsohn; for the National
Association of Insurance Commissioners by Ross S. Myers; and for
Representative Henry A. Waxman et al. by Kenneth Chesebro.
1

A vivid precursor of the kind of direct confiscation that would become

widespread by 1941 was the Reich's seizure of property and casualty insurance
proceeds in the aftermath of the November 1938 Kristallnacht, in which Nazi
looting and vandalism inflicted damage to Jewish businesses, homes, and
synagogues worth nearly 50 million deutsch marks. Days afterward, a Reich
decree mandated that all proceeds of all insurance claims arising from the
damage be paid directly to the state treasury, an obligation ultimately settled by
German insurance companies with the Reich at a mere pittance relative to full
value. See Feldman, Allianz and the German Insurance Business, at 190-235

The executive agreement was accompanied by a joint statement signed by the

American and German Governments, the Governments of Israel and five
Eastern European countries, and the Conference on Jewish Material Claims
Against Germany, Inc., "[r]ecognizing that it would be in the participants'
interests for the Foundation to be the exclusive remedy and forum" for all
Holocaust-era claims against German companies. Excerpt of Record in No. 0117023 (CA9) (ER), pp. 812-816

Agreement Between the Government of the United States of America and the
Government of France Concerning Payments for Certain Losses Suffered
During World War II, Jan. 18, 2001, 2001 WL 416465; Agreement between the
Austrian Federal Government and the Government of the United States of
America Concerning the Austrian Fund "Reconciliation, Peace and
Cooperation," 40 Int'l Legal Materials 523 (2001); Agreement Relating to the
Agreement of October 24, 2000, Concerning the Austrian Fund
"Reconciliation, Peace and Cooperation," Jan. 23, 2001, 2001 WL 935261,
Annex A, 2(n). Though the French agreement does not address insurance, the
agreement with Austria does. Austria agreed to devote a $25 million fund for
payment of claims processed according to the ICHEIC's procedures. Seeibid.
Austria also agreed to "make the lists of Holocaust era policy holders publicly

accessible, to the extent available." Ibid. The United States Government agreed,
in turn, that the settlement fund should be viewed as "the exclusive . . . forum"
for the resolution of Holocaust-era claims asserted against the Austrian
Government or Austrian companies. 40 Int'l Legal Materials, at 524.
4

Challenges to Cal. Civ. Proc. Code Ann. 354.5 (West Cum. Supp. 2003) and
Cal. Ins. Code Ann. 790.15 (West Cum. Supp. 2003) were dismissed by the
District Court for lack of standing, a ruling that was not appealed. SeeGerling
Global Reinsurance Corp. of America v. Low, 240 F. 3d 739, 742-743 (CA9
2001).

These terms are further defined in the commissioner's regulations. Cal. Code
Regs., Tit. 10, 2278.1 (1996). An "affiliate" company is one that "directly, or
indirectly, through one or more intermediaries, controls, or is controlled by, or
is under common control with, the [insurer]." Cal. Ins. Code Ann. 1215(a)
(West 1993) (cross-referenced in 2278.1(e)). A "[m]anaging [g]eneral
[a]gent" is a company that "negotiates and binds ceding reinsurance contracts
on behalf of an insurer or manages all or part of the insurance business of an
insurer." 769.819(c) (cross-referenced in 2278.1(c)). A "reinsurer" is "a
parent, subsidiary or affiliate of the insurer that provides reinsurance." Cal.
Code Regs., Tit. 10, 2278.1(i) (1996)

Several other States have passed laws similar to HVIRA. See Holocaust
Victims Insurance Act, Fla. Stat. 626.9543 (Cum. Supp. 2003); Holocaust
Victims Insurance Act, Md. Ins. Code Ann. 28-101 to 28-110 (2002);
Holocaust Victims Insurance Relief Act of 2000, Minn. Stat. 60A.053 (Cum.
Supp. 2003); Holocaust Victims Insurance Act of 1998, N. Y. Ins. Law
2701-2711 (Consol. 2000); Holocaust Victims Insurance Relief Act of 1999,
Wash. Rev. Code 48.104.010-48.104.903 (2003); see also Ariz. Rev. Stat.
Ann. 20-490 (West Cum. Supp. 2003); Tex. Ins. Code Ann., Art. 21.74
(Vernon 2003). And similar bills have been proposed in other States. See,e. g.,
Mass. Senate Bill No. 843 (Jan. 1, 2003).

Two petitions for certiorari were filed, one by the petitioners in this case (No.
02-722), and one, raising additional issues, by the Gerling Companies (No. 02733), which were also appellees below. Our grant of certiorari in No. 02-722
encompassed three of the questions addressed by the Ninth Circuit: whether
HVIRA intrudes on the federal foreign affairs power, violates the selfexecuting element of the Foreign Commerce Clause, or exceeds the State's
"legislative jurisdiction." Pet. for Cert. I. Because we hold that HVIRA is
preempted under the foreign affairs doctrine, we have no reason to address the
other questions

The Yalta and Potsdam Agreements envisioning dismantling of Germany's

industrial assets, public and private, and the followup Paris Agreement aspiring
to settle the claims of western nationals against the German Government and
private agencies were made as executive agreements. Seesupra, at 403 (citing
agreements); see also L. Margolis, Executive Agreements and Presidential
Power in Foreign Policy 15-16 (1986).

Subject, that is, to the Constitution's guarantees of individual rights. SeeReid v.

Covert, 354 U. S. 1, 15-19 (1957); Boos v. Barry, 485 U. S. 312, 324 (1988).
Even Justice Sutherland's reading of the National Government's "inherent"
foreign affairs power in United States v. Curtiss-Wright Export Corp., 299 U.
S. 304 (1936), contained the caveat that the power, "like every other
governmental power, must be exercised in subordination to the applicable
provisions of the Constitution." Id., at 320.

10

Justice Harlan concurred in the majority's result because he would have found
the Oregon statute preempted by a 1923 treaty with Germany. 389 U. S., at
457. This required overruling the Court's construction of that treaty inClark v.
Allen, 331 U. S. 503 (1947), which Justice White, in dissent, declined to do,
389 U. S., at 462.

11

The two positions can be seen as complementary. If a State were simply to take
a position on a matter of foreign policy with no serious claim to be addressing a
traditional state responsibility, field preemption might be the appropriate
doctrine, whether the National Government had acted and, if it had, without
reference to the degree of any conflict, the principle having been established
that the Constitution entrusts foreign policy exclusively to the National
Government. See,e. g., Hines v. Davidowitz, 312 U. S. 52, 63 (1941). Where,
however, a State has acted within what Justice Harlan called its "traditional
competence," 389 U. S., at 459, but in a way that affects foreign relations, it
might make good sense to require a conflict, of a clarity or substantiality that
would vary with the strength or the traditional importance of the state concern
asserted. Whether the strength of the federal foreign policy interest should itself
be weighed is, of course, a further question. Cf. Rice v. Santa Fe Elevator
Corp., 331 U. S. 218, 230 (1947) (congressional occupation of the field is not
to be presumed "in a field which the States have traditionally occupied"); Boyle
v. United Technologies Corp., 487 U. S. 500, 507-508 (1988) ("In an area of
uniquely federal interest," "[t]he conflict with federal policy need not be as
sharp as that which must exist for ordinary pre-emption").

12

InBarclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U. S. 298, 328-330
(1994), we declined to give policy statements by Executive Branch officials
conclusive weight as against an opposing congressional policy in determining

whether California's "worldwide combined reporting" tax method violated the

Foreign Commerce Clause. The reason, we said, is that "[t]he Constitution
expressly grants Congress, not the President, the power to `regulate Commerce
with foreign Nations.'" Id., at 329 (quoting Art. I, 8, cl. 3). As we have
discussed, however, in the field of foreign policy the President has the "lead
role." First Nat. City Bank v. Banco Nacional de Cuba, 406 U. S. 759, 767
(1972).
13

The dissent would discount the executive agreements as evidence of the

Government's foreign policy governing disclosure, saying they "do not refer to
state disclosure laws specifically, or even to information disclosure
generally."Post, at 441 (opinion of GINSBURG, J.). But this assertion gives
short shrift to the agreements' express endorsement of the ICHEIC's voluntary
mechanism, which encompasses production of policy information, not just
actual payment of unpaid claims. See supra, at 406-407. The dissent would also
dismiss the other Executive Branch expressions of the Government's policy, see
supra, at 411, 422, insisting on nothing short of a formal statement by the
President himself, see post, at 441-443. But there is no suggestion that these
high-level executive officials were not faithfully representing the President's
chosen policy, and there is no apparent reason for adopting the dissent's
"nondelegation" rule to apply within the Executive Branch.

14

It is true that the President in this case is acting without express congressional
authority, and thus does not have the "plenitude of Executive authority" that
"controll[ed] the issue of preemption" inCrosby v. National Foreign Trade
Council, 530 U. S. 363, 376 (2000). But in Crosby we were careful to note that
the President possesses considerable independent constitutional authority to act
on behalf of the United States on international issues, id., at 381, and conflict
with the exercise of that authority is a comparably good reason to find
preemption of state law.
JUSTICE GINSBURG, with whom JUSTICE STEVENS, JUSTICE SCALIA,
and JUSTICE THOMAS join, dissenting.
Responding to Holocaust victims' and their descendents' long-frustrated efforts
to collect unpaid insurance proceeds, California's Holocaust Victim Insurance
Relief Act of 1999 (HVIRA), Cal. Ins. Code Ann. 13800 et seq. (West Cum.
Supp. 2003), requires insurance companies operating in the State to disclose
certain information about insurance policies they or their affiliates wrote in
Europe between 1920 and 1945. In recent years, the Executive Branch of the
Federal Government has become more visible in this area, undertaking foreign
policy initiatives aimed at resolving Holocaustera insurance claims. Although
the federal approach differs from California's, no executive agreement or other

formal expression of foreign policy disapproves state disclosure laws like the
HVIRA. Absent a clear statement aimed at disclosure requirements by the "one
voice" to which courts properly defer in matters of foreign affairs, I would leave
intact California's enactment.
*

As the Court observes,ante, at 401-402, and n. 1, the Nazi regimentation of

inhumanity we characterize as the Holocaust, marked most horrifically by
genocide and enslavement, also entailed widespread destruction, confiscation,
and theft of property belonging to Jews. For insurance policies issued in
Germany and other countries under Nazi control, historical evidence bears out,
the combined forces of the German Government and the insurance industry
engaged in larcenous takings of gigantic proportions. For example, insurance
policies covered many of the Jewish homes and businesses destroyed in the
state-sponsored pogrom known as Kristallnacht. By order of the Nazi regime,
claims arising out of the officially enabled destruction were made payable not
to the insured parties, but to the State. M. Bazyler, Holocaust Justice: The
Battle for Restitution in America's Courts 114 (2003). In what one historian
called a "charade concocted by insurers and ministerial officials," insurers
satisfied property loss claims by paying the State only a fraction of their full
value. G. Feldman, Allianz and the German Insurance Business, 1933-1945, p.
227 (2001); see Bazyler, supra, at 114; App. 27-28 (declaration of Rabbi
Abraham Cooper, Assoc. Dean, Simon Wiesenthal Center) ("There is
documentary evidence that the insurance companies paid only one-half of the
Jewish insurance proceeds to the Reich and kept the other half for
themselves.").
The Court depicts Allied diplomacy after World War II as aimed in part at
settling confiscated and unpaid insurance claims. Ante, at 403. But the
multilateral negotiations that produced the Potsdam, Yalta, and like accords
failed to achieve any global resolution of such claims. European insurers,
encountering no official compulsion, were themselves scarcely inclined to settle
claims; turning claimants away, they relied on the absence of formal
documentation and other technical infirmities that legions of Holocaust
survivors were in no position to remedy. See, e. g., Hearings on H. R. 2693
before the Subcommittee on Government Efficiency, Financial Management
and Intergovernmental Relations of the House Committee on Government
Reform, 107th Cong., 2d Sess., 14-15 (2002) (statement of Rep. Waxman)
("Some survivors were rejected because they could not produce death
certificates for loved ones who perished in Nazi concentration camps. Other
insurance companies took advantage of the fact that claimants had no policy
documents to prove their policy existed."). For over five decades, untold
Holocaust-era insurance claims went unpaid. Id., at 38 (statement of Leslie

Tick, California Dept. of Insurance).

In the late 1990's, litigation in American courts provided a spur to action. See
Bazyler, supra, at xi; Feldman, supra, at vii; Neuborne, Preliminary Reflections
on Aspects of Holocaust-Era Litigation in American Courts, 80 Wash. U. L. Q.
795, 796 (2002). Holocaust survivors and their descendents initiated classaction suits against German and other European firms seeking compensation
for, inter alia, the confiscation of Jewish bank assets, the use of Jewish slave
labor, and the failure to pay Jewish insurance claims. See generally Bazyler,
supra, at 1-171.
In the insurance industry, the litigation propelled a number of European
companies to agree on a framework for resolving unpaid claims outside the
courts. This concord prompted the 1998 creation of the International
Commission on Holocaust Era Insurance Claims (ICHEIC). A voluntary claims
settlement organization, ICHEIC comprises several European insurers, Jewish
and Holocaust survivor organizations, the State of Israel, and this country's
National Association of Insurance Commissioners. See S. Eizenstat, Imperfect
Justice 266 (2003); Bazyler, supra, at 132.
As the Court observes, ante, at 407, ICHEIC has formulated procedures for the
filing, investigation, valuation, and resolution of Holocaust-era insurance
claims. At least until very recently, however, ICHEIC's progress has been slow
and insecure. See In re Assicurazioni Generali S. p. A. Holocaust Ins. Litig.,
228 F. Supp. 2d 348, 358 (SDNY 2002) (quoting a 2001 press account
describing ICHEIC as having "repeatedly been at the point of collapse since its
inception in 1998"). Initially, ICHEIC's insurance company members
represented little more than one-third of the Holocaust-era insurance market.
See App. 32 (declaration of Leslie Tick, California Dept. of Insurance) ("The
five insurance company members of the ICHEIC represent approximately
35.5% of the pre-World War II European insurance market."); Eizenstat, supra,
at 268 (despite repeated assurances that all German insurance companies would
join ICHEIC, "[t]hey never have to this day"). Petitioners note that participation
in ICHEIC has expanded in the past year, see Reply Brief 8-9, but it remains
unclear whether ICHEIC does now or will ever encompass all relevant insurers.
Moreover, ICHEIC has thus far settled only a tiny proportion of the claims it
has received. See Eizenstat, supra, at 267 ("ICHEIC's administrative failings
led to few claims paid and large costs."). Evidence submitted in a series of class
actions filed against Italian insurer Generali indicated that by November 2001,
ICHEIC had resolved only 797 of 77,000 claims. See In re Assicurazioni
Generali, 228 F. Supp. 2d, at 357. The latest reports show only modest

increases. See Treaster, Holocaust List Is Unsealed by Insurers, N. Y. Times,

Apr. 29, 2003, section A, p. 26, col. 6 ("In more than four years of operation
[ICHEIC] has offered $38.2 million or just short of the $40 million it had
spent on expenses as of 18 months agoto 3,006 claimants.").
Finally, although ICHEIC has directed its members to publish lists of unpaid
Holocaust-era policies, that nonbinding directive had not yielded significant
compliance at the time this case reached the Court. See Brief for Respondent
10; Bazyler, Holocaust Justice, at 132 ("Using the ICHEIC process, the
European insurers have been able to ... avoid revealing the names of possible
claim holders."). Shortly after oral argument, ICHEIC-participating German
insurers made more substantial disclosures. See N. Y. Times, supra, at 26 (list
of 363,232 names published in April 2003). But other insurers have been less
forthcoming. For a prime example, Generaliwhich may have sold more life
insurance and annuity policies in Eastern Europe during the Holocaust than any
other company, see Bazyler, supra, at 113reportedly maintains a 340,000name list of persons to whom it sold insurance between 1918 and 1945, but has
refused to disclose the bulk of the information on the list. See App. 37-38
(declaration of Leslie Tick, California Dept. of Insurance); Brief for
Respondent 5.
II
*

California's disclosure law, the HVIRA, was enacted a year after ICHEIC's
formation. Observing that at least 5,600 documented Holocaust survivors reside
in California, Cal. Ins. Code Ann. 13801(d) (West Cum. Supp. 2003), the
HVIRA declares that "[i]nsurance companies doing business in the State of
California have a responsibility to ensure that any involvement they or their
related companies may have had with insurance policies of Holocaust victims
[is] disclosed to the state," 13801(e). The HVIRA accordingly requires
insurance companies doing business in California to disclose information
concerning insurance policies they or their affiliates sold in Europe between
1920 and 1945, 13804(a), and directs California's Insurance Commissioner to
store the information in a publicly accessible "Holocaust Era Insurance
Registry," 13803. The Commissioner is further directed to suspend the
license of any insurer that fails to comply with the HVIRA's reporting
requirements. 13806
These measures, the HVIRA declares, are "necessary to protect the claims and
interests of California residents, as well as to encourage the development of a
resolution to these issues through the international process or through direct
action by the State of California, as necessary." 13801(f). Information

published in the HVIRA's registry could, for example, reveal to a Holocaust

survivor residing in California the existence of a viable claim, which she could
then present to ICHEIC for resolution.1
The Court refers, ante, at 408-409, 426, to a number of other California
statutory provisions enabling the litigation of Holocaust-era insurance claims in
California courts. Those provisions, it bears emphasis, are not at issue here.
The HVIRA imposes no duty to pay any claim, nor does it authorize litigation
on any claim. It mandates only information disclosure, and our assessment of
the HVIRA is properly confined to that requirement alone.
B

The Federal Government, after prolonged inaction, has responded to the

Holocaust-era insurance issue by diplomatic means. Executive agreements with
Germany, Austria, and France, the Court observes, are the principal
expressions of the federal approach. Ante, at 413. Signed in July 2000, the
German Foundation Agreement establishes a voluntary foundation, funded by
public and private sources, to address Holocaust-era claims. Agreement
Concerning the Foundation "Remembrance, Responsibility and the Future," 39
Int'l Legal Materials 1298 (2000).2"[I]t would be in the interests of both
parties," the agreement declares, "for the Foundation to be the exclusive
remedy and forum for addressing . . . all claims that have been or may be
asserted against German companies arising from the National Socialist era and
World War II." Id., at 1299. In the case of insurance, the agreement endorses
ICHEIC as the appropriate forum for claims resolution. Ibid.
The German Foundation Agreement commits the Federal Government to
certain conduct. It provides, for example, that when a German company is sued
in a United States court on a Holocaust-era claim, the Federal Government will
file with the court a statement that "the President of the United States has
concluded that it would be in the foreign policy interests of the United States
for the [German] Foundation to be the exclusive forum and remedy for the
resolution of all asserted claims against German companies arising from their
involvement in the National Socialist era and World War II." Id., at 1303. The
agreement also provides that "[t]he United States will recommend dismissal on
any valid legal ground (which, under the U. S. system of jurisprudence, will be
for the U. S. courts to determine)." Ibid. The agreement makes clear, however,
that "[t]he United States does not suggest that its policy interests concerning the
Foundation in themselves provide an independent legal basis for dismissal." Id.,
at 1304.
III

The President's primacy in foreign affairs, I agree with the Court, empowers
him to conclude executive agreements with other countriesAnte, at 415. Our
cases do not catalog the subject matter meet for executive agreement, 3but we
have repeatedly acknowledged the President's authority to make such
agreements to settle international claims. Ante, at 415-416. And in settling such
claims, we have recognized, an executive agreement may preempt otherwise
permissible state laws or litigation. Ante, at 416-417. The executive agreements
to which we have accorded preemptive effect, however, warrant closer
inspection than the Court today endeavors.
In United States v. Belmont, 301 U. S. 324 (1937), the Court addressed the
Litvinov Assignment, an executive agreement incidental to the United States'
recognition of the Soviet Union. Under the terms of the agreement, the Soviet
Union assigned to the United States all its claims against American nationals,
including claims against New York banks holding accounts of Russian
nationals that the Soviet Government had earlier nationalized. The Federal
Government sued to recover the accounts thus assigned to it. Applying New
York law, the lower courts refused to enforce the assignment; those courts held
that the account-nationalization upon which the assignment rested contravened
public policy. Id., at 325-327. This Court reversed, concluding that "no state
policy can prevail against the international compact here involved." Id., at 327.
The Litvinov Assignment clearly assigned to the United States the claims in
issue; the enforceability of that assignment, the Court stressed, "is not and
cannot be subject to any curtailment or interference on the part of the several
states." Id., at 331.
United States v. Pink, 315 U. S. 203 (1942), again addressed state-imposed
obstacles to the Litvinov Assignment. Reiterating its holding in Belmont, the
Court confirmed that no State may "deny enforcement of a claim under the
Litvinov Assignment because of an overriding policy of the State." 315 U. S.,
at 222. Pointing both to the assignment itself and to a later exchange of
diplomatic correspondence clarifying its scope, see id., at 224-225, and n. 7, the
Court saw no "serious doubt that claims of the kind here in question were
included" in the "broad and inclusive" assignment, id., at 224.
Four decades later, in Dames & Moore v. Regan, 453 U. S. 654 (1981), the
Court gave effect to an executive agreement arising out of the Iran hostage
crisis. One of the agreement's announced "purpose[s]" was "to terminate all
litigation as between the Government of each party and the nationals of the
other, and to bring about the settlement and termination of all such claims
through binding arbitration." Id., at 665 (quoting the agreement). The

agreement called for the formation of an Iran-United States Claims Tribunal to

arbitrate claims not settled within six months. Ibid. In addition, under the
agreement the United States undertook "to terminate all legal proceedings in
United States courts involving claims of United States persons and institutions
against Iran and its state enterprises, to nullify all attachments and judgments
obtained therein, to prohibit all further litigation based on such claims, and to
bring about the termination of such claims through binding arbitration." Ibid.
(internal quotation marks omitted).
In line with these firm commitments, the Court held that the agreement and the
executive order implementing it validly "suspended" litigation in United States
courts against Iranian interests. See id., at 686-688.
Notably, the Court in Dames & Moore was emphatic about the "narrowness" of
its decision. Id., at 688. "We do not decide," the Court cautioned, "that the
President possesses plenary power to settle claims, even as against foreign
governmental entities." Ibid. Before sustaining the President's action, the Court
determined: (1) Congress "had implicitly approved" the practice of claim
settlement by executive agreement, id., at 680; (2) the alternative forum created
under the executive agreement was "capable of providing meaningful relief,"
id., at 687; (3) Congress had not in any way disapproved or resisted the
President's action, id., at 687-688; and (4) the settlement of claims was "a
necessary incident to the resolution of a major foreign policy dispute between
our country and another," id., at 688.
Together, Belmont, Pink, and Dames & Moore confirm that executive
agreements directed at claims settlement may sometimes preempt state law.
The Court states that if the executive "agreements here had expressly
preempted laws like HVIRA, the issue would be straightforward." Ante, at 416417. One can safely demur to that statement, for, as the Court acknowledges, no
executive agreement before us expressly preempts the HVIRA. Ante, at 417.
Indeed, no agreement so much as mentions the HVIRA's sole concern: public
disclosure.
B

Despite the absence of express preemption, the Court holds that the HVIRA
interferes with foreign policy objectives implicit in the executive agreements.
See ibid. I would not venture down that path.
The Court's analysis draws substantially on Zschernig v. Miller, 389 U. S. 429
(1968). In that case, the Oregon courts had applied an Oregon escheat statute to
deny an inheritance to a resident of a Communist bloc country. The Oregon

courts so ruled because the claimant failed to satisfy them that his country's
laws would allow U. S. nationals to inherit estates, nor had the claimant shown
he would actually receive payments from the Oregon estate with no
confiscation by his home government. Id., at 432. Applying Oregon's statutory
conditions, the Court concluded, required Oregon courts to "launc[h] inquiries
into the type of governments that obtain in particular foreign nations," id., at
434, rendering "unavoidable judicial criticism of nations established on a more
authoritarian basis than our own," id., at 440. Such criticism had a "direct
impact upon foreign relations," the Court said, id., at 441, and threatened to
"impair the effective exercise of the Nation's foreign policy," id., at 440. The
Court therefore held the statute unconstitutional as applied in that case. Id., at
433-434. But see id., at 432 ("We do not accept the invitation to re-examine our
ruling in Clark v. Allen [331 U. S. 503 (1947)]," which held a substantively
similar California statute facially constitutional.).
We have not relied on Zschernig since it was decided, and I would not resurrect
that decision here. The notion of "dormant foreign affairs preemption" with
which Zschernig is associated resonates most audibly when a state action
"reflect[s] a state policy critical of foreign governments and involve[s] `sitting
in judgment' on them." L. Henkin, Foreign Affairs and the United States
Constitution 164 (2d ed. 1996); see Constitutionality of South African
Divestment Statutes Enacted by State and Local Governments, 10 Op. Off.
Legal Counsel 49, 50 (1986) ("[W]e believe that [Zschernig] represents the
Court's reaction to a particular regulatory statute, the operation of which
intruded extraordinarily deeply into foreign affairs."). The HVIRA entails no
such state action or policy. It takes no position on any contemporary foreign
government and requires no assessment of any existing foreign regime. It is
directed solely at private insurers doing business in California, and it requires
them solely to disclose information in their or their affiliates' possession or
control. I would not extend Zschernig into this dissimilar domain.4
Neither would I stretch Belmont, Pink, or Dames & Moore to support implied
preemption by executive agreement. In each of those cases, the Court gave
effect to the express terms of an executive agreement. In Dames & Moore, for
example, the Court addressed an agreement explicitly extinguishing certain
suits in domestic courts. 453 U. S., at 665; see supra, at 437-438. Here,
however, none of the executive agreements extinguish any underlying claim for
relief. See Neuborne, 80 Wash. U. L. Q., at 824, n. 101. The United States has
agreed to file precatory statements advising courts that dismissing Holocaustera claims accords with American foreign policy, but the German Foundation
Agreement confirms that such statements have no legally binding effect. See 39
Int'l Legal Materials, at 1304; supra, at 436. It remains uncertain, therefore,

whether even litigation on Holocaust-era insurance claims must be abated in

deference to the German Foundation Agreement or the parallel agreements with
Austria and France. Indeed, ambiguity on this point appears to have been the
studied aim of the American negotiating team. See Eizenstat, Imperfect Justice,
at 272-273 (describing the "double negative" that satisfied German negotiators
and preserved the flexibility sought by Justice Department litigators).
If it is uncertain whether insurance litigation may continue given the executive
agreements on which the Court relies, it should be abundantly clear that those
agreements leave disclosure laws like the HVIRA untouched. The contrast with
the Litvinov Assignment at issue in Belmont and Pink is marked. That
agreement spoke directly to claim assignment in no uncertain terms; Belmont
and Pink confirmed that state law could not invalidate the very assignments
accomplished by the agreement. See supra, at 436-437. Here, the Court
invalidates a state disclosure law on grounds of conflict with foreign policy
"embod[ied]" in certain executive agreements, ante, at 417, although those
agreements do not refer to state disclosure laws specifically, or even to
information disclosure generally.5It therefore is surely an exaggeration to assert
that the "HVIRA threatens to frustrate the operation of the particular
mechanism the President has chosen" to resolve Holocaust-era claims. Ante, at
424. If that were so, one might expect to find some reference to laws like the
HVIRA in the later-in-time executive agreements. There is none.
To fill the agreements' silences, the Court points to statements by individual
members of the Executive Branch. See ante, at 411 (letters from Deputy
Secretary of the Treasury Stuart Eizenstat to California Governor Gray Davis
and the Insurance Commissioner of California); ante, at 422 (testimony before
Congress by Eizenstat, stating that a company's participation in ICHEIC should
give it "safe haven from sanctions, subpoenas, and hearings relative to the
Holocaust period" (internal quotation marks omitted)). But we have never
premised foreign affairs preemption on statements of that order. Cf. Barclays
Bank PLC v. Franchise Tax Bd. of Cal., 512 U. S. 298, 329-330 (1994)
("Executive Branch actionspress releases, letters, and amicus briefs"that
"express federal policy but lack the force of law" cannot render a state law
unconstitutional under the Foreign Commerce Clause.). We should not do so
here lest we place the considerable power of foreign affairs preemption in the
hands of individual sub-Cabinet members of the Executive Branch. Executive
officials of any rank may of course be expected "faithfully [to] represen[t] the
President's chosen policy," ante, at 423, n. 13, but no authoritative text accords
such officials the power to invalidate state law simply by conveying the
Executive's views on matters of federal policy. The displacement of state law by
preemption properly requires a considerably more formal and binding federal

instrument.
Sustaining the HVIRA would not compromise the President's ability to speak
with one voice for the Nation. See ante, at 424. To the contrary, by declining to
invalidate the HVIRA in this case, we would reserve foreign affairs preemption
for circumstances where the President, acting under statutory or constitutional
authority, has spoken clearly to the issue at hand. "[T]he Framers did not make
the judiciary the overseer of our government." Dames & Moore, 453 U. S., at
660 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 594
(1952) (Frankfurter, J., concurring)). And judges should not be the expositors
of the Nation's foreign policy, which is the role they play by acting when the
President himself has not taken a clear stand. As I see it, courts step out of their
proper role when they rely on no legislative or even executive text, but only on
inference and implication, to preempt state laws on foreign affairs grounds.
In sum, assuming, arguendo, that an executive agreement or similarly formal
foreign policy statement targeting disclosure could override the HVIRA, there
is no such declaration here. Accordingly, I would leave California's enactment
in place, and affirm the judgment of the Court of Appeals.
Notes:
1

In addition, California may deem an insurer's or its affiliate's continuing failure

to resolve Holocaust-era claims relevant marketplace information for California
consumers. See Brief for Respondent 42-44; Brief for National Association of
Insurance Commissioners asAmicus Curiae 11-13. The Court discounts the
HVIRA's pursuit of this objective, stressing that the HVIRA covers only certain
policies issued in Europe more than 50 years ago. Ante, at 425-426. But States
have broad authority to regulate the insurance industry, Western & Southern
Life Ins. Co. v.State Bd. of Equalization of Cal., 451 U. S. 648, 653-655 (1981),
and a State does not exceed that authority by assigning special significance to
an insurer's treatment of claims arising out of an era in which government and
industry collaborated to rob countless Holocaust victims of their property.

The executive agreements with Austria and France are comparable. Seeante, at
408, and n. 3.

"One is compelled to conclude that there are agreements which the President
can make on his sole authority and others which he can make only with the
consent of the Senate (or of both houses), but neither Justice Sutherland
[inUnited States v. Belmont, 301 U. S. 324 (1937)] nor any one else has told us
which are which." L. Henkin, Foreign Affairs and the United States
Constitution 222 (2d ed. 1996).

The Court also places considerable weight onCrosby v. National Foreign Trade
Council, 530 U. S. 363 (2000). As the Court acknowledges, however, ante, at
423, Crosby was a statutory preemption case. The state law there at issue posed
"an obstacle to the accomplishment of Congress's full objectives under the
[relevant] federal Act." 530 U. S., at 373. That statutory decision provides little
support for preempting a state law by inferring preclusive foreign policy
objectives from precatory language in executive agreements.

The Court apparently finds in the executive agreements' "express endorsement

of ICHEIC's voluntary mechanism" a federal purpose to preempt any
information disclosure mechanism not controlled by ICHEIC itselfAnte, at 423,
n. 13. But nothing in the executive agreements suggests that the Federal
Government supports the resolution of Holocaustera insurance claims only to
the extent they are based upon information disclosed by ICHEIC. The
executive agreements do not, for example, prohibit recourse to ICHEIC to
resolve claims based upon information disclosed through laws like the HVIRA.