1 CAL. INS. CODE §§13800-13807.

2 Gerling Global Reinsurance Corp. v. Low, 240 F.3d 739, 742-43 (9th Cir. 2001), rev'd sub nam. Am. Ins. Ass'n v. Garamendi, 123 S.Ct. 2374 (2003).

3 240 F.3d at 751-53.

4 See id. at 746—51. For a related discussion of “one voice,” see Japan Line, Ltd. v. Los Angeles, 441 U.S. 434, 448 (1979) (considering whether state regulation of foreign commerce, in addition to the requirements applying to taxation of interstate commerce, prevented the United States from “speaking with one voice” in foreign affairs as a result of the regulation).

5 See 71 U.S.L.W. 3470 (Jan. 10, 2003).

6 123 S.Ct. 2374(2003).

7 Garamendi, 123 S.Ct. at 2379.

8 Id. at 2379-80.

9 Id. at 2380.

10 Id.

11 Id. at 2381.

12 Id.

13 Id. See generally Ronald J. Bettauer, The Role of the United States Government in Recent Holocaust Claims Resolution, 20 Berkeley. INT'LL. 1 (2002).

14 123 S.Ct. at 2381-82. For a discussion of the foundation, see Sean D. Murphy, Contemporary Practice of the United States, 94 AJIL 682 (2000). The United States’ efforts were led by Undersecretary of State Stuart Eizenstadt, who detailed the experience in an illuminating book, Imperfect Justice (2003). For an overview of the variety of claims made by Holocaust survivors—which range from suits against Swiss banks over the disposition of dormant accounts to suits to reclaim stolen or looted art—see Michael J. Bazyler, Nuremburg in America: Litigating the Holocaust in United States Courts, 34 U. RICH. L. REV. 1 (2000). For Bazyler's discussion of the claims against insurance companies for their handling of policies sold to Holocaust victims, see id. at 93-159.

15 123 S.Ct. at 2382.

16 Id.

17 Id. at 2383.

18 Id.

19 Id. at 2384. In addition, in a provision that was not addressed in Garamendi, California law authorized survivors to bring suit in state court on insurance claims until December 31, 2010. SeeCAL. CODE Civ. PROC. §354.5.

20 123S.Ct. at 2384.

21 Id. at 2386.

22 Id.

23 Id. (“While Congress holds express authority to regulate public and private dealings with nations in its war and foreign commerce powers, in foreign affairs the President has a degree of independent authority to act.“).

24 Id. at 2387. Souter dismissed the objection that the agreements here were with foreign corporations. “Historically,” he wrote, “wartime claims against even nominally private entities have become issues in international diplomacy,” adding that” [a] cceptance of this historical practice is supported by a good pragmatic reason for depending on executive agreements to setde claims against foreign corporations associated with wartime experience“; that is, “untangling government policy from private initiative during war time 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.” Id.

25 Id. at 2386 (“[OJur 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“).

26 Id. at 2387. For the president's unique powers in foreign affairs matters, see United States v. Curtiss-WrightExport Corp., 299 U.S. 304, 320 (1936) (upholding president's authority to impose arms embargo not only on congressional authorization, but also with reference to the “very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress“). United States v. Belmont, 301 U.S. 324 (1937), and United States v. Pink, 315 U.S. 203 (1942), confirmed that the president had the authority to enter into executive agreements other than treaties, including agreements for the settlement of claims, and that those treaties could displace contrary state law. See Belmont, 301 U.S. at 330 (holding that “the Executive had authority to speak as the sole organ of [the federal] government” in setding claims with the Soviet Union and that “[t]he assignment and the agreements in connection therewith did not, as in the case of treaties require the advice and consent of the Senate“), 331 (“the external powers of the United States are to be exercised without regard to state laws or policies“; the Supremacy Clause operates “in the case of all international compacts and agreements from the very fact that complete 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“) ;Pink, 315 U.S. at 229 (“The powers of the President in the conduct of foreign relations included the power, without consent of the Senate, to determine the public policy of the United States with respect to Russian nationalization decrees… . That authority … includes the power to determine the policy which is to govern the question of recognition Power to remove such obstacles to full recognition as settlement of claims of our nationals… certainly is a modest implied power of the President who is the ‘sole organ of the federal government in the field of international relations.'“), 230-31 (holding that “state law must yield when it is inconsistent with, or impairs the policy or provisions of, a treaty or of an international compact or agreement“).

27 123 S.Ct. at 2390.

28 id.

29 Id.

30 Id.

31 Id. at 2391.

32 Id.

33 See id.

34 Id. at 2392-93.

35 Id. at 2392.

36 Id.

37 Id. at 2393.

38 Id.

39 15 U.S.C. §§1011-1015. The McCarran-Ferguson Act's purpose, the Court wrote, “was to limit congressional preemption under the commerce power, whether dormant or exercised,” and “a federal statute directed to implied preemption by domestic commerce legislation cannot sensibly be construed to address preemption by executive conduct in foreign affairs.” 123 S.Ct. at 2394.

40 Holocaust Assets Commission Act of 1998,112 Stat. 611. The Court found that the “Commission's focus was limited to assets in the possession of the Government,” 123 S.Ct. at 2394, and that references in the act to the National Association of Insurance Commissioners—encouraging them to assist the federal commission by collecting information on foreign and domestic insurers doing business in the United States—were, according to the statute itself, limited “to the degree the information is available.” This proviso, the Court concluded, “can hardly be read to condone state sanctions interfering with federal efforts to resolve such claims.” Id.

41 123S.Ct. at 2394.

42 Id. at 2395 (Ginsburg, J., dissenting) (“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.“).

43 Id. at 2398 (Ginsburg,J., dissenting).

44 Id. at 2399 (Ginsburg,J., dissenting) (citation omitted).

45 Id. at 2400 (Ginsburg,J., dissenting) (emphasis added).

46 Id. at 2401 (Ginsburg,J., dissenting). For the majority's reliance on executive branch statements, see id. at 2390-91, 2392.

47 Id. at 2401 (Ginsburg,J., dissenting).

48 Id. (Ginsburg,J., dissenting).

49 Id. (Ginsburg,J., dissenting).

50 CAL. CODE CIV. PROC. §354.6.

51 The statute defined a “Second World War slave labor victim” as any person taken from a concentration camp or ghetto or diverted from transportation to a concentration camp or from a ghetto to perform labor without pay for any period of time between 1929 and 1945, by the Nazi regime, its allies and sympathizers, or enterprises transacting business in any of the areas occupied by or under the control of the Nazi regime or its allies and sympathizers. Id. §354.6(a)(l).

52 A “Second World War forced labor victim” was defined as any person who was a member of the civilian population conquered by the Nazi regime, its allies or sympathizers, or prisoner-of-war of the Nazi regime, its allies or sympathizers, forced to perform labor’ without pay for any period of time between 1929 and 1945, by the Nazi regime, its allies and sympathizers, or enterprises transacting business in any of the areas occupied by or under control of the Nazi regime or its allies and sympathizers.

53 Id. §354.6(a)(2).

54 Id. §354.6(b). The statute set, as the measure of compensation, the present value of wages and benefits that individuals should have been paid and damages for injuries sustained in connection with the labor performed. Presentvalue shall be calculated on the basis of the marketvalue of the services at die time they were performed, plus interest from the time the services were performed, compounded annually to the date of full payment without diminution for wartime or postwar currency devaluation. Id. §354.6(a)(3). M Id. §354.6(c).

55 For good overviews of the litigation, see generally Curtis A. Bradley, World War II Compensation and Foreign Relations Federalism, 20 Berkeley. INT'L L. 282, 290-92 (2002), and David D. Caron & Adam Schneider, U.S. Litigation Concerning Japanese Forced Labor in World War II, at http://www.asil.org/insights/insigh57.htm (2000).

56 See Deutsch v. Turner, No. CV 00-4405 (CD. Cal. Aug. 25, 2000).

57 See, e.g., In re World War II Era Japanese Forced Labor Litigation, 164 F.Supp.2d 1153,1157 (N.D. Cal. 2001) (concluding that the suits were barred by the treaty of peace withjapan);/n re World War II Era Japanese Forced Labor Litigation, 114 F.Supp.2d 939, 944-49 (N.D. Cal. 2000) (same).

58 See In re World War II Era Japanese Forced Labor Litigation, 164 F.Supp.2d 1160,1165-68 (N.D. Cal. 2001) (dismissing claims of citizens of nonsignatories of peace treaty on ground that statute was unconstitutional infringement of foreign affairs power of the federal government).

59 J 324 F.3d 692, 703 (9th Cir. 2003). Two other cases—one filed by a group of American prisoners of war and the other filed by a Korean national—are working their way up through the state court system. The POWs’ suit was dismissed because the court concluded that the peace treaty signed with Japan preempted such claims. Mitsubishi Materials Corp. v. Superior Court, 130 Cal. Rptr.2d 734, 749 (Cal. Ct. App. 2003). In the other case, however, another appeals panel permitted a Korean national's suit to go forward under §354.6. Taiheiyo Cement Corp. v. Superior Court, 129 Cal. Rptr.2d 451 (Cal. Ct. App. 2003). That panel concluded that the 1951 peace treaty did not preempt the statute; that it did not impermissibly infringe on the foreign affairs power of the federal government; that it did not violate any due process rights; and that the controversy was justiciable. Id. at 472. The California Supreme Court has agreed to hear these cases.

60 389 U.S. 429(1968).

61 324 F.3d at 709.

62 Id. at 710.

63 M a t 711.

64 Id. at 711-12 (citation and footnotes omitted).

65 Id. at 712.

66 Id.

67 Id.

68 Id. at 712-13 (discussing peace treaties and other agreements concluded with Germany).

69 Id. at 714 (describing the peace treaty with Japan).

70 The court noted that prisoners of war were compensated from assets seized by the United States from Germany, Japan, or their nationals within the United States. Id. POWs were required, however, to submit claims to a government agency, whose decision was final, and no other private right of action against German orjapanese entities was contemplated. Id.

71 Id. at 715; seealsoid. at 713-14 (“[T]he Constitution allocates the power over foreign affairs to the federal government exclusively, and the power to make and resolve war, including the authority to resolve war claims, is central to the foreign affairs power in the constitutional design. In the absence of some specific action that constitutes authorization on the part of the federal government, states are prohibited from exercising foreign affairs powers, including modifying the federal government's resolution of war-related disputes.“).

72 For the history behind this consolidation, see generally G. EDWARD WHITE, THE CONSTITUTION AND THE NEW DEAL 62-93 (2002);Joel R. Paul, The Geopolitical Constitution: Executive Expediency and Executive Agreements, 86 CAL. L. REV. 671 (1998); wa & oSaikrishnaB. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALELJ. 231 (2001).

73 123 S.Ct. at 2398-2401 (Ginsburg, J., dissenting).

74 Id. at 2388, 2390.

75 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,587 (1952) (“In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.“).

76 ” 123 S.Ct. at 2387.

77 453 U.S. 654,680 (1981) (“Crucial to our decision today is the conclusion that Congress has implicitly approved the practice of claim settlement by executive agreement.“); see also id. at 688 (“[W]e re-emphasize the narrowness of our decision. We do not decide that the President possesses plenary power to settle claims, even as against foreign governmental entities.“).

78 Crosby v. National Foreign Trade Council, 530 U.S. 363, 367-70 (2000) (discussing delegation of power by Congress to the president regarding sanctions to be imposed on Burma). The case is reported at 94 AJIL 750 (2000). 79 123 S.Ct. at 2387 (“Making executive agreements to settle claims of American nationals against foreign governments is a particularly longstanding practice, the first example being as early as1799 … . Given the fact that the practice goes back over 200 years … and has received congressional acquiescence throughout its history, the conclusion ‘that the President's control of foreign relations includes the settlement of claims is indisputable.'“) (quoting United States v. Pink, 315 U.S. 203, 240 (1942)).

80 U.S. CONST. Art. VI. I thank Michael Ramsey for this point.

81 See, e.g., Crosby, 530 U.S. at 366 (striking down Massachusetts law targeting companies that do business with Burma); United States v. Locke, 529 U.S. 89 (2000) (striking down Washington state regulation of oil tankers); but see Barclays Bank PLC v. Franchise Tax Bd., 512 U.S. 298 (1994) (upholding California's method for computing income of multinational corporations for franchise tax purposes). Lockeis discussed in Patrick O. Gudridge, Case Report: Locke v. United States, 94 AJIL 745 (2000). Garamendi is also representative of recent foreign affairs decisions by its studied lack of attention to questions of original intent. Despite impressive historical research by Curtis Bradley, Martin Flaherty, Jack Goldsmith, David Golove, Saikrishna Prakash, Michael Ramsey, Peter Spiro, Carlos Vazquez, and John Yoo, just to name a few foreign relations law scholars, the Court seems content for this area to progress along a common-law constitutionalism model.

82 For arguments that the states were intended to have a greater say in foreign affairs than recent Court decisions would suggest, seejack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism.

83 VA. L. REV. 1617 (1997); Michael D. Ramsey, The Power of States in Foreign Affairs: The Original Understanding of Foreign Policy Federalism, 75 NOTRE DAME L. REV. 541 (1999). For the argument that the Constitution and theframers intended state involvement in foreign affairs to be more restricted, see Brannon P. Denning &Jack H. McCall Jr., The Constitutionality of State and Local “Sanctions “Against Foreign Countries: Affairs of State, States ‘Affairs, or a Sorry State of Affairs ? 26 HASTINGS CONST. L.Q. 307 (1999). 85123 S.Ct. at 2398 (agreeing that executive agreements can preempt state law); id. at 2400 (suggesting that state court litigation might be preempted by executive agreements otherwise silent on preemptive effects) (Ginsburg, J., dissenting).

84 Id. at 2398 (Ginsburg, J., dissenting).

85 Id. at 2399-2400 (Ginsburg, J., dissenting).

86 Id. at 2400 n.4 (Ginsburg, J., dissenting) (Crosby “provides little support for preempting a state law by inferring preclusive foreign policy objectives from precatory language in executive agreements“).

87 Crosby, 530 U.S. at 373-86.

S8 123 S.Ct. at 2401 (Ginsburg, J., dissenting).

89 Id. at 2398 (reserving the question of preemptive effect in the absence of affirmative expressions of federal policy).

90 Id. at 2390.

91 Se«Zschernigv. Miller, 389 U.S. 429, 432 (1968).

92 123 S.Ct. at 2389-90 & n . l l .

93 Id. at 2389.

94 Id.

95 M. &n.ll.

96 For a summary of the debate over presidential powers in foreign affairs, see Prakash & Ramsey, supra note 72, at 233-52. For a succinct argument that history and practice confirm the primacy of the president's role, see H. JEFFERSON POWELL, THE PRESIDENT's AUTHORITY OVER FOREIGN AFFAIRS: AN ESSAY IN CONSTITUTIONAL INTERPRETATION (2002).

97 See, e.g., Michael D. Ramsey, Executive Agreements and the (Non)Treaty Power, 77 N.C. L. REV. 122, 235 (1998) (“if used too widely, or recognized too openly, these powers subvert the constitutional design, which envisions a checking power for the Senate“).

98 123 S.Ct. at 2400 (GinsburgJ., dissenting) (remarking that the ambiguity in the executive agreements regarding their preemptive effect “appears to have been the studied aim of the American negotiating team“).

99 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (“The President's power, if any, to issue the order [seizing steel mills in response to a labor dispute] must stem either from an act of Congress or from the Constitution itself.“).

100 See supra note 77 and accompanying text (discussing Dames & Moore).

101 123 S.Ct. at 2394 (emphasizing absence of congressional disapproval of agreements).

102 See, e.g., Ramsey, supra note 97, at 240 (arguing that executive agreements can preempt only when given legislative sanction).

103 123 S.Ct. at 2399 (Ginsburg, J., dissenting).

104 See supra notes 93-95 and accompanying text. It is interesting that in another context—the Court's imposition of limits on Congress's power to regulate interstate commerce, see, e.g., United States v. Morrison, 529 U.S. 598 (2000)—-Justice Souter has ridiculed efforts to assess, as a function of setting those limits, what constitutes the “traditional” powers of state governments. See Morrison, 529 U.S. at 652 (Souter, J., dissenting) (criticizing “the Court's choice to invoke considerations of traditional state regulation in” cases addressing the scope of congressional power under the Commerce Clause).

105 123 S.Ct. at 2389.

106 See supra notes 91-95 and accompanying text.

107 512 U.S. 298 (1994). 512 U.S. at 302-03.

109 Id. at 328-29.

110 M a t 329.

111 Goldsmith, supra note 82, at 1698-705; see also CURTISA. BRADLEY & JACKL. GOLDSMITH, FOREIGN REIATIONS LAW 316 (2003) (asking whether Barclays Bank overrules Zschemig). I have elsewhere argued that Barclays Bank can be explained by the Court's reluctance to interfere with the state's taxing regimes, absent some facial or effective discrimination against foreign commerce. Denning & McCall, supra note 82, at 337, 347.

112 123 S.Ct. at2391&n.l2.

115 Id.

114 Id. at 2397, 2399 (Ginsburg, J., dissenting).

115 See CAL. CODE Crv. PROG. §354.5. This provision was challenged, but the challenge was dismissed by the district court on standing grounds. 123 S.Ct. at 2383 n.4.

116 123 S.Ct. at 2400 (Ginsburg, J., dissenting).

117 See generally Eizenstat, supra note 14.

118 530 U.S. 363 (2000) (striking down Massachusetts law sanctioning firms doing business with Burma; law preempted by congressional statute).

119 See, e.g., Agreement on Reparation from Germanyjan. 14,1946, Art. 11(A), 61 Stat. 3157,555 UNTS 69 (“The Signatory Governments agree among themselves that their respective shares of reparation shall be regarded by each of them as covering 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 (which are not otherwise provided for) … . “ ); Treaty of Peace, U.S.-Japan, Sept. 8, 1951, Art. XIV(b), 3 UST 3169,136 UNTS 45 (“Except as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war, and claims of the Allied Powers for direct military costs of occupation.“).

120 See supra note 70.

121 See, e.g., Treaty of Peace, U.S.Japan, supra note 119, preambular para. 1 (stating that “the Allied Powers and Japan are resolved that henceforth their relations shall be those of nations which, as sovereign equals, cooperate in friendly association to promote their common welfare … and are therefore desirous of concluding a Treaty of Peace which will settle questions still outstanding as a result of the existence of a state of war between them“).

122 See In Re World War II Forced Labor Litigation, 164 F.Supp.2d 1160,1167-68 (N.D. Cal. 2001); but see Deutsch, 324F.3dat714n.14 (“It is immaterial that many of the Appellants are nationals of two countries, China and Korea, that were not signatories of the San Francisco treaty. When the United States has been a party to a war, the resolution it establishes to that war is the resolution for the whole of the United States. States lack the power to modify that resolution, regardless of the citizenship of those seeking redress.“). While this comment suggests that Judge Reinhardt would not have held the presence of citizens of nonsignatory states in the litigation to be a bar to a finding of treaty preemption, he provided no authority for such a position.