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California's Holocaust Victim Insurance Relief Act and American Preemption Doctrine

Published online by Cambridge University Press:  06 March 2019

Libby Adler

Extract

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On the same day that the United States Supreme Court handed down its much anticipated decisions on affirmative action in higher education, holding that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution permits a degree of race-consciousness in public university admissions, it also issued a far less heralded decision with implications for the ability of the states to address historical injustice. In American Insurance Association v. Garamendi (Garamendi), five members of the Court, led by Justice Souter, found that California's Holocaust Victim Insurance Relief Act of 1999 (HVIRA) “interferes with the National Government's conduct of foreign relations” and is therefore preempted.

Type
Legal Culture
Information
German Law Journal , Volume 4 , Issue 11 , 01 November 2003 , pp. 1193 - 1205
Copyright
Copyright © 2003 by German Law Journal GbR 

References

1 See, generally, Grutter v. Bollinger, 123 S.Ct. 2325 (2003) and Gratz v. Bollinger, 123 S.Ct. 2411 (2003).Google Scholar

2 123 S.Ct. 2374 (2003).Google Scholar

3 Cal. Ins. Code Ann. §§ 13800–13807 (West Cum. Supp. 2003).Google Scholar

4 Garamendi, supra note 2, at 2379.Google Scholar

5 Cal. Ins. Code Ann. § 13804 (West Cum. Supp. 2003).Google Scholar

6 Cal. Ins. Code Ann. § 13804 (West Cum. Supp. 2003).Google Scholar

7 Cal. Ins. Code Ann. § 13806 (West Cum. Supp. 2003).Google Scholar

8 Cal. Ins. Code Ann. § 13801 (c) (West Cum. Supp. 2003).Google Scholar

9 Cal. Ins. Code Ann. § 13801 (d) (West Cum. Supp. 2003).Google Scholar

10 Cal. Ins. Code Ann. § 13801 (f) (West Cum. Supp. 2003).Google Scholar

11 California also granted its courts jurisdiction to hear claims against German corporations by former slave laborers of the Reich, extending the statute of limitations to 2010. Cal. Code Civ. Proc. § 354.6 (West 2000). See, also, Russell A. Miller, Much Ado, But Nothing: California's New World War II Slave Labor Law: Statute of Limitations and Its Place in the Increasingly Futile Effort to Obtain Compensation from American Courts, 23 Whittier L. Rev. 121 (2001), and Diane Richard Foos, Righting Past Wrongs or Interfering in International Relations? World War II-Era Slave Labor Victims Receive State Legal Standing After Fifty Years, 31 McGeorge L. Rev. 221 (2000).Google Scholar

12 Bazyler, Michael J., Nuremberg in America: Litigating the Holocaust in United States Courts, 34 U. Rich. L. Rev. 1, 93-101 (2000).Google Scholar

13 Id. at 95-96.Google Scholar

14 Cal. Ins. Code Ann. § 12967 (West Cum. Supp. 2003).Google Scholar

15 Cal. Code Civ. Proc. § 354.5 (c) (West Cum. Supp. 2003).Google Scholar

16 Garamendi, supra note 2, at 2397 (Ginsburg, J. dissenting).Google Scholar

17 Id. at 2385.Google Scholar

18 Garamendi, supra note 2, at 2381; Agreement Between the Government of the United States and the Government of the Federal Republic of Germany Concerning the Foundation “Remembrance, Responsibility and the Future” (July 17, 2000)[hereinafter “Executive Agreement”], at http://www.state.gov/www/regions/eur/holocaust/000717_agreement.html.Google Scholar

19 See, Executive Agreement, Art. 2(1). It is worth noting, however, that the United States did not promise that its Statement of Interest would bind American courts. It understood its own authority to be limited by the American tripartite system. See Stuart Eizenstat, Imperfect Justice 272-273 (2003).Google Scholar

20 See, Executive Agreement, Art. 2(2).Google Scholar

21 Garamendi, supra note 2, at 2382.Google Scholar

22 The ICHEIC has faced charges of having “so far produced little.” Insurance and the Holocaust: Line to Nowhere, The Economist Aug 2-8, 2003 at 61-62.Google Scholar

23 See, Garamendi, supra note 2, at 2382.Google Scholar

24 See, id.Google Scholar

25 See, id. at 2386. Accord 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.” The necessity for a single voice is unanimously accepted, but Justice Ginsburg would not have found that the voice had spoken.Google Scholar

26 See, id. at 2386.Google Scholar

27 Id. at 2387.Google Scholar

28 Id.Google Scholar

29 See, id.Google Scholar

30 See, Erwin Chemerinsky, Constitutional Law: Principles and Policies § 5.2.1 (2d ed. 2002).Google Scholar

31 Id. (citing Gade v. National Solid Waste Management Association, 505 U.S. 88, 98 (1992)).Google Scholar

32 See, e.g., Fallon, Richard H., The “Conservative” Paths of the Rehnquist Court's Federalism Decisions, 69 U. Chi. L. Rev. 429 (2002).Google Scholar

33 See, Garamendi, supra note 2, at 2399 (Ginsburg, J. dissenting).Google Scholar

34 Id. at 2382.Google Scholar

35 Id. at 2390.Google Scholar

36 Id. at 2388.Google Scholar

37 Id. at 2390.Google Scholar

38 Id.Google Scholar

39 Id.Google Scholar

40 Id. at 2393.Google Scholar

41 Id. at 2398 (Ginsburg, J. dissenting).Google Scholar

42 See, id. at 2399 (Ginsburg, J. dissenting). The exception is a case from 1968 striking down a bizarre Oregon statute that denied inheritance rights to claimants residing communist bloc countries. See id. at 2399-2400 discussing Zschernig v. Miller, 389 U.S. 429 (1968). As Justice Ginsburg notes in her dissent, the case has never been relied upon to justify implied preemption for foreign affairs and was unique in that the statute at issue contained a “‘state policy critical of foreign governments and involve[d] ‘sitting in judgment’ on them.’” Id. at 2400, citing L. Henkin, Foreign Affairs and the United States Constitution 164 (2d ed. 1996).Google Scholar

43 Id. at 2384-85.Google Scholar

44 See, id.Google Scholar

45 Id. at 2401 (Ginsburg, J. dissenting).Google Scholar

46 Id. at 2397, n.1 (Ginsburg, J. dissenting).Google Scholar

47 Id. at 2392.Google Scholar

48 Id. at 2397, n.1 (Ginsburg, J. dissenting).Google Scholar

49 Id. at 2379-80.Google Scholar

50 Id. at 2380.Google Scholar

51 Id. at 2381. See, also, Treaty on the Final Settlement with Respect to Germany, Sept. 12, 1990; Bazyler, supra note 12, at 5-9.Google Scholar

52 See, Garamendi, supra note 2, at 2381. For more elaboration on this point, but in the context of Nazi slave and forced labor suits, see, Libby Adler and Peer Zumbansen, The Forgetfulness of Noblesse: A Critique of the German Foundation Law Compensating Slave and Forced Laborers of the Third Reich, 39 Harv. J. on Legis. 1, 41-49 (2002); also in NS-Zwangsarbeit: Erinnerung und Verantwortung/NS-Forced Labor: Remembrance and Responsibility 333 (P. Zumbansen ed., Nomos 2002).Google Scholar

53 Garamendi, supra note 2, at 2391.Google Scholar

54 See, id. at 2395, (Ginsburg, J. dissenting).Google Scholar

55 Id. (Ginsburg, J. dissenting).Google Scholar

56 Id. (Ginsburg, J. dissenting).Google Scholar

57 Id. at 2396 (Ginsburg, J. dissenting). Accord id. at 2382.Google Scholar

58 Id. at 2392.Google Scholar

59 Relatedly, disclosures made pursuant to HVIRA could enable a claimant to identify a policy that could form the basis for a claim with the ICHEIC. See, id. at 2397 (Ginsburg, J. dissenting).Google Scholar

60 It should be noted that Justice Ginsburg maintained that executive power was compromised rather than preserved by the majority because the Court did not “reserve foreign affairs preemption for circumstances where the President%. has spoken clearly to the issue at hand.” Id. at 2401 (Ginsburg, J. dissenting).Google Scholar

61 See, e.g., Gratz, supra note 1.Google Scholar

62 Notice, however, that this case could have been decided on foreign commerce clause grounds and was not; whether HVIRA violated that clause was among the three questions in the grant of certiorari. Garamendi, supra note 2, at 2385, n. 7. The extension of the foreign aspect of the commerce clause to strike down a state insurance law might not have sat well with the Chief Justice after his opinions limiting federal power in such interstate commerce cases as U.S. v. Lopez, 514 U.S. 549 (1995) (striking down the Gun-Free School Zones Act of 1990 as beyond the scope of Congressional power under the Commerce Clause), and U.S. v. Morrison, 529 U.S. 598 (2000) (striking down the civil rights cause of action under the Violence Against Women Act as beyond the scope of Congressional power under the Commerce Clause and the § 5 of the Fourteenth Amendment).Google Scholar

63 See, (then Associate) Justice Rehnquist's majority opinion in Nat'l League of Cities v. Usery, 426 U.S. 833 (1976) (relying on a traditional state function analysis to hold that the federal government was limited in its competence to regulate the states as employers). The Court overruled Nat'l League of Cities in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), from which Justice Rehnquist dissented.Google Scholar

64 See, Rehnquist, William H., All the Laws But One: Civil Liberties in Wartime 224 (1998) (recalling the maxim “Inter arma silent leges,” – in time of war, the law is silent – and noting, apparently without disturbance, that “apart from the added authority that the law itself may give the President in time of war, presidents may act in ways that push their legal authority to its outer limits, if not beyond.”).Google Scholar

65 See, e.g., Grutter, supra note 1, at 2365- 2370 (Rehnquist, CJ. dissenting from the Court's approval of the affirmative action program employed by the University of Michigan Law School, on the grounds that the program amounted to “racial balancing.”)Google Scholar

66 See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J. concurring, but urging that “[i]ndividuals who have been wronged by unlawful racial discrimination should be made whole” in the manner of a private suit, rather than a legislative program of social engineering.)Google Scholar

67 Some of the negotiated compensation arrangements arising out of the Holocaust do bear a resemblance to the more “social” and less “private” approach of affirmative action, such as the Swiss bank settlement. See, e.g., Bazyler, supra note 12, at 86-87, (observing that “almost all of the individuals and organizations who will be receiving a share of the $1.25 billion paid by the Swiss banks have not been harmed, at least directly, by the Swiss banks’ actions during and after World War II.”)Google Scholar

68 I have left out Justices Kennedy and O'Connor here due to their recurrent roles as “swing voters” on federalism cases.Google Scholar

69 See, e.g., Lopez, supra note 61, at 603-615 (Souter, J. dissenting), and id. at 615-631, (Breyer, J. dissenting).Google Scholar

70 Garamendi, supra note 2, at 2393.Google Scholar

71 Id.Google Scholar

72 Id. at 2396 (Ginsburg, J. dissenting).Google Scholar

73 Id. at 2393.Google Scholar

74 Id.Google Scholar