They’ll pre-empt regardless!

It therefore did not matter that the federal statute did not contain an express preemption provision. nor did it matter that the Massachusetts statute’s general goal of pushing Burma to greater democracy was the same as the federal statute’s goal. The court held that “[t]he fact of a common end hardly neutralizes conflicting means.” Id. at 379. This is a far more stringent test than is applied to non-foreign policy cases.

Second, in American Insurance Association v. Garamendi, 539 U.S. 396 (2003), the court held that a California statute that compelled insurance companies to disclose policies sold in Europe to Holocaust victims interfered with the President’s conduct of foreign affairs, and was therefore preempted. Although the California statute solely mandated disclosure, California had enacted other laws that would have allowed Holocaust victims who had not received the benefits to which they were entitled under their war-era insurance policies to sue their insurers. The court found that California’s approach conflicted with “Presidential foreign policy,” which “has been to encourage European governments and companies to volunteer settlement funds in preference to litigation or coercive sanctions.” Id. at 421; see also id. at 427 (“California seeks to use an iron fist where the President has consistently chosen kid gloves”).

The decision provoked a sharp dissent from an eclectic lineup of Justices (Stevens, Scalia, Thomas, and Ginsburg), who criticized the majority for preempting a state law in a traditionally state-regulated area, particularly where the preempting federal executive agreement contained neither express preemption language nor any mention of the type of information that was the subject matter of the preempted state law