California's Holocaust Victim Insurance Relief Act and American Preemption Doctrine
By Libby Adler
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.B. Background on HVIRA
HVIRA requires insurance companies doing business in California that sold policies in Europe between 1920 and 1945 to file certain information with the state's Commissioner of Insurance. The required disclosures include the names of holders and beneficiaries of such policies and their cities of origin, as well as information about the disposition of the policies. A company's failure to comply with the disclosure requirements of HVIRA prompts the Commissioner to suspend the company's right to conduct business in California.
In enacting HVIRA, the California legislature found that "insurance company records [may be] the only proof of insurance policies" sold to victims of the Holocaust. Noting that "[a]t least 5,600" Holocaust survivors currently reside in California, the statute declares its purpose to be "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."
HVIRA was one of a cluster of statutes adopted by California in a gust of legislative creativity in the late 1990s. It came as part of a comprehensive effort...