foreign affairs power

In June 1996, Massachusetts adopted An Act Regulating State Contracts with Companies Doing Business with or in Burma (Myanmar), 1996 Mass. Acts 239, ch. 130, codified at Mass. Gen. Laws §§ 7:22G–7:22M (1997), and the statute generally bars state entities from buying goods or services from any person identified on a restricted purchase list of those doing business with Burma. The definition of doing business with Burma is broad and encompasses operations or subsidiaries in Burma, providing financial services to the government, promoting importation of gems or timber, or providing goods or services to the government, though exemptions exist for news reporting, international telecommunications, and medical supplies. Three months later, in September 1996, Congress passed a statute imposing mandatory and conditional sanctions on Burma that banned aid to the Burmese Government except for humanitarian purposes, instructed United States representatives to oppose loans from international financial institutions, and imposed visa restrictions on Burmese officials. Congress also authorized the President to prohibit new investment by United States persons upon findings of repression and directed development of a multilateral strategy while granting authority to waive sanctions when contrary to national security interests. On May 20, 1997, the President issued Executive Order No. 13047, certifying that the Burmese Government had committed large-scale repression of the democratic opposition and prohibiting new investment in Burma by United States persons along with related transactions. The National Foreign Trade Council, a nonprofit representing companies engaged in foreign commerce, had thirty-four members on the Massachusetts restricted purchase list in 1998, and three of those members withdrew from Burma after the state law while one had a bid increased by ten percent under the state provision. In April 1998 the Council filed suit in the United States District Court for the District of Massachusetts against the state officials charged with administering the Act, and after detailed stipulations, briefing, and argument the district court permanently enjoined enforcement of the state Act. The First Circuit affirmed the injunction on three independent grounds, and the Supreme Court granted certiorari to resolve the questions of preemption and related constitutional issues.

In 1948, President Truman formally recognized the State of Israel but did not recognize Israeli sovereignty over Jerusalem. Over the subsequent decades, the Executive Branch maintained a consistent policy that the status of Jerusalem should be decided through negotiations rather than unilaterally. The State Department's Foreign Affairs Manual directed that passports for citizens born in Jerusalem list only "Jerusalem" as the place of birth. In 2002, Congress enacted the Foreign Relations Authorization Act, Fiscal Year 2003, including section 214(d), which provided that for a United States citizen born in Jerusalem, the Secretary of State shall, upon request, record the place of birth as Israel on the passport. When signing the Act, President George W. Bush issued a statement asserting that the provision would impermissibly interfere with the President's constitutional authority if construed as mandatory. Menachem Binyamin Zivotofsky was born in Jerusalem in 2002 to United States citizens. His mother requested that his passport list "Jerusalem, Israel" as the place of birth, but embassy officials followed State Department policy and listed only "Jerusalem." Zivotofsky's parents then brought suit on his behalf in the United States District Court for the District of Columbia to enforce section 214(d). The district court dismissed the case on political question and standing grounds. The Court of Appeals for the District of Columbia Circuit affirmed the political question determination after initially reversing on standing. The Supreme Court granted certiorari, vacated, and remanded for further proceedings. On remand, the Court of Appeals held the statute unconstitutional. The Supreme Court granted certiorari again.

Shortly after taking office, President Trump signed Executive Order 13769 directing a review of information provided by foreign governments about their nationals seeking entry and temporarily restricting entry from seven countries previously identified as posing terrorism risks. After courts enjoined that order, the President revoked it and issued Executive Order 13780, which again directed a worldwide review and temporarily restricted entry from six of the countries. Following completion of the review, the President issued Proclamation No. 9645 on September 24, 2017, placing entry restrictions on nationals of eight countries—Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—whose systems for managing and sharing information the President deemed inadequate. The Proclamation imposed varying restrictions by country, exempted lawful permanent residents and asylees, provided for case-by-case waivers, and directed ongoing 180-day reviews; restrictions on Chad were later lifted after it improved its practices. Plaintiffs including the State of Hawaii, three U.S. citizens with foreign-national relatives from Iran, Syria, and Yemen applying for visas, and the Muslim Association of Hawaii challenged the Proclamation in the District of Hawaii on statutory and Establishment Clause grounds. The district court granted a nationwide preliminary injunction. The Ninth Circuit affirmed on statutory grounds. The Supreme Court granted certiorari.

In 2006 Congress enacted the Sex Offender Registration and Notification Act. The statute requires sex offenders to register in the jurisdictions where they live, work, and attend school. It also directs the Attorney General to specify the applicability of its requirements to offenders convicted before the Act’s enactment and to prescribe rules for their registration. At the time of enactment the nation’s population of sex offenders exceeded 500,000, and Congress left the treatment of these pre-Act offenders to the Attorney General after concluding that immediate application would impose costly burdens on states and localities. The Attorney General first left pre-Act offenders unregulated for six months after enactment. An interim rule issued in 2007 then required all pre-Act offenders to follow the same registration rules as post-Act offenders. Subsequent Attorneys General issued varying guidelines, with one directing states to register only some pre-Act offenders, another requiring registration only for those convicted of a new felony after enactment, and still others differing on whether pre-Act offenders could receive credit for time already spent in the community. Herman Gundy pleaded guilty in 2005 to possessing child pornography. He was released from prison five years later. He was arrested in 2012 for failing to register as a sex offender under the rules then prescribed for pre-Act offenders and faced an additional ten-year prison term. Gundy was convicted in 2012. He argued in the district court that Congress had unconstitutionally delegated legislative power when it authorized the Attorney General to specify the applicability of SORNA’s requirements. The district court rejected the argument. The Second Circuit affirmed, relying on its precedent that SORNA does not unconstitutionally delegate legislative authority. The Supreme Court granted certiorari.

In 1999, the California legislature enacted the Holocaust Victim Insurance Relief Act (HVIRA). It requires any insurer doing business in the state to disclose details of all life, property, liability, health, annuities, dowry, educational, or casualty insurance policies sold in Europe between 1920 and 1945 by the insurer itself or any related company. This includes any parent, subsidiary, reinsurer, successor in interest, managing general agent, or affiliate. The required disclosures include the current status of each policy, the city of origin or domicile of each policyholder, and the names of the beneficiaries. All information is placed in a central public registry. Noncompliance triggers mandatory suspension of the company's license to do business in California. There are also misdemeanor sanctions for falsehood in required representations about whether and to whom the proceeds of each policy have been distributed. The Act arose against the backdrop of Nazi-era confiscations of Jewish insurance policies and decades of post-war diplomacy. After World War II, the United States participated in the Potsdam and Yalta Conferences and the 1946 Paris Agreement on reparations. The western Allies decided in the London Debt Agreement to put off consideration of claims arising out of the second World War until the final settlement of the problem of reparation. Following German reunification, class-action lawsuits flooded U.S. courts against companies that did business in Germany during the Nazi era. This prompted the federal government to negotiate a resolution. In July 2000, the United States and Germany signed the German Foundation Agreement. Germany established a foundation funded with 10 billion deutsch marks contributed equally by the government and German companies to compensate victims of the National Socialist era. The United States agreed to file statements in U.S. courts that the foundation should be the exclusive remedy for claims against German companies. It also agreed to use its best efforts to encourage state and local governments to respect the foundation as the exclusive mechanism. Parallel agreements were reached with Austria and France. The pacts endorsed the International Commission on Holocaust Era Insurance Claims (ICHEIC) for voluntary handling of insurance claims. This included relaxed standards of proof and procedures for policy information. After HVIRA took effect, administrative subpoenas were issued against subsidiaries of European insurers participating in the ICHEIC. Deputy Secretary of the Treasury Stuart Eizenstat wrote letters to California officials. He stated that the statute damaged the cooperative spirit required for the ICHEIC. He noted that it threatened to derail the German Foundation Agreement by denying companies the legal peace they sought. Several American and European insurance companies and the American Insurance Association then sued California Insurance Commissioner John Garamendi in federal district court. The district court issued a preliminary injunction and later granted summary judgment on due process grounds. The Ninth Circuit rejected the foreign affairs challenge. The Supreme Court granted certiorari in 2003.