Cite as: 539 U. S. 396 (2003)
Ginsburg, J., dissenting
B
Despite the absence of express preemption, the Court holds that the HVIRA interferes with foreign policy objectives implicit in the executive agreements. See ibid. I would not venture down that path.
The Court's analysis draws substantially on Zschernig v. Miller, 389 U. S. 429 (1968). In that case, the Oregon courts had applied an Oregon escheat statute to deny an inheritance to a resident of a Communist bloc country. The Oregon courts so ruled because the claimant failed to satisfy them that his country's laws would allow U. S. nationals to inherit estates, nor had the claimant shown he would actually receive payments from the Oregon estate with no confiscation by his home government. Id., at 432. Applying Oregon's statutory conditions, the Court concluded, required Oregon courts to "launc[h] inquiries into the type of governments that obtain in particular foreign nations," id., at 434, rendering "unavoidable judicial criticism of nations established on a more authoritarian basis than our own," id., at 440. Such criticism had a "direct impact upon foreign relations," the Court said, id., at 441, and threatened to "impair the effective exercise of the Nation's foreign policy," id., at 440. The Court therefore held the statute unconstitutional as applied in that case. Id., at 433-434. But see id., at 432 ("We do not accept the invitation to re-examine our ruling in Clark v. Allen [331 U. S. 503 (1947)]," which held a substantively similar California statute facially constitutional.).
We have not relied on Zschernig since it was decided, and I would not resurrect that decision here. The notion of "dormant foreign affairs preemption" with which Zschernig is associated resonates most audibly when a state action "reflect[s] a state policy critical of foreign governments and involve[s] 'sitting in judgment' on them." L. Henkin, Foreign Affairs and the United States Constitution 164 (2d ed. 1996); see Constitutionality of South African Divestment Statutes Enacted by State and Local Governments, 10 Op. Off. Legal
439
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