Congress and the reconstruction of foreign affairs federalism.

• Author: Baasch, Ryan
• Position: Abstract into III. Three Principles of Foreign Affairs Federalism C. Congressional Power to Preempt in Foreign Affairs, p. 47-85

Abstract

Though the Constitution conspicuously bars some state involvement in foreign affairs, the states clearly retain some authority in foreign affairs. Correctly supposing that state participation may unnecessarily complicate or embarrass our nation's foreign relations, the Supreme Court has embraced aggressive preemption doctrines that sporadically oust the states from discrete areas in foreign affairs. These doctrines are unprincipled, supply little guidance, and generate capricious results. Fortunately, there is a better way. While the Constitution permits the states a limited and continuing role, it never goes so far as guaranteeing them any foreign affairs authority. Furthermore, the Constitution authorizes Congress to enact laws necessary and proper for carrying into execution federal powers. We believe that Congress can use this authority to adopt preemption mechanisms that reflect its view of the optimal role of states in international affairs. When it comes to policing state involvement in foreign affairs, Congress, rather than the courts, ought to be in the driver's seat. Critically, Congress can proactively police the states, meaning that it need not wait for state mischief before enacting legislation. To give a sense of the possible and to alter the terms of a debate focused on judicial policing of the states, we recommend several novel mechanisms of preempting or deterring state intervention in foreign affairs and suggest categories of state law that ought to trigger these mechanisms. The precise mix is for Congress to consider based on its own sense of the vices and virtues of state forays in international affairs and of our existing foreign affairs federalism.

INTRODUCTION I. Cacophonous Foreign Affairs A. The Need for One Voice B. Addressing the One Voice Critics II. Haphazard Judicial Preemption of the Cacophony A. Dormant Foreign Commerce Clause B. Dormant Foreign Affairs C. Executive D. Preemption via Statutes and Treaties III. Three Principles of Foreign Affairs Federalism A. The Retained Foreign Relations Powers of the States B. The Constitution Does Not Safeguard the Retained Foreign Relations Powers C. Congressional Power to Preempt in Foreign Affairs 1. Historical and Doctrinal Support for this Power 2. Considering Counterarguments IV. A Superior Preemption Regime A. Federal Preemptive Mechanisms 1. Judicial Preemption Based on Congressional Statutory Bans 2. State Department Preclearance 3. State Department Suspensive Veto Coupled with Congressional Review 4. Judicial Enforcement of Civil and Criminal Sanctions for States and State Officials B. State Triggers 1. State Laws that Facially Distinguish Among Nations and Nationals 2. State Laws that Discriminate Based on Foreign Law 3. Laws that Distinguish Based on Foreign Activity 4. Any State Law that Disrupts the Federal Conduct of Foreign Affairs 5. Conduct and Speech by State Officials CONCLUSION "[I]f all the discontented people in this country are to be suffered to tamper and negotiate with foreign Powers, it would lead to the most serious consequences." (1)

INTRODUCTION

Imagine that the president invites a divisive Middle Eastern leader to the United States for talks. An American mayor passionately disagrees with this decision and interjects in a fantastic way: the meddlesome mayor unceremoniously ejects the foreigner from a local event, branding him a terrorist and murderer. The mayor, lacking any diplomatic pedigree and unaccountable to the nation, has severely undercut the nation's conduct of foreign policy.

This all seems farfetched. Yet it is no law school hypothetical. New York Mayor Rudolph Giuliani once ousted Palestinian Liberation Organization Chairman Yasser Arafat from a Lincoln Center concert, claiming that Arafat was a murderer of Americans and a terrorist. (2) The Clinton Administration could do little more than sputter that the episode was "an embarrassment to everyone associated with diplomacy," (3) and had greatly complicated the peace process and the federal government's foreign policy agenda. (4)

The incident illustrates how subnational actors can complicate, unsettle, and obstruct our federal government's conduct of foreign affairs. (5) While that government's authority to steer our nation's foreign affairs is undisputed, a few scholars insist that the Constitution leaves states with residual authority in foreign affairs. (6) Perhaps such scholars suppose that the often-amateurish state intrusions in foreign affairs are simply unavoidable because the Constitution affirmatively safeguards the ability of states to have their own foreign relations.

In our view, the Constitution forms a "more perfect" foreign affairs federalism. We agree that the Constitution does not forbid state and local actors from dabbling in foreign affairs. Yet that is a far cry from supposing that it somehow guarantees that states may pursue their own foreign policies. The Constitution contains no such pledge or assurance of states' rights in foreign affairs. To the contrary, it contains the seeds of a federal solution to the problem of state interference. By statute, Congress may bar state meddling in foreign affairs. In fact, if Congress concludes that multiple voices burden the federal government's exercise of its foreign affairs authority, it can wholly divest the states of their ability to pursue foreign policies. In sum, Congress can end foreign affairs federalism as it exists today.

In Part I we advance our case for one voice--that, as a normative matter, the states should not intervene in foreign affairs. (7) The states should stand deaf and mute in the foreign arena because they lack the expertise and knowledge necessary to engage in that arena. States lack a cadre of resident international specialists (State Department bureaucrats) and do not have the benefit of semipermanent officials stationed abroad (ambassadors and their extensive retinue of experts). Moreover, as the Supreme Court and others have long recognized, difficulties and disadvantages ensue when states pursue their own foreign policies. (8) For instance, as a general matter little is gained by having some states court certain nations while others--including perhaps the federal government--disfavor those same sovereigns. Finally, and relatedly, the states may cause real mischief. Besides Mayor Giuliani's escapade, consider Idaho's misguided pursuit of trade with Libya in the 1970s. Despite clear executive disapproval of Muammar el-Qaddafi's regime and Libya's evident intention "to bring pressure to bear on Idaho's representatives in Washington" as a means of securing withheld military jets, Idaho doggedly sought a commercial relationship with the rogue regime. (9)

Part II considers the judiciary's role in aggressively policing state intrusion in the international arena and explains the inadequacies of this jurocentric approach. The Supreme Court employs aggressive preemption doctrines that, without entirely forbidding state involvement, often thwart state interloping. We have no quarrel with express or conflict preemption--where contrary federal law exists courts must declare state and local laws preempted. Moreover, we endorse the view that the states' interventions in foreign affairs are often suboptimal. Yet to its discredit, the Court has repeatedly stretched and strained in this area, often preempting on specious grounds. (10) The judiciary's overweening desire to suppress the states has generated some rather unedifying cases and doctrines.

Part III takes up the Constitution's approach to foreign affairs federalism. We conclude that though the Constitution bars certain state actions in foreign affairs, (11) it never ousts them from the field. (12) And yet it also never explicitly (or implicitly) guarantees the states a role in foreign affairs. In a sense, the Constitution establishes a default rule, one that permits states to have their own foreign policies without actually safeguarding any such authority. Part III closes by advancing a theory of congressional authority under which the political branches (rather than the courts) may more efficaciously cabin the states. The Necessary and Proper Clause, along with other foreign affairs grants to the federal government, empower Congress to completely oust the states from foreign affairs. Congress may do so on the theory that state interloping obstructs the sound exercise of federal power and that preemption is therefore necessary and proper to carry federal foreign affairs powers into execution. In sum, Congress may adopt measures meant to ensure that the states, rather than standing disunited, are "made one as to all foreign ... matters." (13)

Part IV advances a novel preemption regime. One scholar has argued that because "[t]here is no precise demarcation between the local and the international" it is impossible to "invalidate all state laws potentially implicating foreign nations." (14) We take up this challenge. We suggest federal mechanisms that Congress could employ to guard against state intrusions, including preclearance and temporary suspension of state laws. (15) We also propose a number of categories (we call them state "triggers") that Congress could consider as a means of identifying state laws that interfere in international affairs. For instance, Congress might wish to preempt state laws that single out particular countries (e.g., a state sanctioning Iran by name). Or Congress might wish to impede the enforcement of state laws that mete out different treatment based on the type of foreign government (e.g., a state law that turns on whether a government owns the means of production). Finally, we discuss how best to pair state law triggers with federal preemptive mechanisms. This is a complex undertaking, for an infinite number of state activities may affect our nation's foreign affairs. We believe, however, that Congress could construct a refined framework that would permit states...