Historical and Doctrinal Support for this Power
We believe that constitutional text sufficiently establishes that Congress may deter and preempt state interventions in foreign affairs. But we also draw support from long-established federal statutes and judicial doctrines. Enduring federal laws bespeak extensive congressional power to bar interference with federal stewardship of foreign affairs. (218) And the Supreme Court has endorsed the proposition that Congress may oust the states from broad spheres, even in the absence of comprehensive federal legislation. (219) These legislative enactments and judicial declarations should leave little doubt that Congress enjoys authority to oust the states from foreign affairs.
Examples of Congresses barring interference in international matters date back to the Federalist era. For instance, the Crimes Act of 1790 outlawed attempts to imprison foreign public ministers or seize or attach their assets and also criminalized attempts to seek, prosecute, or enforce judicial decrees related to the same. (220) The Act explicitly applied to "officers" who might enforce such decrees. (221) Moreover, the Act criminalized violations of safe conducts and "offering violence" to foreign public ministers. (222) These prohibitions evidently applied to state officials.
Or consider the 1794 Neutrality Act. (223) At the time, Americans were taking up arms and siding with France in its war against Great Britain. (224) Given the capacity of nonfederal actors to draw the country into war, "[i]t would be most deplorable if no such controlling power existed in" the federal government to prevent such actions. (225) Of course, Congress had such authority. The Act not only barred attacks on nations with which the United States was at peace, it also barred certain forms of assistance to foreign warships. (226) Again, the Act applied to all persons, including state officials. (227)
The 1799 Logan Act bars any citizen (including state officials) from "influence[ing] the measures or conduct of ... foreign government[s] ... in relation to any disputes or controversies with the United States." (228) Congress found the law necessary because such attempts at private diplomacy were a "usurpation of executive authority." (229) The Act's application to state officials is apparent not only from its text, but from its history as well; the Act was a response to the foreign affairs freelancing of a state legislator, George Logan. (230)
While early acts of Congress support our theory of broad legislative power to bar interference in foreign affairs, the Supreme Court's jurisprudence is even more supportive. First, as was discussed in Part II, the Court has eagerly read all manner of federal enactments--statutes, treaties, executive agreements--as if they preempted state law. In so doing, the Court has shown a penchant for preemption of state interference. Though we question its approach, we share this policy preference. For our purposes, the Court's enthusiasm for finding preemption signals that there is nothing amiss in congressional preemption of state interference in foreign affairs. After all, it would be odd for the Court to adopt broad readings of federal enactments if doing so raised constitutional issues about Congress's ability to preempt. We think that the Court embraced expansive readings of federal statutes because it saw absolutely no difficulties with federal preemption in this arena. What Justice Souter said in Crosby--that "[a] fundamental principle of the Constitution is that Congress has the power to preempt state law," (231) is undoubtedly true with respect to foreign affairs.
Second, the Court has occasionally discussed field preemption in a way that supports broad federal power to preempt. For over a century the Court has spoken of federal authority to oust the states from certain regulatory spheres entirely. The Court most clearly recognized this power in a line of cases at the beginning of the 20th century, beginning with Southern Railway Co. v. Reid. (232) Reid concerned the intersection of federal and state authority over the burgeoning railroad industry. (233) The Court invalidated a South Carolina act regulating railroad companies, finding that, by virtue of the Interstate Commerce Act, Congress had "taken possession of the field" of railroad regulation. (234)
Given the Court's reading of a federal statute to implicitly oust the states from the entire sphere of railroad regulation, it is clear that the Court supposed Congress could occupy that sphere, even in the absence of federal legislation that sought to regulate every aspect of railroads. The Reid court spoke of a "[federal exertion of authority which takes from a State the power to regulate," unqualified by any need for a conflict between state and federal law. (235) In other words, the Court did not conclude that specific provisions of federal and state law were incompatible. Instead the Court found that Congress had completely stripped the states of their authority to regulate in this arena.
The Court spoke more clearly three years later in Chicago, Rock Island & Pacific Railway Co. v. Hardwick Farmers Elevator Co. (236) The case concerned the regulation of railroad car delivery, a subject over which the Court assumed the states were permitted to regulate "in the absence of [controlling] legislation by Congress." (237) The Court construed an act of Congress to completely strip the states of their authority. Specifically, "the power of the State over the subject-matter ceased to exist," when Congress dealt with a subject over which the states had no inherent, but only permissive, power." (238) In a case decided later that year, the Court explained that this jurisdiction stripping of the states could extend to cases where their acts purport to supplement, rather than conflict, with the relevant federal law. (239)
To be sure, the Court no longer preempts state action in a given arena unless Congress manifests such an intent. (240) We have no quarrel with this focus on intent as a touchstone for preemption. Our only point is that it should be clear that the Supreme Court supposes that Congress may strip the states of authority in certain arenas of concurrent jurisdiction. More precisely, the Court believes that where the Constitution does not guarantee the states certain powers, Congress may strip the states of their concurrent authority when the latter concludes that state involvement interferes with the exercise of federal authority.
We agree with what is implicit in the Court's foreign affairs federalism cases. Because the states lack a constitutional right to engage in foreign affairs and because Congress enjoys authority to ensure the implementation of federal foreign affairs powers, Congress may enact measures meant to prevent state interference with federal stewardship of foreign affairs.
Because our constitutional claims are novel, we are hard-pressed to identify the objections one might lodge. Nonetheless, we see four possible concerns: (1) the Founders rejected the idea of a congressional negative on state laws, (2) Congress does not possess the power to tell the states they may not exercise concurrent authority when the national legislature has not itself yet acted in that arena--Congress cannot "nakedly preempt"; (3) the First Amendment prevents Congress from stifling the voices of the states, even in the foreign arena; (4) Congress cannot preempt the states in order to shield the president's executive power where the president wishes no such defense--that is, our claim raises substantial separation of powers concerns. We take these issues up in turn.
At the Founding there was a move to grant federal authority to negative state laws. The Virginia Plan provided that Congress could "negative all laws passed by the several States contravening ... the articles of union." (241) Charles Pinckney of South Carolina conceived of a power to negative all state laws that Congress judged "improper." (242) Of course, the state delegations never acted on such suggestions and the Constitution contains no express "power to negative" state acts, unconstitutional or otherwise.
The failure to enact such provisions is irrelevant to our claims, for we do not argue that Congress, via the Necessary and Proper Clause or otherwise, can preempt all unconstitutional or improper state laws. Instead, we believe that the federal government has power that is both broader and narrower than the ones discussed at Philadelphia. Federal power is broader because Congress may enact laws that preempt state laws even in the absence of a constitutional conflict; in other words, Congress can preempt state laws that are entirely constitutional. Moreover, Congress need not wait for the states to pass such laws. Rather than preempting particular state laws as and when they arise, Congress can enact prophylactic rules. To take a real example, Congress may provide that an executive agency must preclear state laws before they become operative. (243)
In our view, federal power is narrower in that Congress cannot preempt state law where it lacks subject matter authority over the relevant area. For instance, even if Congress thought that state bans on gun possession within 1,000 feet of schools was improper, it likely could not preempt such state bans because Congress lacks substantive authority over this behavior. (244) Similarly, Congress probably cannot preempt where the Constitution guarantees states concurrent authority. For instance, Congress probably cannot provide that the states may not erect quarantines. (245) Our point is that Congress does not have a roving commission to preempt all state laws that it regards as improper, and our constitutional claims do not suggest otherwise.
In any event, notwithstanding the failure to enact a provision that would have enabled Congress to nullify all unconstitutional state...
Congress and the reconstruction of foreign affairs federalism.
|Position::||Continuation of III. Three Principles of Foreign Affairs Federalism C. Congressional Power to Preempt in Foreign Affairs through Conclusion, with footnotes, p. 85-107|
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