Forgive me, founding fathers for I have sinned: a reconciliation of foreign affairs preemption after Medellin v. Texas.

• Author: Pytynia, Carolyn A.

ABSTRACT

The Supremacy Clause of the U.S. Constitution grants the federal government the authority to make the law of the land and, in turn, preempt state law that is incompatible with the federal government's legislative and treaty making efforts. In addition, other provisions of the Constitution authorize the federal government to participate in matters of foreign affairs, and the Supreme Court has found this authority to be exclusive to the federal government in a number of cases. However, the Constitution is silent on the issue of when federal preemption of state law is appropriate when states seek to legislate in matters of foreign affairs. In American Insurance Ass'n v. Garamendi, the Supreme Court found that California's Holocaust Victim Insurance Relief Act of 1999 violated the foreign affairs power of the national government. The Court's reasoning rested on the premise that the executive power includes the power to conduct foreign affairs on behalf of the nation. Ultimately, the Court employed a two-prong test that justified preemption: whether an express federal policy was in place at the time the state law was enacted and whether the conflict between the two laws was sufficient to permit preemption of the state law. In 2008, in Medellin v. Texas, the Court did not allow for preemption despite the factual similarities to the Garamendi case. These two cases demonstrate the complications surrounding federal preemption of state law in matters of foreign affairs, specifically in areas in which the federal government has yet to act. This Note seeks to rectify foreign affairs preemption cases and argues for a policy-based approach grounded in a factor analysis.

TABLE OF CONTENTS I. INTRODUCTION II. THE GENESIS OF THE PREEMPTION DOCTRINE A. Conflict Preemption B. Dormant Foreign Affairs Preemption C. The State of Foreign Affairs Preemption Before Garamendi III. GARAMENDI AND MEDELLIN MUDDLE THE ANALYSIS IV. LIFE AFTER MEDELLIN A. Executive Action Carries the Force of Law B. Conflict Between State Law and Executive Action C. Congressional Approval D. Reconciliation V. CONCLUSION I. INTRODUCTION

The federal government has historically derived its exclusive authority to conduct foreign affairs from an amalgamation of provisions in the U.S. Constitution. Under the Articles of Confederation, the federal government lacked power to invalidate state laws that improperly conflicted with treaties or foreign initiatives, resulting in the federal government's inability to articulate a coherent foreign policy. (1) Consequently, the Founding Fathers sought to combat this decentralization through specific provisions of the Constitution that granted the federal government the supreme authority to make the laws of the land. (2) Article I, Section Eight outlines the power of Congress to conduct foreign affairs, (3) while Article II authorizes the Executive Branch to participate in matters of international import. (4) Together, these two provisions provide the federal government with the power to conduct international relations and interact with foreign governments. (5)

Further, the Constitution exclusively allocates these powers to the federal government and prohibits states from exercising similar authority by barring them from entering into agreements and treaties with international actors. (6) As a result, the states' power to engage in activities in the international forum is limited to the power reserved to them by the Tenth Amendment. (7) Any additional action by state governments that incidentally affects foreign affairs is subject to congressional authorization (8) and potentially judicial scrutiny. Utilizing this constitutional basis for authority, courts have routinely upheld the exclusive right of the federal government to conduct foreign affairs to the detriment of state efforts to do so. Courts have also applied the foreign affairs doctrine in a manner that has allowed for preemption of state laws that appear to unconstitutionally interfere with the federal government's exclusive power.

Beyond this seemingly constitutional authority to conduct foreign affairs, the Supreme Court has consistently upheld this power as exclusive to the federal government. In United States v. Belmont, the Court articulated that the "complete power over international affairs is in the national government ... and cannot be subject to any curtailment or interference on the part of the several states." (9) This notion, coupled with the preemption authority granted to the federal government through the Supremacy Clause, has provided the Judiciary, as well as the other branches of government, with a justification for preempting state law that addresses international affairs.

A number of cases have also furthered the principle that the President may conduct international relations without prior or even subsequent congressional approval. In United States v. Curtiss-Wright Export Corp., the Court preserved the right of the President to act independent of congressional authorization. (10) The Court highlighted the "unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed," given the inherent delicacy with which matters of foreign affairs must be handled. (11) In order to preserve the sovereignty of the national government and its ability to participate in the international environment, the Court felt it was unnecessary to hinder the President in his interactions with foreign nations. (12)

Later, in Dames & Moore v. Regan, the Court permitted unilateral attempts by the President to resolve international claims without consulting Congress because of the "history of congressional acquiescence in conduct of the sort engaged in by the President." (13) In that case, the President sought to enforce executive orders that implemented an executive agreement calling for the release of American hostages in Iran. (14) The petitioner filed suit in an attempt to prevent implementation of the executive agreement on the grounds that the President was acting outside of the scope of authority granted to him by statute and the Constitution. (15) Even though no prior statutes directly addressing executive agreements existed, the Court upheld the agreement as a valid exercise of executive authority and seemed to expand the power of the President through a reliance on implicit congressional authorization through inaction. (16)

Additionally, the Court granted preemptive authority to the executive agreement, but limited its decision by arguing that Congress had consented to the type of executive agreement that was at issue. (17) Citing Youngstown Sheet & Tube Co. v. Sawyer, the Court justified its finding on the basis that "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned ... may be treated as a gloss on 'Executive Power' vested in the President by [section] 1 of Art. II." (18) The holdings in Youngstown, Curtiss-Wright, and Dames & Moore have historically justified the President's independent authority to conduct foreign affairs. It was not until later that these cases served as the basis for authorizing preemption of state law under the guise of upholding the Executive's exclusive power to act on the international stage.

Following the lead of the Supreme Court, lower courts have upheld the federal preemption of state law in matters of foreign affairs. However, the requisite conditions necessitating federal preemption are unclear and somewhat inconsistent. Early cases addressing the issue looked to whether the state law conflicted with the federal law, (19) while others overlooked the conflict requirement in favor of maintaining Congress's exclusive right to legislate in matters of foreign import. (20) As a result, no cohesive, generally applicable standard for cases of foreign affairs preemption emerged and the analysis became increasingly muddled.

In American Insurance Ass'n v. Garamendi, the Supreme Court attempted to articulate a standard for foreign affairs preemption cases that would more aptly guide lower courts in their adjudications of this issue. In that case, the Court found that California legislation directly conflicted with the President's ability to conduct foreign affairs, thereby upholding the conflict preemption doctrine. (21) At the same time, the Court appeared to grant the President's policy statement the preemptive authority previously reserved only for documents that carried the force of law. (22) However, in 2008, this standard was reevaluated and modified in Medellin v. Texas. Similar to a policy statement, the Court found that memoranda issued by the President did not constitute enforceable, domestic law that triggers preemption analysis even though a clear conflict between the efforts of the state and the actions of the federal government exists. (23) As a result, the analysis of federal preemption of state law in matters of foreign affairs again became confusing and seemingly irreconcilable after Medellin.

Since that decision, courts have struggled to discern a concrete standard for foreign affairs preemption cases and the integral factors to be considered in such analyses. In response, district courts have regularly distinguished these various precedents to accommodate their desired outcomes, and a uniform standard remains absent. This disjunction in lower court application of Supreme Court precedent has all but mandated an appropriate standard that is consistent with prior rulings, the rules of federalism, and constitutional requirements.

This Note discusses the emergence and evolution of the foreign affairs preemption doctrine from its creation through case law to its current unknown status after Medellin. Part II provides an outline of the changes the preemption doctrine has undergone through varying treatment by the Supreme Court that has caused the current...