Gubernatorial foreign policy.

• Author: Ku, Julian G.
• Position: Symposium on Executive Power

ESSAY CONTENTS INTRODUCTION I. A SYSTEM OF GUBERNATORIAL FOREIGN POLICY A. Defining a Gubernatorial Foreign Policy B. Examples of Gubernatorial Foreign Policy 1. Responding to Demands by Foreign Governments and International Institutions 2. International Agreements a. Bilateral Agreements b. Multilateral Agreements 3. Executive Actions Pursuant to Statutory Authorization II. THE LEGAL BASIS OF A GUBERNATORIAL FOREIGN POLICY A. A Constitutional Space for a Gubernatorial Foreign Policy 1. The Retreat from Federal Exclusivity 2. Commandeering a. New York v. United States and Printz v. United States b. Commandeering and Foreign Affairs B. Expanding the Constitutional Space 1. Responding to Foreign Demands 2. Treaty Limitations III. THE ADVANTAGES OF GUBERNATORIAL FOREIGN POLICY A. Building a Gubernatorial Foreign Policy Capacity B. Accommodating Globalization While Preserving Federalism CONCLUSION INTRODUCTION

In May 2004, the office of Governor Brad Henry of Oklahoma became the unlikely focal point of relations between Mexico and the United States. Osbaldo Torres, a Mexican national convicted of multiple murders by Oklahoma courts, was scheduled to be executed on May 18. Not only was the Mexican government urgently lobbying the governor's office on Torres's behalf, but the Governor was also considering a judgment issued by the International Court of Justice (ICJ) purporting to require him to suspend Torres's execution and to order a new hearing to consider the effect of treaty violations on Torres's conviction and sentence. (1) At the same time, attorneys for Tortes were urgently seeking an order from Oklahoma's highest court of criminal appeals to stay the execution based on the ICJ's order. (2)

On the morning of May 13, the Oklahoma court suspended the execution and ordered a new hearing pursuant to the ICJ judgment. (3) A few hours later, Governor Henry announced at a press conference that he had commuted Torres's sentence to life imprisonment, thereby removing most of the legal basis for Torres's appeal under the ICJ judgment. (4)

As the Governor, the state's highest criminal court, the Mexican government, and the ICJ struggled to resolve Torres's fate, one entity was curiously absent: the U.S. federal government. According to news reports, the State Department had contacted Governor Henry's office but had merely urged him to consider the ICJ's judgment. (5) The federal government did not intervene in the litigation in the Oklahoma state courts. The Governor was not ordered by the President to commute Torres's sentence. Rather, the Governor exercised his own discretion in making that decision. (6)

The President's passivity is surprising because it is an axiom of U.S. foreign relations law that the President is the leading authority, perhaps even the "sole organ," (7) for the conduct of U.S. foreign policy. Moreover, it is nearly as axiomatic that state governments are not granted an independent role in conducting foreign policy. (8) Yet in this case, a potentially important diplomatic issue was left entirely to the discretion of the Governor of Oklahoma and the Oklahoma state courts. Indeed, although the State Department issued statements in previous ICJ cases involving similar issues, none of the statements "ordered" or "commanded" the governors in those cases; each governor made an independent decision about whether and how to comply with the ICJ's judgments. (9)

To be sure, in a subsequent case involving the effect of the same ICJ judgment on a Texas execution, the President intervened by releasing a memorandum purporting to order the Texas courts to follow the ICJ's judgment. (10) The constitutionality of this order will be tested in the near future, but even if upheld, it applies only to state courts, and not to governors. (11) For a variety of reasons, both legal and political, state governors will retain some measure of independent discretion to exercise their powers in ways that might affect and indeed determine aspects of U.S. foreign policy.

Governors exercise this limited but important foreign policy power in a variety of contexts. In addition to the power to respond to requests by foreign governments and international institutions, governors also negotiate and execute certain kinds of international agreements in pursuit of regional or international cooperation. Governors and other state executive officials administer insurance regulations and state purchasing regulations in pursuit of certain foreign policy goals. In these admittedly limited but hardly unimportant areas, a gubernatorial foreign policy is beginning to emerge.

My goal in this Essay is to redirect the existing academic conversation on state governments and foreign affairs. While scholars have considered the legal and policy consequences of state activities in foreign affairs, (12) they have not considered the unique rote of governors in the state foreign policy process. Nor have scholars considered the usefulness of a governor-led system of state foreign policy as an accommodation between the forces of globalization and the domestic federal system.

My discussion proceeds in three parts. Part I introduces and defines a system of gubernatorial foreign policy. Part II argues that notwithstanding the traditional understanding of exclusive federal control over foreign affairs, existing constitutional doctrine still permits states to exercise limited independence in matters affecting foreign affairs. I conclude in Part III that this system of gubernatorial foreign policy represents the most practical and feasible accommodation of the forces of globalization and a system of dual sovereignties envisioned by the U.S. constitutional structure.

1. A SYSTEM OF GUBERNATORIAL FOREIGN POLICY

   In this Part, I introduce and define a system of gubernatorial foreign policy. I then examine three examples of this system in action.

   1. Defining a Gubernatorial Foreign Policy

      Executive officials of a particular state often take actions that implicate the foreign relations of the United States as a whole. Such actions become a "gubernatorial foreign policy" when a governor or other state executive official takes that action independent of federal government supervision or control. (13) The level of gubernatorial independence from the federal government, however, varies depending on the situation.

      In some cases, governors act with the full acquiescence of the federal government to deal with a matter implicating foreign affairs. In these instances, governors act at the height of their foreign policy powers because the federal government has expressly endorsed their activities. In other cases, gubernatorial activities are taken without either express approval or opposition by the federal government. Because the federal government's views are often uncertain on foreign policy matters facing governors, many of the gubernatorial foreign policy activities I describe belong to this second category. Finally, certain gubernatorial activities are taken with the express disapproval of the federal government. In these circumstances, the governors' foreign policy powers are highly restricted. As I will argue in Part II, however, there are a few circumstances in which a governor's decision on how to proceed is constitutionally protected from federal control.

      Not all gubernatorial foreign policy activities have the same legal character. Like exercises of the federal executive's foreign policy power, exercises of a state executive's foreign policy power take place within a complex and uncertain web of legal authorizations, prohibitions, and limitations. Some of these activities might be said to encroach upon federal powers, while others might be constitutionally shielded from federal control. But all represent an important and insufficiently studied component of the foreign policy system of the United States.

   2. Examples of Gubernatorial Foreign Policy

      In this Section, I review three examples of gubernatorial foreign policy in action. First, governors engage in foreign policy when they take primary responsibility for responding to demands by foreign governments and international institutions. Second, governors engage in foreign policy when they negotiate and sign international and regional agreements on behalf of their states. Finally, governors and other members of a state's executive branch take foreign policy actions when they impose sanctions or other economic limitations on doing business with particular foreign countries. Each type of gubernatorial foreign policy reflects some level of independence from federal government control.

      1. Responding to Demands by Foreign Governments and International Institutions

         States have always played an important role in responding to demands by foreign governments and international institutions. (14) The most dramatic examples of this role can be found in conflicts between the state administration of capital punishment and the United States' international obligations. These conflicts highlight the central position that governors hold when dealing with demands by foreign governments and international organizations.

         The administration of capital punishment by the states has drawn intense criticism from foreign governments as well as from international institutions. (15) Aside from general moral disapproval, foreign critics have also alleged that the death penalty violates certain U.S. obligations under international law. As discussed below, these international obligations provide foreign governments and international institutions with a basis for demanding a change in U.S. death penalty practices.

         Although the challenged death penalty practices implicate the obligations of the entire United States, the federal government has generally referred both foreign governments and international institutions to a particular state's governor. For example, between 1997 and 2003, Mexico filed diplomatic notes in at least twenty capital...