Judith Resnik, Foreign as Domestic Affairs: Rethinking Horizontal Federalism and Foreign Affairs Preemption in Light of Translocal Internationalism

• Jurisdiction: United States,Federal
• Publication year: 2007
• Citation: Vol. 57 No. 1

ARTICLES & ESSAYS

FOREIGN AS DOMESTIC AFFAIRS: RETHINKING HORIZONTAL FEDERALISM AND FOREIGN AFFAIRS PREEMPTION IN LIGHT OF TRANSLOCAL INTERNATIONALISM

Judith Resnik^*

I. THE JUDICIAL SAFEGUARDS OF NATIONALISM AND THE POLITICAL

SAFEGUARDS OF FEDERALISM .............................................................. 33

II. TRANSNATIONAL LEGAL MOVEMENTS AND FEDERALISM ................... 43

A. Horizontal Federalism and the Institutions of Translocalism: National Organizations of Local Officials ................................... 43

B. Engendering Equality by Gender Mainstreaming: The

Example of CEDAW ..................................................................... 50

C. Translocal-Transnational Environmentalism: Kyoto and

Beyond .......................................................................................... 60

III. REGULATING THE IMPORT/EXPORT TRADE OF LAW ............................ 63

A. Laissez Faire or Regulated Internationalism? ............................. 63

B. Congressional Constraints on Judicial Importation .................... 66

C. Judicial Constraints on Importation: Protecting the Executive from Local Decisionmaking ......................................................... 71

1. Foreign Affairs Preemption: The Confused Doctrinal

Predicates ............................................................................... 74

2. Networked Corporate Interests Challenging Local

Initiatives: USA*Engage, NFTC, and Darfur ........................ 78

3. Congressional Protection of Local Divestment Initiatives:

A New Iteration of the Political Safeguards of Federalism..... 80

IV. THE END OF BUCOLIC FEDERALISM ..................................................... 87

I. THE JUDICIAL SAFEGUARDS OF NATIONALISM AND THE POLITICAL

SAFEGUARDS OF FEDERALISM

What does federalism have to do with the question of what role "foreign" law does or ought to play in the United States? That issue frames this Article.

In the United States, a movement that I call exclusive sovereigntism seeks to buffer the United States from "foreign" influences. That approach takes shape through various efforts; the two in focus here are attempts to limit judicial reliance on "foreign" law in constitutional interpretation¹and to constrain localities from aligning themselves with transnational efforts on human rights and global warming. Just as the expressions of exclusive sovereigntism are diverse, so are the political propositions that support it.²The facet explored here is the sovereigntist claim that the democratic structure of American federalism makes the turn to "foreign" law especially problematic. State autonomy and democracy are proffered as reasons to hold comparative and internationalist forays by judges and local officials at bay.

I appreciate and share sovereigntists' focus on law, its sources, and its speakers as important parts of the identity-building activity of nation-states.³

The acts of pronouncing, reiterating, implementing, and internalizing legal obligations are ways in which to make certain rules and practices constituent of community membership. Moreover, given that judges are specially situated legal actors, the attention paid to their words is appropriate. Through the vividness of conflicts over specific cases, judges become highly visible speakers asserting the meaning of a nation's law.

But to the extent that sovereigntists argue that their aims are to protect the democratic predicates of United States law and the authority of states, they miss how important state and local political leaders are in welcoming insights from abroad and in shaping American law. When articulating domestic policies, mayors, governors, and members of state and city legislatures often look beyond their own borders for guidance and sometimes choose to affiliate their localities with transnational initiatives.⁴Through such decisions,

American federalism has served as a major route through which "foreign" law becomes domesticated.

These local leaders often do not act alone. Underappreciated thus far in the literatures on federalism and on social network theory is the role played by translocal organizations of public officials. These networks (such as the Conference of Mayors, the National League of Cities, the National Governors Association, the National Conference of State Legislatures, the National Association of Counties, and others) are national, but not federal. They both mirror the jurisdictional boundaries of the United States and cross them. Furthermore, these organizations also blur the line between nongovernmental organizations ("NGOs") and government organizations, for they are voluntary, quasi-private associations of public actors.

Several of these organizations were founded in the early part of the twentieth century in efforts to bring local actors together to protect their interests as the national government expanded. The local groups sought federal aid while aiming to avoid federal regulation. Over the course of that century, these translocal public/private organizations have broadened their own horizons, both in terms of the issues that they address and the borders that they cross. Seeking good will and new markets, these translocal actors have become transnational actors. Their agendas range from trade and self- promotion to human rights and climate control, and they coordinate with their counterparts around the world.

Through these activities, these translocal organizations serve as importers and exporters of ideas, some of which they help to turn into law. Sitting between the government and the private sector, these national organizations of state officials have become vital forces in a norm entrepreneurship that I term translocal institutional transnationalism. These interactions create a two-way street (or ocean) for both importation and exportation, and what passes through are a range of precepts, liberal and conservative, on an array of topics from human rights and national security to the organization of families and commerce.

One of the goals of this Article is to document some of this trade in ideas and laws and to analyze how translocal transnationalism relates to the presumed problem of "foreign" law within the American polity. I do so by two examples, one outlining local efforts to promote and to use the United Nations Convention on the Elimination of All Forms of Discrimination Against

Women ("CEDAW"),⁵and the other sketching the engagement of cities in the

Kyoto Protocol to the United Nations Framework Convention on Climate Change ("Kyoto Protocol").⁶Both initiatives undermine the sovereigntist claim that a turn to "foreign" law intrinsically poses problems for majoritarianism and for federalism.

Moreover, the examples of CEDAW and of Kyoto also substantiate my arguments that the import and export of law over time is inevitable and that the categories of "local" and "national" and "international" are mutable rather than fixed. Topics once assumed uniquely subject to local governance are now matters taken up by transnational norms and laws. Thus, what falls within the realm of "foreign affairs" and "domestic affairs" has, will, and (in my view) should change over time. Rather than being exclusive sets, the overlap is substantial, as many issues are both "domestic" and "foreign." Moreover, while my discussion focuses on the United States, the phenomenon that I document is underway elsewhere. Around the world, localities have moved outside their own nation-states and affect intergovernmental relations as part of the "re-scaling" of governance (to borrow Saskia Sassen's term⁷) that reflects changes in population density and in migration which are facilitated by technologies and travel.⁸

But showing the fact of local import and export does not decide the issue of whether to try to regulate the trade in law, which is the second focus of this Article. Currently, efforts are underway to do just that through erecting barriers rather than having a laissez faire or "free-trade" approach. Below I examine in detail two mechanisms-one from Congress aimed at limiting judicial use of "foreign" law and the second, from federal courts, aimed at limiting localities' involvement with issues deemed "foreign." As to the first, I consider both congressional proposals seeking to prohibit federal judges from citing or relying on "foreign" law when interpreting the United States

Constitution⁹and senatorial inquiries about judicial nominees' attitudes to the use of "foreign" law in federal courts. As to the second, I explore the contours of a cluster of precepts grouped under the doctrine of "foreign affairs preemption" that has been used by federal judges to invalidate some local legislative efforts related to issues that judges see as exclusively within national authority. Examples include courts holding illegal local bans on purchases from countries condoning forced labor and on investments in companies tied to the Sudan.¹⁰

How is one to reason about these regulatory efforts? Ought laws addressing the role of non-United States law in either federal courts or state and local decisionmaking be made at all? If so, by what institutions (legislatures, the executive, or courts, state or national), and with what content? What is the relationship between federalism and preemption?

Were one to seek answers to these questions from the text of the Constitution, disappointment would rapidly follow. Although referring to the word state more than one hundred times,¹¹the United States Constitution never

Environmental Governance: The Cities for Climate Protection Program, 48 INT'L STUDIES Q. 471 (2004); Franz Gress, Interstate Cooperation and Territorial Representation in Intermestic Politics, 26 PUBLIUS J. FEDERALISM, Winter 1996, at 53; see also generally Paul Schiff Berman, Global Legal Pluralism, 80 S. CAL. L. REV. (forthcoming 2007); Paul Schiff Berman, A Pluralist Approach to International Law, 32 YALE J. INT'L L. 301 (2007)...