Citizens Not Subjects: U.S. Foreign Relations Law and the

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Citizens Not Subjects: U.S. Foreign Relations Law

and the Decentralization of Foreign Policy

Nick Robinson

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Recommended Citation

Robinson, Nick (2007) "Citizens Not Subjects: U.S. Foreign Relations Law and the Decentralization of Foreign

Policy," Akron Law Review: Vol. 40 : Iss. 4 , Article 3.

Available at: h<p://ideaexchange.uakron.edu/akronlawreview/vol40/iss4/3

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647

CITIZENS NOT SUBJECTS: U.S. FOREIGN RELATIONS

LAW AND THE DECENTRALIZATION OF FOREIGN

POLICY

Nick Robinson

NTRODUCTION

[L]ocal assemblies of citizens constitute the strength of free nations.

Municipal institutions are to liberty are what primary schools are to

science; they bring it within the people’s reach, they teach men how to

use and how to enjoy it. A nation may establish a system of free

government, but without the spirit of municipal institutions it cannot

have the spirit of liberty.

De Tocqueville found America’s “spirit of liberty” grounded in its

citizens’ engagement with municipal political institutions.

It was here

that locally relevant and creative new policies were fostered, tyranny

was resisted, and the responsibilities of self-governing were internalized

by a democratic people. For De Tocqueville this “spirit of liberty”

required not only direct democracy at a local level, but also that

municipalities possess relative power over their own affairs.

It was this

combination of local democracy with local independence that turned

“good subjects” into “active citizens.”

Today, there are few municipalities in the United States that are

Yale Law School, J.D. 2006. Currently Fox Fellow at Jawaharlal Nehru University, New Delhi. I

would like to thank Judith Resnik and Reva Siegel for their comments on an earlier draft of this

article. An earlier version of this article was selected for presentation at the 2006 Yale Journal of

International Law Young Scholars Conference. I am grateful for feedback from participants at that

conference, especially Paul Berman. Finally, I would like to thank Bruce Ackerman for his

comments arising out of discussions of this article.

1. 1 A

LEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA VOLUME ONE 63 (Phillip Bradley

ed., Francis Brown rev., Henry Reeve trans., 1954) (1835).

2. Id.

3. Id. at 69.

4. Id. at 69.

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ruled through local assemblies of citizens. Instead, representative forms

of government are the norm. However, citizens’ involvement with the

politics of state and local governments (“localities”) still fosters and

protects many of the liberty interests De Tocqueville identified in the

1830s. Citizens continue to find that it is generally easier to access the

democratic process through state and local governments rather than the

federal government. This involvement is worthwhile for citizens

because localities still possess independence over many policies that

affect citizens’ lives. Although certainly not every citizen is politically

involved, localities create separate political communities in which

citizens can participate. Within these communities, issues of purely

local relevance are debated and decided upon, but also issues that hold

relevance beyond the localities’ and even the nation’s borders. In this

way, localities continue to be school houses of democratic empowerment

while providing a check against the power of the federal government.

It would seem that there are few areas of policy where the federal

government has greater justification for claiming exclusive control than

in foreign relations. A misstep in foreign affairs by a state or local

government can have adverse and potentially devastating effects on the

entire country. If a state or local government adopts a position that

differs from official federal foreign policy, it fractures the country’s

voice and negotiating power abroad. Moreover, it seems prudent to

centralize in the federal government the expertise and resources that

have traditionally been required to conduct relations with other nations.

And yet, state and local governments today have become deeply

enmeshed in international affairs as globalization has decentralized

foreign relations. On the one hand, localities have become more

autonomous international actors than they ever were or could have been

before. In pursuing interests with international implications, they tread

in a sphere traditionally monopolized by the federal government. On the

other hand, the internationalization of many formerly domestic issues

means that an increasing number of traditional state and local

government actions now have foreign policy implications.

The emergence of localities as actors in American foreign policy

creates new possibilities for creating more participatory and democratic

international relations. It also merely reflects a world where increased

interconnectivity across borders and the global regulation of markets and

values has collapsed local and international concerns. This article will

argue that U.S. foreign relations law has failed to address this new

reality. The Supreme Court has largely clung either explicitly or

implicitly to a jurisprudence that holds that the country should speak

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with “one voice” in foreign relations. Such a position is not only naïve,

but it also weakens American democracy. With globalization’s

commingling of the local and the international, a strong judicial bias

towards federalizing issues with a bearing on foreign relations will lead

to a hollowing out of the decision-making power of localities. States

and municipalities will risk becoming largely units of administrative

governance.

To be clear, this article does not challenge the view that under the

Constitution and its subsequent interpretation the federal branches have

the power to trump state and local laws and actions that affect foreign

relations.

Article I, Section 8 and Article II of the Constitution provide

the legislative and executive branches power to “conduct foreign

relations through the enactment of federal statutes, treaties, and

executive agreements.”

Article VI establishes the supremacy of these

federal enactments over state law.

Article III grants federal judicial

power to cases concerning these federal enactments and controversies

involving foreigners.

Article I, Section 10 prohibits a state from

performing certain foreign affairs functions, including entering into a

“treaty, alliance, or confederation.”

The Supreme Court has interpreted

these provisions together to give the federal political branches a power

over international affairs that “cannot be subject to any curtailment or

interference on the part of the several states.”

The federal government

clearly has the power to override state and local government policies for

the sake of a unified federal foreign policy.

Arguably, the judiciary should no longer accommodate the federal

government’s unlimited plenary power in foreign relations. The

judiciary should instead balance federal foreign policy concerns against

the interests of localities to ensure the federal government does not

wrongly usurp local power under the guise of its foreign relations

powers. Court cases involving localities’ interests in foreign affairs

often impact a diffuse and disparate set of issues. As such, there is

reason to believe localities may not effectively organize together to

protect their interests in these cases. Further, Madison and other

founders probably more generally overestimated the ability of states to

5. Jack Goldsmith makes a similar caveat in his work on foreign relations law in Jack

Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 V

A. L. REV. 1617, 1619-20 (1997).

6. Id. at 1619;

U.S. CONST. art. I, § 8; Id. art. II, §§ 2-3.

7. Id.

art. VI, cl. 2.

8. Id. art. III, § 2.

9. Id.

art. I, § 10.

10. United States v. Belmont, 301 U.S. 324, 331 (1937); See also Mo. v. Holland, 252 U.S.

416, 432-35 (1920).

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resist federal encroachment on their power. This initial Constitutional

miscalculation may need to be corrected by increased judicial

intervention on the behalf of localities’ interests.

This article, however, leaves to others to determine whether the

Constitution has been properly interpreted to give the federal

government a largely unchecked hand in foreign relations. This article

makes a more modest claim. It argues that courts should protect the

space that is currently open to state and local government action that

affects foreign relations–i.e., the space where neither the executive,

Congress, nor the Constitution has barred state and local action that

nonetheless affects foreign affairs.

Instead of protecting this available space though, courts have

adopted the opposite approach by repeatedly curtailing localities’ actions

in foreign relations even without an explicit conflict with federal foreign

policy or the Constitution. Part I of this article details the four primary

ways the Supreme Court has limited state and local action in such

instances: (1) the reading of a dormant foreign affairs power into the

Constitution; (2) heightened statutory and executive agreement

preemption for matters affecting foreign policy; (3) heightened dormant

commerce clause scrutiny in matters affecting foreign commerce; and

(4) making certain claims nonjusticiable under the act of state or

political question doctrines because they implicate foreign relations in a

manner that courts have deemed should not be judged.

These doctrines all find at least part of their justification in the idea

that the nation should speak with “one voice” in foreign affairs. This

“one voice” doctrine is borrowed from principles of international law,

which not only preference, but largely only recognize a univocal nation-

state–primarily the executive branch of the national government. Under

the “one voice” doctrine, the judiciary’s senses become heightened. It

examines disputes before it to see if the federal government’s one voice

might be impaired in foreign relations, sometimes finding that it is even

in situations where the federal government contends it is not. State and

local interests are all too often undervalued or left out of the reasoning

process altogether.

After surveying in Part I these judicially created limitations on

localities’ actions that affect foreign relations, Part II then explores how

international tribunals increasingly circumscribe state and local actions.

Although none of these tribunals’ decisions are directly binding on

11. JENNA BEDNAR, THE MADISONIAN SCHEME TO CONTROL THE NATIONAL GOVERNMENT

21-33 (May 2002), http://www-personal.umich.edu/~jbednar/WIP/madison.pdf.

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localities, these bodies can penalize the United States as a whole for a

locality’s action that brings the U.S. into noncompliance with an

international treaty or agreement. In turn, U.S. courts may find that

these tribunals’ decisions, or simply a tribunal’s attention to a complaint,

constitute enough interference with foreign relations to strike down the

locality’s suspect policy. Indeed, the mere threat of U.S. judicial action

or scrutiny by an international tribunal may in and of itself be enough to

cause a locality to back down from actions it otherwise finds in its

interest.

Part III defends a limited decentralization of foreign relations.

Advocating decentralization in this context is not an argument to

necessarily limit the federal government’s role or its trumping power in

foreign relations, but rather to legitimize localities as actors in foreign

relations as well. The varied voices of the different branches of the

federal government and of U.S. non-governmental actors mean that the

United States has never truly spoken with “one voice” in foreign

relations. Further, there are a number of reasons to believe that

localities’ involvement in many aspects of foreign affairs has a positive

impact. To defend the decentralization of foreign relations, this article

adapts three of the traditional defenses of federalism: the benefits of

having diversity of state and local policies; state and local governments’

check on the power of the federal government; and localities’ ability to

empower citizens. It also addresses three often cited critiques of

federalism that can be applied to localities’ involvement in foreign

relations: the resource constraints of federal subunits; the danger of

empowering or protecting local perpetrations of injustice; and

federalism’s diffusion of accountability.

Part III then argues that courts are ill-suited to determine when

localities’ policies unduly damage U.S. foreign relations. Instead, it is

better to let the executive and legislative branches use their

Constitutional prerogative to decide when to occupy or preempt certain

activities within a field of foreign relations. Therefore, the federal

judiciary should only strike down a state or local law that affects foreign

relations when it is in explicit conflict with the Constitution or has been

validly and clearly preempted by the executive or legislative branches.

Although courts should largely let these other branches regulate state

and local governments’ actions in foreign relations, the federal judiciary

is better suited to regulate both state courts’ involvement in foreign

relations as well as their own. Therefore, a limited invocation of the act

of state and political question doctrines may at times be appropriate to

curtail the judiciary’s enforcement of some federal and state laws.

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Understanding the benefits of a decentralized foreign policy, however,

the federal judiciary should use these doctrines with caution.

Part IV applies the more jurisprudential and theoretical arguments

discussed in Parts I, II, and III to a series of examples of localities’

actions that affect foreign relations. Part IV differentiates these actions

into five categories. Such actions may: (1) foster exchange and

cooperation with other countries; (2) protect or promote local markets

and/or values in a manner that affects foreign relations; (3) judge other

countries’ behavior; or (4) influence the federal government’s foreign

policy. Localities may also (5) adopt or borrow from foreign or

international law. It is chiefly actions that are deemed to protect or

promote local markets and/or values (category two) that are placed under

the greatest scrutiny under international law. Meanwhile, it is both these

protective actions (category two) and actions that judge or criticize other

countries (category three) that raise the greatest level of suspicion under

U.S. jurisprudence. However, Part IV also notes that a restrictive

interpretation of foreign relations law has implications for all five

categories.

The examples in these five categories provide greater context to

understand some of the benefits of decentralizing foreign relations. For

example, state trade missions are designed to foster economic exchange.

Partially decentralizing these missions to the state or local level may

allow for greater economic rewards to the country as a whole than if

such missions were only initiated by the federal government. Localities’

actions that protect and promote local markets and values enable citizens

to have fuller agency over their local communities as well as their own

lives and provide a check against federal or international power. Such

actions may also encourage experimentation and debate over policies at

a local level before similar national policies are implemented or a local

standard gains acceptance across the country.

Local mobilization around a foreign policy issue can also have an

important precedent-setting effect on federal foreign policy. For

example, the South African anti-apartheid divestment movement

engaged citizens in localities across the country. Such local engagement

helps foster human rights moments in which a section of the American

public expresses support for a human rights-based foreign policy.

Arguably, such human rights moments encourage foreign policymakers

to promote similar human rights-based policies in relation to foreign

policy issues the public is less mobilized around.

There have been other proposals to strengthen participatory

democracy outside preserving the democratic role of state or local

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governments. Part V briefly addresses one of these proposals. James

Fishkin and Bruce Ackerman have put forward a strong argument for

having a deliberation day in local neighborhoods around the country

before national elections in which citizens would debate and discuss

amongst themselves the issues of the day. Evidence indicates that such

forums for deliberation do have an impact on voters’ views on foreign

relations. A proposal like deliberation day would likely get a larger

section of the American public to actively engage in issues of foreign

relations than simply ensuring localities retain independence in an

internationally saturated governance environment. However,

strengthening localities’ independence addresses larger federalism

concerns that ideas like deliberation day do not. Instead, such ideas

should be seen as complimentary to a movement towards decentralizing

foreign relations.

In conclusion, this article argues that more than a change in the

mindset of the courts is necessary for localities to be effective foreign

policy actors. The federal government and localities themselves must

also recognize the benefits of decentralization and amend their

governance strategies accordingly. Finally, ordinary citizens need to

actively support a more balanced approach to foreign affairs in which

localities are concurrent actors in foreign relations with the federal

government.

A general theme of this article is that the drafters of the

Constitution did not envision the dominating and pervasive role foreign

relations would play in the United States. As such, the Constitution does

not fully address the balance of power implications of giving the federal

government, and specifically the executive, such a privileged role in

conducting foreign affairs. In Democracy in America, De Tocqueville

remarks on the isolation in which the United States was largely born and

spent its early years “[s]eparated from the rest of the world by the ocean,

and too weak as yet to aim at the dominion of the seas, it has no

enemies, and its interests rarely come into contact with those of any

other nation of the globe.”

He notes the implications of this isolation

on the power of the President within the U.S. constitutional framework:

“[t]he President of the United States possesses almost royal prerogatives

[in foreign relations], which he has no opportunity of exercising; and the

privileges which he can at present use are very circumscribed. The laws

allow him to be strong, but circumstances keep him weak.”

12. De Tocqueville, supra note 1, at 131.

13. Id.

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In light of globalization’s increasing enmeshment of foreign and

domestic relations, this article highlights a double fear. It is not only

that the federal government is given a new opportunity by globalization

to commandeer control over many areas of governance from localities,

but that the executive is strengthened in relation to the other branches.

In this context, citizens’ involvement in foreign relations at a local level

and the promotion of decentralizing foreign policy more generally

should be seen as a method, however imperfect, to regain a safer balance

of power within the government. There may be other ways of creating

this balance within the federal government such as by strengthening the

respective power of Congress or the courts in foreign relations.

Alternatively, more structural changes could be made such as

transforming the U.S. representative to the U.N. into a nationally elected

position.

However, none of these alternatives so clearly engage

citizens at a local level to become politically active in the creation of

foreign policy.

The argument in this article for local democratic participation is

also, perhaps primarily, a humanist one. With more possibility for

participation, we become thicker citizens. We have greater ability to

engage in our communities and in turn more control over and

understanding of our own lives as humans. For Durkheim, government

had its own consciousness. Such a characterization highlighted that

although government at its root might merely be a shared idea in a

community of conscious humans, it could also have its own agency. The

state had its own logic that was removed, and even unknown, from those

that “thought” government into existence. He writes of a democratic

state that “[t]he closer communication becomes between the government

consciousness and the rest of society, and the more this consciousness

expands and the more things it takes in, the more democratic the

character of the society will be.”

For Durkheim, it is the democratic state’s reflection upon its

citizens through its citizens that gave democracy a moral superiority.

13.Although worthy and much needed inquiries, the overall relative merits of these different

suggestions must remain beyond the purview of this article (as must proposals about how to make

U.S. foreign policy more democratically accountable to the rest of the world).

14. E

MILE DURKHEIM, PROFESSIONAL ETHICS AND CIVIC MORALS 84 (Cornelia Brookfield

trans., Greenwood Press 1983) (1957).

15. Id. at 91.

This is what gives democracy a moral superiority. Because it is a system based on

reflection, it allows the citizen to accept the laws of the country with more intelligence

and thus less passively. Because there is a constant flow of communication between

themselves and the State, the State is for individuals no longer like an exterior force that

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When we debate where and how democratic governance will occur, we

are battling over what choreography of thought will define our state and

we as citizens. Such stakes are not easily quantifiable. If our aim in

structuring governance, however, is not to reach definable utopias, but

rather to balance as best we can the competing interests and tensions of

being human and being governed, then we must take into account

governance’s transcendent depths and not just its readily chartable

currents.

U.S. FOREIGN RELATIONS LAW’S MARGINALIZATION OF LOCALITIES

When state and local government actions affect foreign relations,

the Supreme Court’s senses become heightened, finding preemption and

nonjusticiable claims where it would find none in a matter it deemed of

merely domestic concern. This heightened sensitivity is displayed in

four primary ways: (1) the reading of a dormant foreign affairs power

into the Constitution; (2) heightened legislative and executive

preemption for matters affecting foreign policy; (3) heightened scrutiny

for the dormant commerce clause in commerce affecting foreign

relations; and (4) finding some claims related to foreign relations

nonjusticiable under the act of state and political question doctrines.

State and local government actions that affect foreign relations, but are

not expressly preempted by Congress, the executive, or the Constitution,

can be challenged and struck down under any one of these doctrines.

The law in this area, however, remains unsettled and underdeveloped

leaving many questions unanswered about the constraints it imposes on

localities’ involvement in foreign affairs.

1. Dormant Foreign Affairs Power

In Zschernig v. Miller,

the Supreme Court held that the structure

of the Constitution implied a dormant foreign affairs power that could

preempt certain state laws that affected foreign relations.

Such a state

law did not have to conflict with any explicit federal law or policy to be

preempted.

In fact, in Zschernig, the government filed an amicus

imparts a wholly mechanical impetus on them. Owing to constant exchanges between

them and the State, its life becomes linked with theirs, just as their life does with that of

the State.

Id.

16. 389 U.S. 429 (1968).

17. Id. at 440-41.

18. Id. at 441.

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supporting the state’s position and denying it conflicted with federal

policy.

The Oregon statute at issue in Zschernig v. Miller prohibited

inheritance by non-resident aliens unless they could show the property

they inherited would not be confiscated by their home country.

Additionally, these non-resident aliens had to show that American

citizens enjoyed reciprocal rights of inheritance in the non-resident

aliens’ home country.

The Court found that this statute gave Oregon

courts reason to probe and criticize the law of authoritarian and

Communist regimes

and in so doing intruded into a “domain of

exclusively federal competence.”

Justice Douglas distinguished the

facts in Zschernig from the facts in Clark v. Allen (where the Court had

upheld a similar California statute 20 years earlier)

by claiming that the

statute in Clark only had “some incidental or indirect effect on foreign

relations”

while the statute in Zschernig “affect[ed] international

relations in a persistent and subtle way.”

In particular, it enmeshed

courts into probing the laws of foreign governments in a manner that

might be considered provocative during the Cold War.

This judgment

of other countries by the courts could “adversely affect the power of the

central government to deal with those problems,”

thereby weakening

the federal government’s position in foreign relations.

In his concurrence, Justice Harlan argued that the Oregon statute by

itself did not infringe on the federal foreign relations power and such a

broad reading of preemption in foreign relations could not be supported

by prior precedent.

He observed that the majority had not shown that

the Oregon statute had caused adverse effects on foreign policy.

The

mere possibility that the statute could have such adverse consequences

should not be determinative, he argued, as many state court decisions of

purely domestic concern had the possibility of raising criticism of

foreign nations.

Instead, Justice Harlan found that the Oregon statute

19. Id. at 434.

20. Id. at 430 n.1.

21. Id.

22. Id. at 440.

23. Id. at 442 (Stewart, J., concurring).

24. Clark v. Allen, 331 U.S. 503 (1947).

25. Zschernig, 389 U.S. at 434 (quoting Clark v. Allen, 331 U.S. 503 (1947)).

26. Id. at 440.

27. Id.

28. Id. at 441.

29. Id. at 443-62. (Harlan, J., concurring).

30. Id. at 461.

31. Id.

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conflicted with U.S. treaty obligations with Germany and, therefore,

should be found unconstitutional.

Justice White dissented in Zschernig

agreeing with Justice Harlan’s analysis that dormant foreign affairs

preemption should not be applied to the Oregon statute, but disagreeing

that the Oregon statute conflicted with any U.S. treaty obligations.

Zchernig left unclear the reach of dormant foreign affairs

preemption. Under a wide reading of Zschernig, any state action that

had more than “incidental or indirect”

effect on foreign countries or

carried the “potential for disruption or embarrassment to”

the federal

government’s conduct of foreign relations could be struck down by the

court. Such a sweeping reading would bar any state laws that directly

affected foreign relations and even those that did not if they were

potentially disruptive or embarrassing to U.S. foreign relations. Under a

less encompassing view, states could interfere in portions of the field of

foreign relations as long as their actions did not in fact adversely affect

the power of the federal government to conduct foreign relations. One

could also read Zschernig to hold that dormant foreign affairs

preemption could only be invoked if it involved “a state policy critical of

foreign governments and involve[d] ‘sitting in judgment’” of these

foreign governments.

Finally, Zschernig could be read very narrowly

confining it to cases with similar facts–in Zschernig the state court had

been unusually critical and inflammatory of its judgment of a communist

government during a time of heightened Cold War tensions. This

narrow interpretation of Zschernig is supported by the Court’s

unwillingness to overrule Clark v. Allen, which was a case with

substantively similar facts, but that took place in a different historical

and political context twenty years earlier.

The Supreme Court has not based another decision on the dormant

foreign affairs power.

As will be discussed, however, dormant foreign

affairs preemption has been invoked, although not relied upon, to expand

32. Id. at 443.

33. Id. at 462.

34. Id. at 434 (majority opinion) (quoting Clark v. Allen, 331 U.S. 503 (1947)).

35. Id. at 435.

36. L

OUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 164 (2d ed.

1996), cited in Am. Ins. Ass’n v. Garamendi, Ins. Comm’n, 539 U.S. 396, 439 ( 2003) (Ginsburg, J.,

dissenting).

37. Brannon Denning & Michael Ramsey, American Insurance Association v. Garamendi and

Executive Preemption in Foreign Affairs, 46 W

M AND MARY L. REV. 825, 857 (2004).

38. Garamendi, 539 U.S. at 439 (Ginsburg, J., dissenting). Justice Ginsburg noted in her

dissent that Zschernig has not been relied on since it was decided. Id. She did not suggest,

however, that it should be overturned. Id.

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executive agreement preemption in Am. Ins. Ass’n v. Garamendi

2003. The continued ambiguity surrounding the sweeping doctrine

Zschernig suggests has created much uncertainty about the scope of

judicial preemption of localities’ actions that affect foreign relations.

2. Statutory and Executive Agreement Preemption

A. Statutory Preemption

In 2000, in Crosby v. National Foreign Trade Council the Supreme

Court articulated a heightened legislative preemption doctrine for

matters affecting foreign relations.

The National Foreign Trade

Council (which represents many of the largest foreign companies

operating in the United States) challenged a Massachusetts selective

purchasing law that generally barred Massachusetts state entities from

buying goods or services from companies that did business with

Burma.

Massachusetts had enacted the statute in protest over the

Burmese government’s notorious human rights abuses against its own

people.

In a unanimous decision, the Supreme Court found that the

selective purchasing law was preempted by federal legislation that

created a national sanctions regime towards Burma.

The court reached

this conclusion even though the national sanctions regime did not

explicitly declare that states could not take punitive economic actions

toward Burma on their own.

According to the Court, however, the

Massachusetts law undermined “the intended purpose and ‘natural

effect’” of three provisions of the federal sanctions regime: (1) the

legislation’s delegation of discretion to the President to control

economic sanctions against Burma; (2) its limitation of sanctions only to

United States persons and new investment; and (3) its directive to the

President to develop a national multilateral strategy toward Burma.

The Court argued that the Massachusetts legislation, by acting

outside this national sanctions regime, weakened the President’s

capacity for effective diplomacy.

The Court noted:

39. 539 U.S. 396 (2003).

40. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000).

41. Id. at 367, 371.

42. See id. at 367.

43. Id. at 388.

44. Id. at 372.

45. Id. at 374.

46. Id. at 381.

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[U]nyielding application [of the Massachusetts legislation] undermines

the President’s intended statutory authority by making it impossible for

him to restrain fully the coercive power of the national economy when

he may choose to take the discretionary action open to him, whether he

believes that the national interest requires sanctions to be lifted, or

believes that the promise of lifting sanctions would move the Burmese

regime in the democratic direction. Quite simply, if the Massachusetts

law is enforceable the President has less to offer and less economic and

diplomatic leverage as a consequence.

The Court made clear that there was heightened statutory

preemption of state law in cases affecting foreign policy. In particular,

the Court stated that it would give added weight to the opinion of the

executive branch in such cases

and even consider the reactions of

foreign powers to the state law at issue.

In other words, there did not

have to be as explicit a conflict in these cases with federal legislation for

preemption.

B. Executive Foreign Relations Power Preemption

Three years after the Supreme Court found heightened statutory

preemption in matters affecting foreign relations in Crosby, the Court

was confronted with the preemptive status of executive agreements in

Garamendi. Writing for the majority, Justice Souter found that like

legislation that ordered our relations with other countries executive

agreements with other nations could preempt state law even when there

was no direct conflict between the state law and executive agreement.

Until Garamendi the Court had only held that executive agreements

preempted state law where conflict between them was explicit.

In Garamendi, a California law required insurers to disclose

information about policies sold in Europe between 1920 and 1945 in an

47. Id. at 377.

48. The court stated that they had “consistently acknowledged that the ‘nuances’ of ‘the

foreign policy of the United States . . . are much more the province of the Executive Branch and

Congress than of this Court[.]” Id. at 385-86 (quoting Container Corp. of Am. v. Franchise Tax Bd.,

463 U.S. 159, 194 (1983)).

49. Crosby, 530 U.S. at 385.

50. Garamendi, 539 U.S. at 416.

51. See United States v. Belmont, 301 U.S. 324 (1937) (finding international compact with

Soviet Union undertaken by the President validated alleged confiscation of property); United States

v. Pink, 315 U.S. 203 (1942) (holding that executive agreement with Soviet Union that settled

claims against nationalized insurance company barred further claims of this type); Dames & Moore

v. Regan, 453 U.S. 654 (1981) (finding executive orders that created Iran Claim Tribunal preempted

petitioners claims against Iran in U.S. courts).

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attempt to help Holocaust survivors more easily bring claims against

these insurance companies.

Justice Souter held that the California law

was preempted by an executive agreement which encouraged Germany

to create a voluntary compensation fund as the sole form of relief for

Holocaust victims of Nazi-era insurance company crimes.

The

executive agreement, however, was silent on state information disclosure

laws.

In showing a conflict with federal policy, the Court in Garamendi

drew parallels between the California legislation and the Massachusetts

legislation at issue in Crosby.

Justice Souter noted that both pieces of

legislation affected the ability of the President to negotiate with other

countries and frustrated the mechanism of operation the President had

chosen to conduct foreign policy on a particular issue.

The leap from a

broad reading of statutory preemption in foreign relations (where both

the executive and legislature were acting in concert) to a similarly wide

understanding of executive agreement preemption was novel, not to

mention questionable based on past precedent.

In dicta the Court left open the possibility for dormant foreign

affairs preemption in the case, hinting that the decision in Zschernig

might not be as anomalous as some had concluded or hoped.

Although

the Court did not directly rely on the precedent of Zschernig, it used it as

a mask of legitimacy for a precarious expansion of executive conflict

preemption in foreign affairs. Instead of relying on the dormant foreign

affairs power, the Court explained it would use the more traditional logic

of conflict preemption for its decision.

As already noted though, this

preemption analysis was anything but traditional.

Coining a new term,

the Court found an expansive “executive foreign relations power” which

preempted state laws with executive agreements.

In determining a standard for when an executive agreement would

preempt state law, Justice Souter borrowed from the muddied waters of

Zschernig. He categorized the majority’s opinion in Zschernig as

preempting state actions from the entire field of foreign relations (i.e.,

52. Garamendi, 539 U.S. at 401, 410.

53. Id. at 420.

54. Id. at 438 (Ginsburg, J., dissenting).

55. Id. at 423 (majority opinion).

56. Id. at 424.

57. Denning, supra note 37, at 831.

58. Garamendi, 539 U.S. at 439 (Ginsburg, J., dissenting); Denning, supra note 37, at 856-57.

59. Garamendi, 539 U.S. at 420.

60. Id.

61. Id. at 419.

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preempting all state actions that had more than an “incidental” or

“indirect” effect on foreign relations)

and Justice Harlan’s concurrence

as advocating preemption only in the case of conflict with express

federal policy in foreign relations.

Justice Souter then found that under

either analysis presented in Zschernig the California legislation would be

preempted.

The majority in Garamendi did not decide which of these–

field or conflict preemption–would apply to the “executive foreign

relations power.”

In a footnote, Justice Souter, however, hinted they

might both be applicable:

The two positions can be seen as complementary. If a State were

simply to take a position on a matter of foreign policy with no serious

claim to be addressing a traditional state responsibility, field

preemption might be the appropriate doctrine . . . . Where, however, a

State has acted within what Justice Harlan called its ‘traditional

competence,’ . . . but in a way that affects foreign relations, it might

make good sense to require a conflict, of a clarity or substantiality that

would vary with the strength or the traditional importance of the state

concern asserted. Whether the strength of the federal foreign policy

interest should itself be weighed is, of course, a further question.

Although the language is ambiguous, it would seem that when

faced with a state act that affects foreign relations the first test is to

determine if the act is “addressing a traditional state responsibility.”

it is not, then it is presumably void under the dormant foreign relations

power. This portion of the test, which importantly is in dicta, adopts a

broad reading of Zschernig to be applied to state foreign relations

actions where there is no traditional state responsibility.

The second part of the test is invoked if the suspect state action is in

its traditional domain. It weighs the interest of the state in the policy at

issue against the clarity of the conflict.

Justice Souter rests the

decision on this second part of the test and Justice Harlan’s view in

Zschernig that if any state policy conflicts with the federal government’s

foreign policy it is preempted.

To determine what severity of conflict

is necessary, the Court should weigh the respective state and national

62. Id. at 418.

63. Id. at 419.

64. Id. at 420.

65. Id. at 419-20.

66. Id. at 420 n.11.

67. Id.

68. Denning, supra note 37, at 926-27.

69. Garamendi, 539 U.S. at 420 n.11.

70. Id.

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interests involved.

Justice Souter found that the California legislation

at issue was sufficiently in conflict with an executive agreement to merit

preemption and held on these grounds.

It is not clear from Garamendi whether the “executive foreign

relations power” needs to be articulated through an executive agreement

to preempt state actions. Indeed, in Garamendi the Court uses

statements made by sub-cabinet level officials to support the position

that the California law was in conflict with the executive agreement.

Statements like these could potentially be used in the future to preempt

state legislation without even the need for an executive agreement under

a broad theory of the executive foreign relations power.

3. Dormant Foreign Commerce Clause

The use of heightened preemption is not just confined to statutory

or executive agreement preemption, but also extends to the dormant

commerce clause.

The Court has moved away from a far-reaching

interpretation of the dormant foreign commerce clause to one that much

more closely resembles ordinary dormant commerce clause preemption.

Such a move is welcome, but may come under threat if the logic of

Garamendi is applied to future dormant foreign commerce clause cases.

In Japan Line, Ltd. v. County of Los Angeles, the Court indicated

that the dormant commerce clause has greater reach when applied to

international commerce.

It held that “[shipping containers] that are

owned, based, and registered abroad and that are used exclusively in

international commerce [could not be] subjected to apportioned ad

valorem property taxation by [California].”

According to the Court,

when a state attempts to tax containers in foreign commerce, as opposed

to merely interstate commerce, there is an increased risk of multiple

taxation (since it is difficult for states to coordinate their taxation

71. Id.

72. Id. at 420.

73. Id. at 411; id. at 441-42 (Ginsberg, J., dissenting).

74. The Supreme Court has long held that state laws that are “inimical” to interstate

commerce will be struck down even if Congress has not acted. See, e.g., Southern Pacific Co. v.

Arizona ex rel. Sullivan, 325 U.S. 761, 769 (1945); S.C. Highway Dep’t v. Barnwell Bros., 303

U.S. 177, 185 (1938); City of Phila. v. New Jersey, 437 U.S. 617, 627 (1978).

75. 441 U.S. 434, 448 (1979) (“Although the Constitution, Art. I, § 8, cl. 3, grants Congress

power to regulate commerce ‘with foreign Nations’ and ‘among the several States’ in parallel

phrases, there is evidence that the Founders intended the scope of the foreign commerce power to be

the greater.”).

76. Id. at 434-45.

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schemes with foreign countries).

Further, the California tax

undermined the ability of the federal government to “[speak] with one

voice” when regulating foreign commerce.

In 1986, the Court limited the impact of Japan Line in Wardair

Canada, Inc. v. Fla. Dep’t of Revenue.

In Wardair the Court upheld a

Florida aviation fuel tax despite the applicant’s and the United States’

claim as amicus curiae that the tax “threaten[ed] the ability of the

Federal Government to ‘speak with one voice.’”

The Court clarified

that although they found that the tax in Japan Lines prevented the

Federal Government from speaking with one voice in foreign relations

they did not thereby suggest that “the Foreign Commerce Clause insists

that the Federal Government speak with any particular voice.”

In 1993, in Itel Containers Intern Corp. v. Huddleston the Court

upheld a Tennessee tax on containers where that tax avoided imposing

multiple taxation

and the U.S. government had submitted an amicus

brief supporting the state tax.

Japan Line was further limited in

Barclays Bank v. Franchise Tax Board in 1994.

In Barclays, Justice

Ginsburg, writing for the Court, upheld California’s system of taxing a

portion of foreign corporations’ worldwide operations. The Court first

found that California’s tax system did not violate the interstate

commerce clause as traditionally applied domestically.

The Court then

found that the risk of double taxation was acceptable as long as it was

not an “inevitable result” of the California taxation scheme and that an

alternative taxing scheme “could not eliminate the risk of double

taxation.”

Importantly, the Court also required that Congress indicate

that it intended to bar the taxation system in order for there to be a

conflict with the country’s “one voice” in foreign relations.

Although

major trading partners had objected to the tax, the Court concluded that

by not specifically prohibiting California’s taxation system Congress had

“passively indicate[d] that certain state practices do not ‘impair federal

uniformity in an area where federal uniformity is essential.’”

Justice

77. Id. at 446.

78. Id. at 452.

79. 477 U.S. 1 (1986).

80. Id. at 9.

81. Id. at 13.

82. 507 U.S. 60, 74 (1993).

83. Id. at 75.

84. 512 U.S. 298 (1994).

85. Id. at 314.

86. Id. at 318-19.

87. Id. at 324.

88. Id. at 323 (quoting Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 448 (1979)).

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Ginsburg also rejected the petitioner’s claim that executive statements

demonstrated that the California taxing system interfered with the

federal government’s ability to speak with a uniform voice.

She found

that it is Congress, and not the executive, that is given the power to

regulate commerce under the Commerce Clause.

Wardair, Itel, and Barclays limited the heightened nature of the

dormant foreign commerce clause that was upheld in Japan Line.

Garamendi, however, which was decided after Barclays, raises new

questions about this jurisprudence. If there are strong executive

statements or orders surrounding a commerce clause issue, the Court

might find preemption under the executive foreign relations power or

give such executive branch actions new weight under the dormant

foreign commerce clause.

4. Act of State and Political Question Doctrines

The act of state and political question doctrines both limit

justiciability. Courts often use these doctrines to refuse to hear issues

that could potentially affect foreign relations. In relinquishing their role

as arbitrators of these disputes, state law or state common law is often

simply not enforced. As such, courts can use these doctrines to limit the

impact of localities’ actions that affect foreign affairs.

In Banco Nacional de Cuba v. Sabbatino, the Supreme Court

assumed the competence to trump state law to create judicial rules of

decision of particular importance to foreign relations, such as the act of

state doctrine.

The act of state doctrine is not found in the

Constitution, but is instead a judicially created doctrine that “arises out

of the basic relationships between branches of government in a system

of separation of powers.”

Its classic formulation is that “the courts of

one country will not sit in judgment on the acts of the government of

another, done within its own territory.”

Like Garamendi, Crosby, and

Zschernig, the general finding of Sabbatino is that normal lawmaking

gives way when a dispute has international implications.

89. Id. at 328-29.

90. Id. at 329.

91. 376 U.S. 398, 425 (1964) (“[W]e are constrained to make it clear that an issue concerned

with a basic choice regarding the competence and function of the Judiciary and the National

Executive in ordering our relationships with other members of the international community must be

treated exclusively as an aspect of federal law.”).

92. Id. at 423.

93. Id. at 416 (quoting Underhill v. Hernandez, 168 U.S. 250, 252 (1897)).

94. Paul B. Stephan, International Governance and American Democracy, 1 C

HI. J. INT’L L.

237, 240 (2000).

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The act of state doctrine does not apply to every situation in which

a state’s actions are called into question. The Court in Sabbatino laid

out two considerations to help determine when the act of state doctrine

should apply. First, “the less important the implications of an issue are

for our foreign relations,” the more likely the court will not invoke the

act of state doctrine.

Second, “the greater the degree of codification or

consensus concerning a particular area of international law” that the

court is being asked to apply to a state’s actions, the more likely the

court will not invoke the doctrine.

Later cases have even further

constrained the doctrine.

A court will take into consideration the

opinions of the executive branch in a potential act of state doctrine case,

but the courts have treated the executive branch’s observations as only

one relevant factor of consideration and not binding.

The political question doctrine is invoked by courts when they feel

absolute deference to the other branches of government is appropriate.

95. Sabbatino, 376 U.S. at 428.

96. Id. The Second Hickenlooper Amendment, 22 U.S.C. § 2370(e)(2) (1982), passed by

Congress effectively overrode the specific outcome of Sabbatino by making it clear that an

uncompensated government taking is a clear violation of international law in which the Act of State

doctrine would not be applicable. See West v. Multibanco Comermex, S.A., 807 F.2d 820, 829

(1987).

97. E.g., W.S. Kirpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400 (1990) (finding that

the doctrine does not apply when a court only incidentally makes a factual judgment about an act of

state that may embarrass a foreign government); Alfred Dunhill of London, Inc. v. Republic of

Cuba, 425 U.S. 682 (1976) (finding the act of state doctrine does not protect foreign sovereigns

when they are acting in purely commercial areas); Republic of the Philippines v. Marcos, 862 F.2d

1355 (9th Cir. 1988) (finding that the burden of proof that the acts at issue were acts of state rests on

the one claiming the doctrine applies); Republic of Iraq v. First Nat’l City Bank, 353 F.2d 47 (2d

Cir. 1965) (finding act of state doctrine does not apply to actions sovereign takes to confiscate

property in the United States).

98. First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 790 (1972) (Brennan, J.,

dissenting). In First National City Bank, three Supreme Court justices in the five justice majority

upheld the use of the Bernstein exception which gives the executive branch authority to override the

act of state doctrine. Id. at 768 (plurality opinion). Under this exception, if the executive makes

clear that it does not want the courts to be barred from hearing a case under the act of state doctrine

a court would then proceed with the case without applying the act of state doctrine. Id. However,

one justice did not feel that the Bernstein exception needed to be applied in the case. Id. at 773

(Douglas, J., concurring). Further, one justice in the plurality and four justices in the minority

rejected the Bernstein exception. Id. (Powell, J., concurring); id. at 792 (Brennan, J., dissenting).

Since then, lower courts have generally treated executive suggestions as relevant, but not

dispositive.

99. Baker v. Carr, 369 U.S. 186, 210 (1962). The Court found that on the surface of any case

involving a political question there is at least one of the following formulations:

[A] textually demonstrable constitutional commitment of the issue to a coordinate

political department; or a lack of judicially discoverable and manageable standards for

resolving it; or the impossibility of deciding without an initial policy determination of a

kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking

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The judiciary has found such deference may be necessary in cases that

involve the foreign policy decisions of the executive and legislative

branches of the United States. Many times, this abdication of decision-

making power to the other branches of the federal government affects

localities’ interests. For example, in Made in the USA Foundation v.

United States, the Eleventh Circuit found that the question of whether

the Senate must ratify the North American Free Trade Agreement

(NAFTA) by the two-thirds of the Senate required for treaty ratification

was a nonjusticiable political question.

100

As will be discussed later in

this article, NAFTA has far ranging implications for localities’ interests,

but the judiciary refused to even consider whether the United States had

properly bound itself to the agreement.

In 2006, at least three negligence suits against private contractors

whose employees were killed in Iraq were removed from state court and

dismissed from federal district court on the basis of the political question

doctrine.

101

The courts who heard these cases held that even though it

was private contractors whose actions were in question a decision in

these cases would necessarily implicate the actions and judgments of the

U.S. military.

102

In this way, the political question doctrine can be

applied to not only the actions of the federal government, but also to

those whose actions are intertwined in the federal government’s policies.

II.

INTERNATIONAL LAW’S IMPACT ON LOCALITIES

International law has increasingly scrutinized state and local

government policies. These challenges have come primarily in the areas

of trade and human rights. The arbitrators of international agreements

do not have the power to directly strike down offending state or local

statutes or policies, but can penalize or reprimand the United States as a

whole, thereby imposing collective national punishment for state or local

action.

103

independent resolution without expressing lack of the respect due coordinate branches of

government; or an unusual need for unquestioning adherence to a political decision

already made; or the potentiality of embarrassment from multifarious pronouncements

by various departments on one question.

Id. at 217.

100. 242 F.3d 1300 (2001).

101. Fisher v. Halliburton, Inc., 454 F. Supp. 2d 637, 644 (S.D. Tex. 2006); Smith v.

Halliburton Co., No. H-06-0462, 2006 U.S. Dist. LEXIS 61980, at *26 (S.D. Tex Aug. 30, 2006);

Whitaker v. Kellogg Brown & Root, Inc., 444 F. Supp. 2d 1277, 1282 (M.D. Ga. 2006).

102. Fisher, 454 F. Supp. 2d at 644; Smith, 2006 U.S. Dist. LEXIS 61980, at *20; Whitaker,

444 F. Supp. 2d at 1282.

103. See Vienna Convention on the Law of Treaties art. 27, May 23, 1969, 1155 U.N.T.S. 331.

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Investors have used Chapter Eleven of NAFTA to challenge state

and local laws and judicial decisions.

104

In October 2002, in Mondev

International Ltd. v. United States a Chapter Eleven Arbitral Tribunal

rejected a NAFTA challenge by a Canadian real estate developer to a

decision by the Massachusetts Supreme Judicial Court.

105

The Chapter

Eleven Tribunal held that the Massachusetts court’s decision to deny the

developer relief did not constitute a breach of Article 1105 of NAFTA,

which specified certain minimum standards of treatment for investors in

accordance with international law.

106

In particular, it found that the

Massachusetts court’s decision that the Massachusetts legislature had

legally extended limited immunity from liability to the Boston

Redevelopment Agency did not breach Article 1105.

107

The tribunal

indicated though that some types of immunity from liability, even if

granted by the legislature, would be barred by Article 1105.

108

In June 2003, in Loewen Group, Inc. v. United States, a Chapter

Eleven Arbitration Tribunal examined a multi-hundred million-dollar

Mississippi jury award against a Canadian company.

109

The company

had argued that the award was exorbitant and was the outcome of

protectionist appeals to the jury.

110

The NAFTA Tribunal rejected the

complaint on jurisdictional grounds, finding that all avenues of appeal

had not been exhausted in U.S. courts.

111

Further, through corporate

restructuring the Canadian company who brought the case had

effectively become a U.S. company, thereby barring it from challenging

its own government under NAFTA.

112

Despite dismissing the complaint

on these jurisdictional grounds, the Tribunal did find that the actions of

the Mississippi courts had violated Article 1105 of NAFTA and that the

company would have been entitled to recover if not for the jurisdictional

104. NAFTA’s dispute settlement mechanisms are found in Chapter Eleven, Nineteen, and

Twenty. See North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M.

605, 639-99 [hereinafter NAFTA]. This article primarily deals with cases that have arisen under

Chapter Eleven of NAFTA, which guarantees certain standards of treatment and non-discrimination

for investors from NAFTA’s other member-parties. Id. ch. 11, 32 I.L.M. 639-49.

105. Mondev Int’l Ltd. v. United States, ICSID Case No. ARB(AF)/99/2 (NAFTA Ch. 11 Arb.

Trib. Oct. 11, 2002), available at http://www.state.gov/documents/organization/14442.pdf.

106. Id. at 55.

107. Id. at 58.

108. Id. at 54-55.

109. ICSID Case No. ARB(AF)/98/3 (NAFTA Ch. 11 Arb. Trib. June 26, 2003), available at

http://www.state.gov/documents/organization/22094.pdf.

110. Id. at 2-3.

111. Id. at 61.

112. Id. at 67.

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faults in its case.

113

Taken together these two cases might represent a foundational

moment in which NAFTA tribunals ensured future jurisdiction for

similar claims while denying relief for these two specific claims.

114

These decisions laid out flexible standards for determining similar cases

that could easily be interpreted to give NAFTA tribunals broad

jurisdiction in the future. For example, in Mondev to determine whether

there had been a denial of justice under Article 1105 the tribunal created

the following nebulous test:

In the end the question is whether, at an international level and having

regard to generally accepted standards of the administration of justice,

a tribunal can conclude in the light of all the available facts that the

impugned decision was clearly improper and discreditable, with the

result that the investment has been subjected to unfair and inequitable

treatment.

115

A Chapter Eleven tribunal has already found that actions by local

government officials in Mexico violated NAFTA. In Metalclad v.

United Mexican

States, Metalclad, a U.S. waste disposal company,

claimed that it had been invited to build a landfill site in Guadalcazar

and was assured by government officials that a needed municipal permit

was a mere formality.

116

Metalclad began construction of the site, but

“local [community] opposition resulted in the [m]unicipality denying a

construction permit [in] 1995 and [receiving] an injunction in Mexican

courts to prevent operation of the site.”

117

In August of 2000, the

NAFTA tribunal found that Articles 1105 and 1110 of NAFTA had been

violated.

118

In particular, the Mexican government had breached

NAFTA transparency requirements.

119

Further, the tribunal found that

denial of a construction permit to which Metalclad was otherwise legally

entitled amounted to an expropriation of Metalclad’s property under

NAFTA.

120

The tribunal awarded Metalclad nearly $16.7 million in

113. Id. at 70.

114. J

OHN D. ESCHEVERRIA, GEORGETOWN ENVTL. LAW & POLICY INST., LOWEN, MONDEY

AND

REVIEW OF U.S. JUDICIAL RULINGS BY INTERNATIONAL ARBITRATION PANELS (2003),

http://www.law.georgetown.edu/gelpi/research_archive/trade/LoewenMondev.pdf.

115. Id. at 7.

116. Metalclad Corp. v. Mexico, ICSID Case No. ARB(AF)/97/1, at 14 (NAFTA Ch. 11 Arb.

Trib. Aug. 30, 2000), available at http://www.worldbank.org/icsid/cases/mm-award-e.pdf.

117. Simon Baughen, Expropriation and Environmental Regulation: The Lessons of NAFTA

Chapter Eleven, 18 J. Envtl. L. 207, 220 (2006).

118. Id. at 221.

119. Id.

120. Id.

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damages.

121

NAFTA is not the only international trade agreement which affects

state and local laws and regulations. GATT, the WTO trade dispute

panels, and the WTO’s appellate body have found the United States to

be in breach of its trade commitments because of state policies.

In 1992, a GATT panel found that federal and state differential

treatment for in-state and domestic alcohol brewers in regards to taxes,

tax credits, and regulations violated GATT.

122

The decision has

potentially larger implications because the GATT panel found that the

U.S. government was responsible for state law in violation of GATT.

The panel examined U.S. law and found that since GATT was part of

federal law the federal government could override inconsistent state law

under the commerce clause.

123

Further, after reviewing U.S. Supreme

Court precedent the panel concluded that “the Twenty-first Amendment

grants broad police powers to the states to regulate the distribution and

sale of alcoholic beverages but does not grant the states powers to

protect in-state producers of alcoholic beverages against imports of

competing like products.”

124

Finding no barrier to the federal

government enforcing its findings against the states, the panel dismissed

any suggestion to the contrary as merely pretext for noncompliance.

125

The United States has a duty under GATT to take reasonable

measures to ensure observance of the provisions of the agreement by

regional and local governments.

126

No GATT panel, however, has yet to

directly address a situation in which it found the state party did not have

the power to change the offending law of a governmental subunit.

127

there was such a finding it is unclear whether this would affect a

country’s obligations for compliance under GATT.

In November 2004, a WTO panel found that certain U.S.

restrictions on overseas gambling violated the General Agreement on

Trades in Services (GATS). Antigua, who brought the complaint, only

121. Metalclad, ICSID Case No. ARB(AF)/97/1, at 35.

122. Report of the Panel, United States – Measures Affecting Alcoholic and Malt Beverages

(June 19, 1992), GATT B.I.S.D. (39th Supp.) at 206 (1993).

123. Id. ¶ 5.45.

124. Id. ¶ 5.46.

125. Id. ¶ 6.

126. General Agreement Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194.

“Each contracting party shall take such reasonable measures as may be available to it to ensure

observance of the provisions of this Agreement by the regional and local governments and

authorities within its territories.” Id. at art. XXIV.

127. Edward T. Hayes, Changing Notions of Sovereignty and Federalism in the International

Economic System: A Reassessment of WTO Regulation of Federal States and the Regional and

Local Governments Within Their Territories, 25 N

W. J. INT’L L. & BUS. 1, 30 (2004).

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generally stated in its written and oral submissions that state laws

restricting gambling might be in violation of GATS, while the focus of

its complaint was on U.S. federal law.

128

The panel, however, reviewed

eight state laws that restricted online gambling, and found that four of

them were inconsistent with GATS.

129

The panel also found that

provisions of U.S. federal law restricting online gambling were in

violation of America’s GATS obligations.

130

In April 2005, a WTO appellate panel reversed the decision of the

November 2004 panel in regards to the state laws. The appellate panel

found that since Antigua did not detail how the state laws violated

GATS in its submissions it had not established a prima facie case of

inconsistency. The lower panel was therefore wrong to examine these

state laws when they had not been seriously contested by either side.

131

The appellate panel did not find that the state laws in question were

consistent with America’s GATS obligations or they could not be

challenged in the future, only that Antigua had not made a prima facie

case of inconsistency. The lower panel’s decision demonstrates that

WTO panels are willing to find that state laws conflict with WTO

obligations. It also shows Antigua might have some likelihood of

success if it challenged state laws that restricted online gambling in the

WTO in the future.

Although striking down the lower panel’s finding against state

laws, the April 2005 appellate panel decision held that certain U.S.

federal laws restricting online gambling were inconsistent with GATS.

In 2006, the United States adopted a bill that outlawed banks and other

financial institutions from processing online gambling transactions.

132

March 2007, a WTO panel found that the U.S. had yet to comply with

the April 2005 appellate panel decision.

133

It is still uncertain how this

ongoing controversy will be resolved and if state laws restricting online

gambling will eventually be challenged by Antigua in the WTO.

It is likely that the number of challenges made to state and local

128. Panel Report, United States – Measures Affecting the Cross-Border Supply of Gambling

and Betting Services, WT/DS285/AB/R (April 7, 2005), par. ¶¶ 149-50.

129. Id. ¶¶ 151-52.

130. Id. ¶ 5

131. Id. ¶¶ 149-56

132. US Online Law Takes Effect, BBCC

ARIBBEAN.COM, Oct. 13, 2006,

http://www.bbc.co.uk/caribbean/news/story/2006/10/061013_antiguagaming.shtml (last visited Apr.

21, 2007).

133. Antigua Scores Again Over the US, BBCC

ARIBBEAN.COM, Mar. 30, 2007

http://www.bbc.co.uk/caribbean/news/story/2007/03/070330_antiguawto3003.shtml (last visited

May 3, 2007).

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regulations and judicial decisions will only increase in the WTO and

under international trade agreements like NAFTA. Meanwhile, the

United States also has responsibilities under a number of international

human rights and labor agreements to which it is a party. Unlike under

trade agreements, in which trade penalties can be levied against the

United States for noncompliance, the United States cannot be punished

for noncompliance with human rights agreements beyond reprimand and

bringing international attention to the breach.

The actions of localities have come to the attention of the oversight

bodies of several of the human rights agreements. The UN Human

Rights Commission that monitors compliance with the International

Covenant on Civil and Political Rights requires periodic reports from

states that have ratified the Covenant. In July 2006, when the United

States submitted its report, Commission members raised concerns about

a number of state and local policies.

134

These concerns ranged from a

proposal to punish child sex offenders with the death penalty in South

Carolina, police brutality in Chicago, disenfranchisement of criminals in

Florida, the death of the homeless during a heat wave in Arizona, and

widespread disenfranchisement in New Orleans in the wake of

Hurricane Katrina.

135

Members also made observations that implicated

state and local governance more generally from racial profiling by local

law enforcement to the high number of juveniles sentenced to life

imprisonment without parole.

136

The Inter-American Commission on

Human Rights has heard several cases which implicate states actions that

charge the U.S. is in violation of its commitments under the American

Declaration of the Rights and Duties of Man.

137

The new Human Rights

Council has mandatory reporting procedures for members of the United

Nations

138

that will inevitably place U.S. state and local action that

affects human rights under international scrutiny.

Although not specifically a human rights tribunal, the International

Court of Justice has enforced consular rights in cases involving the death

penalty. In Avena, the ICJ found that 54 Mexican nationals on the death

134. See generally U.N. Int’l Covenant on Civil and Political Rights, Human Rights Comm.,

Consideration of Reports under Article 40 of the Covenant, U.N. Doc. CCPR/C/Sr.2380 (July 27,

2006).

135. Id.

136. Id.

137. Most of these cases involve the use of the death penalty by states. E.g., Javier Suarez

Medina v. United States, Case 12.421, Inter-Am. C.H.R., Report No. 91/05, OEA/Ser.L/V/II.124,

doc. 5 (2005) available at http://www1.umn.edu/humanrts/cases/91-05.html.

138. G.A. Res. 251, U.N. GAOR, 60th Sess., at 5(e), U.N. Doc. A/60/L.48 (2006), available at

http://www.ohchr.org/english/bodies/hrcouncil/docs/A.RES.60.251_En.pdf

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rows of various states had not been given their consular rights in

violation of the Vienna Convention on Consular Relations.

139

The ICJ

ordered the United States to review and reconsider their cases.

140

The

United States accepted the ruling, and President Bush issued a

memorandum to the Attorney General directing the states to abide by the

decision.

141

It is unclear whether states are bound by Bush’s memo or

the I.C.J. decision.

142

As a result of this controversy, the United States

has withdrawn from the Optional Protocol to the Vienna Convention on

Consular Relations, which gave the ICJ jurisdiction over claimed

violations of the Convention.

143

Besides the unknown binding effect of Avena, the decisions of

international tribunals are generally not directly binding on American

localities. U.S. courts though may grant considerable weight to these

bodies’ decisions, or even these bodies’ consideration of certain matters,

in determining whether to preempt a state or local policy that affects

U.S. foreign affairs. For example, the Supreme Court in Crosby noted

that the European Community and Japan had lodged a complaint with

the WTO that the Massachusetts Burma Law violated U.S. obligations

under the Agreement on Government Procurement (GPA).

144

The Court

specifically pointed to the WTO complaint as evidence that the

Massachusetts Act was hampering the ability of the President to speak

with one voice for the nation on the issue of Burma.

145

It also cited a

statement by the Assistant Secretary of State that the Massachusetts Act

was injuring the U.S.’s ability to negotiate with the EU to create an

effective Burma strategy.

146

In the future, these statements may give

added weight to heightened legislative preemption as in Crosby or be

used to justify the invocation of executive foreign relations power

preemption as in Garamendi. Further, if the Court were to resurrect

Zschernig, it might find that localities’ actions, which merely create

139. Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12

(Mar. 31).

140. Id. at 23.

141. Memorandum from President George W. Bush for the Attorney General (Feb. 28, 2005),

available at http://www.whitehouse.gov/news/releases/2005/02/20050228-18.html.

142. Medellin v. Dretke, 544 U.S. 660, 666 (2005) (deciding that the Supreme Court will not

hear appeals involving the Avena or the Bush memos until all remedies in state courts have been

exhausted); Napier-El v. Johnson, 2006 U.S. Dist. LEXIS 40798, *14 n.18 (finding that the status of

states’ obligations under the Avena decision were uncertain)

143. Adam Liptak, U.S. Says it has Withdrawn from World Judicial Body, N.Y.

TIMES, Mar.

10, 2005, at A16.

144. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 383 (2000).

145. Id. at 382-83.

146. Id. at 383-84.

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controversy before an international tribunal, could be struck down under

the dormant foreign affairs power. A court might also find that

localities’ actions that interfered with the trade commitments of the

United States might be preempted by the heightened dormant foreign

commerce clause.

International tribunals create additional political pressure on

localities to change their policies as well. For example, in 2004, the

Florida state legislature amended a tax on Brazilian orange juice after

being heavily lobbied to do so by the U.S. government after Brazil filed

a WTO complaint against the tax.

147

The Florida state legislature had a

choice between retaining its discriminatory orange juice tax policy or

inviting the ire of the federal government. With the prospect of the

entire United States being punished for its actions in the WTO, it backed

down and amended the tax.

Certainly, some state and local policies deserve international

examination and condemnation. Such scrutiny, however, also takes

away local control. The Florida juice tax or the Massachusetts Burma

Act might be viewed as protectionist trade policies or representing

parochial interests, but they also reflect local values. It is not the task of

international trade tribunals to weigh the value of free trade versus these

local concerns, nor are these tribunals particularly well-placed to weigh

these competing interests. The answer is not to abandon international

agreements, whether in trade or human rights, but instead to involve

localities more when the United States is negotiating these agreements.

Most important for purposes of this article, it should be the federal

government and not courts that decide whether specific local policies

should be preempted when these policies come under the scrutiny of

international bodies. The Florida orange juice tax case demonstrates that

the federal government is willing and able to intervene when U.S.

foreign policy interests are truly threatened by localities’ actions even

when the locality in question (Florida) has disproportionate weight in

American electoral politics.

III.

JUSTIFYING PARTIALLY DECENTRALIZED FOREIGN RELATIONS

In Garamendi the Supreme Court stated:

There is, of course, no question that at some point an exercise of state

power that touches on foreign relations must yield to the National

147. Todd Benson, Brazil Resolves Complaint On Florida Juice-Import Tax, N.Y. TIMES, May

29, 2004, at C3.

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Government’s policy, given the ‘concern for uniformity in this

country’s dealings with foreign nations’ that animated the

Constitution’s allocation of the foreign relations power to the National

Government in the first place.

148

This echoes Madison’s concerns in Federalist 42 where he wrote

“[i]f we are to be one nation in any respect, it clearly ought to be in

respect of other nations.”

149

As Part I showed, the Court has generally

found the argument that the nation must speak with “one voice” highly

persuasive. Except for in dormant foreign commerce clause cases, the

Court has usually found that a plea to “one voice” in foreign affairs

trumps competing state concerns.

150

The Court’s jurisprudence not only dramatically preferences the

federal over the state and local in issues that touch on foreign relations it

also biases power allocation toward the President, whom the Court has

found has the “vast share of responsibility for the conduct of our foreign

148. Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 413 (2003).

149. T

HE FEDERALIST NO. 42, at 232 (James Madison) (Clinton Rossiter ed., 1961); see also,

HE FEDERALIST NO. 80, at 444 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (“The peace of

the whole ought not to be left at the disposal of a part.”).

150. See Crosby, 530 U.S. at 381.

The state Act undermines the President’s capacity, in this instance for effective

diplomacy. It is not merely that the differences between the state and federal Acts in

scope and type of sanctions threaten to complicate discussions; they compromise the

very capacity of the President to speak for the Nation with one voice in dealing with

other governments.

Id. (emphasis added).

[I]n discussing the Import-Export Clause, this Court, in Michelin Tire Corp. v. Wages,

423 U.S. 276, 285 (1976), spoke of the Framers’ overriding concern that ‘the Federal

Government must speak with one voice when regulating commercial relations with

foreign governments.’ The need for federal uniformity is no less paramount in

ascertaining the negative implications of Congress’ power to ‘regulate Commerce with

foreign Nations’ under the Commerce Clause.

Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 449 (1979) (emphasis added). “[W]e are

constrained to make it clear that an issue concerned with a basic choice regarding the competence

and function of the Judiciary and the National Executive in ordering our relationships with other

members of the international community must be treated exclusively as an aspect of federal law.”

Bano Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425 (1964). “The law thus ‘compromise[s] the

very capacity of the President to speak for the Nation with one voice in dealing with other

governments’ to resolve claims against European companies arising out of World War II.”

Garamendi, 539 U.S. at 424. (citing Crosby 530 U.S. at 381) (emphasis added). See also Chae

Chan Ping 130 U.S. 581, 606 (1889) (“For local interests the several States of the Union exist, but

for national purposes, embracing our relations with foreign nations, we are but one people, one

nation, one power.”); Hines v. Davidowitz, 312 U.S. 52, 63 (1941) (“Our system of government is

such that the interest of the cities, counties and states, no less than the interest of the people of the

whole nation, imperatively requires that federal power in the field affecting foreign relations be left

entirely free from local interference.”).

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relations.”

151

This section first argues that the United States has never spoken

with “one voice” in foreign relations, so any unequivocal appeal to the

“one voice” doctrine is misleading. Second, it lays out a number of

benefits to decentralizing foreign relations and addresses some of the

critiques of such decentralization. Finally, it finds that although there

are areas of foreign policy where the federal government should speak

with a united voice unfettered by localities’ actions courts are not well-

suited to determine these instances. Given that the nation rarely has a

united voice in foreign relations and given the complexity of the

potential benefits and drawbacks of localities’ actions that affect foreign

relations, the courts should only strike down localities’ actions that are

explicitly preempted by the legislature, the executive, or the

Constitution.

1. America’s Multiple Voices

Although the executive is often the privileged voice in foreign

affairs, it must also compete with the legislative and judicial branches.

152

For example, the Senate’s rejection of the Treaty of Versailles was a

harsh rebuke to Woodrow Wilson’s support for the League of Nations.

More recently, calls from Congress to withdraw troops from Iraq have

differed from, and perhaps undermined, President Bush’s stated plans.

A plethora of non-state actors symbolize, and in many ways speak

for, the United States abroad as well. These actors include large

American companies that invest in foreign countries; the entertainment

industry, which dramatically shapes culture abroad; American

missionaries who have started religious denominations and movements

across the globe; U.S. unions which have financially and otherwise

supported foreign unions in labor struggles; and U.S. based

nongovernmental organizations (NGOs) that may provide aid to other

countries or be critical of some foreign governments’ policies.

The actions of these non-state actors are rarely condemned by the

U.S. government even though they often complicate relations with

foreign countries. Indeed, the U.S. government can do little to control

the behavior of most of these actors. U.S. sanctions against a country

can prevent many of these non-state actors from operating in a specific

151. Garamendi, 539 U.S. at 414 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 610 (1952) (Frankfurter, J., concurring)).

152. See Generally Sarah H. Cleveland, Crosby and the ‘One-Voice’ Myth in U.S. Foreign

Relations, 46 V

ILL. L. REV. 975, 989 (2001).

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country, but sanctions are blunt and heavy-handed instruments that are

difficult to use against a specific actor that is disrupting the federal

government’s ability to speak with “one voice” in foreign relations.

Laws like the Foreign Corrupt Practices Act

153

and the Alien Tort

Claims Act

154

provide some avenues for regulating how these non-state

actors affect foreign relations, but such laws tend to be the exception and

not the norm.

State and local governments are arguably seen as representing the

U.S. government abroad in a more official capacity than U.S. non-state

actors. The governments of these localities are democratically elected

and so it is more likely that they will be seen as acting on behalf of the

American people. Additionally, the federal government generally has a

greater ability to control the actions of these localities than non-state

actors. Therefore, there is a greater chance that nonintervention by the

federal government to stop offensive activity will be seen as federal

endorsement of such activity.

Such logic though should caution against court intervention in these

cases rather than encourage it. If localities’ actions damage U.S. foreign

policy interests, the federal government can easily preempt the state or

local policies in question. Further, with the world’s increased

interconnectedness, it is more likely that if a foreign government takes

offense to a locality’s policy it can discriminate between the policy of

the locality and the policy of the federal government.

155

2. Benefits of Decentralizing Foreign Relations

Democracy that takes place at the level of the nation-state has long

been considered suspect. As Robert Dahl and Edward Tufte observe in

Size and Democracy, two thousand years of democratic theory either

explicitly or implicitly presupposed that democracy could only work on

a very local level.

156

The first democracies were city-states whose

citizens practiced a form of limited direct democracy.

157

Both Plato and

153. Foreign Corrupt Practices Act of 1977, 15 U.S.C.A. §§ 78dd-1 to 78dd-3 (West 2006).

154. Alien Tort Claims Act, 28 U.S.C.A. § 1350 (West 2006).

155. Peter J. Spiro, Globalization and the (Foreign Affairs) Constitution, 63

OHIO ST. L.J. 649,

653 (2002).

156. R

OBERT A. DAHL & EDWARD R. TUFTE, SIZE AND DEMOCRACY 55 (1973).

157. Greek city-states, like Athens, did not give women or slaves the right to participate in

their democracies. Over two thousand years later, the United States that De Tocqueville traveled

still disenfranchised these same groups both nationally and at a local level. Neither Ancient Athens

nor the United States of the 1840s could rightly be considered a democracy today. The models they

provide for direct and participatory democracy are entangled in a history of oppression that only

allowed for the empowerment of some. Lessons drawn from these two experiences must take this

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Aristotle assumed in their work that democracy would only occur in

city-state like units of governance. For instance, Plato uses the example

of a population of 5,040 as an ideal number of citizens for a

democracy.

158

Montesquieu and Rousseau, two of the thinkers who most

influenced the founders of the United States, both believed in small scale

democracy and largely believed democracy could only successfully take

place at this level. Rousseau argued for small direct democracies and

cautioned that “[t]he moment a people allows itself to be represented, it

is no longer free: it no longer exists.”

159

In contrast to Rousseau,

Montesquieu wrote that representatives of the people were better at

discussing public affairs and making decisions for the community than

the people as a whole.

160

He also felt, however, that democracy was not

well-suited to a large country because it was too difficult to foster trust

and a sense of public good on this scale.

161

Inheriting a vast geographic area and a relatively large population

(approximately 3.9 million people in 1790),

162

the United States adopted

a representative form of democracy on a national scale. Commitment to

democracy at the state and local level, however, remained strong. De

Tocqueville’s snapshot of the United States in Democracy in America

showed the continued liveliness of democratic institutions at a municipal

level in the early 1800s.

163

An allegiance to states and regions was so

overwhelming in the 1850s and 1860s that it created the preconditions

for the South to attempt to form their own union during the Civil War.

Since the Civil War, there has been a general centralization of

political power to the federal government, most notably during

Reconstruction and the New Deal. In the 1930s, federal expenditures

systematic disenfranchisement into account. See ANDREA DWORKIN, Women in the Public Domain,

in L

IFE AND DEATH: UNAPOLOGETIC WRITINGS ON THE CONTINUING WAR AGAINST WOMEN 196-

97 (1997) (on how Athenian democracy kept women out of public political life).

158. P

LATO, Laws, bk. V, in THE DIALOGUES OF PLATO 686, 692 (Benjamin Jowett trans.,

Encyclopedia Britannica, Inc. 1952); Plato, Laws, bk. VI, in T

HE DIALOGUES OF PLATO 697, 706

(Benjamin Jowett trans., Encyclopedia Britannica, Inc. 1952). See generally, Aristotle, Politics, bk.

V, in The Works of Aristotle Vol. II, in G

REAT BOOKS OF THE WESTERN WORLD VOL. 9 (Benjamin

Jowett trans., Encyclopedia Britannica 1952).

159. Jean-Jacques Rousseau, The Social Contract, bk. 3, Ch. 15, in G

REAT BOOKS OF THE

WESTERN WORLD VOL. 38, at 422 (G.D.H. Cole trans., Encyclopedia Britannica 1952).

160. B

ARON DE MONTESQUIEU, SPIRIT OF LAWS, bk. XI, Ch. 6, at 177 (Thomas Nugent trans.,

Robert Clark & Co. 1873).

161. Id. at bk. VIII, Ch. 16.

162. U.S. D

EPT. OF COMMERCE, HISTORICAL STATISTICS OF THE UNITED STATES: COLONIAL

TIMES TO 1970, pt. 1, at 8 (1975).

163. The direct democracy De Tocqueville documented in Democracy in America occurred in

New England townships of two to three thousand people. D

E TOCQUEVILLE, supra note 1, at 64.

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per year finally became greater than local expenditures.

164

State and

local democracy did not necessarily become less vibrant during this

progression, but localities lost relative power over their citizens in

relation to the federal government. Further, Americans’ political

identities became less attached to their region, state, or town and more

linked to the country as a whole.

The country though has also seen countervailing trends. The

second half of the 20th century saw a relative expansion of state and

local government in relation to the federal government although federal

spending remained significantly higher throughout. State and local

expenditures have increased from 1950 to 2001 from 5.6% of GDP to

9.8%.

165

During this same period, overall federal government

expenditures changed relatively little, ranging from 15% to 23% of GDP

(15.6% in 1950 and 18.4% in 2001). These overall federal numbers

mask an important trend though because the Reagan presidency saw the

beginning of a large drop in federal spending that was not defense,

interest payments, or transfers (4.1% of GDP in 1980, 2.2% in 1988, and

2% in 2001).

166

Meanwhile state and local spending consistently

increased during this time (8.6% of GDP in 1980, 9.2% in 1988, and

9.8% in 2001).

167

This change in federal, state, and local expenditures

along with Supreme Court decisions supporting state rights and a general

shift in public opinion for greater federalism indicates a moderate trend

towards decentralizing many aspects of governance over the last 25

years in the United States.

168

Federal systems are often adopted out of political necessity to

accommodate religious, ethnic, or linguistic differences between groups

from different geographic areas within the same country. These groups

are granted guarantees of limited autonomy while the central

government is granted limited overall control. This article does not

examine the political necessity of American federalism. Instead, three

other traditional justifications of federalism in the United States are

164. Charles Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416, 418 (1956).

165. O

FFICE OF MANAGEMENT AND BUDGET, HISTORICAL TABLES, BUDGET OF THE UNITED

STATES GOVERNMENT, FISCAL YEAR 2003, tlb. 15.3 - Total Government Expenditures as

Percentages of GDP: 1947-2001 (2002), available at

http://www.whitehouse.gov/omb/budget/fy2003/pdf/hist.pdf.

166. O

FFICE OF MANAGEMENT AND BUDGET, HISTORICAL TABLES, BUDGET OF THE UNITED

STATES GOVERNMENT, FISCAL YEAR 2003, tlb. 15.5 - Total Government Expenditures by Major

Category of Expenditure as Percentages of GDP: 1947-2001 (2003), available at

http://www.whitehouse.gov/omb/budget/fy2003/pdf/hist.pdf.

167. Id.

168. See Generally, John D. Donahue, Tiebout? Or Not Tiebout? The Market Metaphor and

America’s Devolution Debate, 11 J.

ECON. PERSPECTIVES 73, 74 (1997).

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highlighted and explicitly adopted to show the benefits of more

decentralized foreign relations. These are the following: (1) federalism

creates a greater diversity of policies which are more locally relevant,

more economically efficient, and/or allow for more experimentation

with less risk to the nation as a whole; (2) federalism provides a check

on the over-centralization of power; and (3) federalism fosters thicker

citizens by creating a more participatory and locally relevant democratic

process.

First, federalism allows for and fosters a greater diversity of

policies. Decentralization can allow for a number of governmental

subunits to work on the same problem creating what Jack Walker calls a

“national system of emulation and competition”

169

while also taking into

account local conditions and preferences. In a similar vein, Charles

Tiebout famously argued that if “consumer-voters” are mobile and have

full information they will sort amongst bundles of public goods offered

by competing local governments, thereby leading to the distribution of

public goods in an optimal manner.

170

Certainly, not all localities perform equally well at developing and

adapting new policies. Research has shown that wealthier states tend to

be more innovative although local political situations are in large part

determinative as well.

171

There is also reason to believe localities are

best at determining solutions to middle-level difficulty problems as large

problems often require more resources than are at their disposal while

decentralization can often confuse remedies for smaller problems.

172

With these limitations in mind, however, localities are remarkably

adaptive, often correctly pinpointing problems and finding new solutions

before the federal government does.

Dissenting from New State Ice Co. v. Liebmann, Justice Brandeis

summarizes the frequently invoked idea that states can be laboratories

for experimentation:

To stay experimentation in things social and economic is a grave

responsibility. Denial of the right to experiment may be fraught with

serious consequences to the Nation. It is one of the happy incidents of

169. Jack L. Walker, The Diffusion of Innovations among the American States 63 AM. POL.

SCI. REV. 880, 898 (1969).

170. Tiebout, supra note 170. For a brief overview of the literature criticizing the theoretical

problems of the Tiebout model see Ken Kollman, John H. Miller & Scott E. Page, Political

Institutions and Sorting in a Tiebout Model, 87 A

M. ECON. REV. 977, 978-79 (1997).

171. See generally, Virginia Gray, Innovation in the States: A Diffusion Study, 67 A

M. POL.

SCI. REV. 1174, 1185 (1973).

172. Ken Kollman, John H. Miller & Scott E. Page, Decentralization and the Search for Policy

Solutions, 16 J.L.

ECON. & ORG. 102, 104 (2000).

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the federal system that a single courageous State may, if its citizens

choose, serve as a laboratory; and try novel social and economic

experiments without risk to the rest of the country.

173

Of course, if state and local policies affect foreign relations, such

experimentation is not “without risk to the rest of the country.”

174

Localities’ policies that antagonize other countries could sour relations

with important trade partners, needed political allies, or belligerent

enemies. Although such dangers should be seriously considered, they

are often overstated while in other cases the larger benefits of state or

local action in foreign relations may be worth the potential for some

limited adverse consequences. Further, the federal government can

preempt localities’ policies that it finds endanger the country or its

foreign policy.

State trade missions are an example of state action directed abroad

that carries little risk for the nation as a whole. States may tailor these

missions to the special needs of their business communities. The diverse

tactics and goals of these missions may ultimately be more successful at

developing business ties with other countries than if all efforts were

concentrated through the U.S. government.

A number of areas of formerly local or national concern that have

become internationalized, such as environmental policy, also benefit

from decentralization. Within the framework of minimum national

standards, localities can experiment with creative new environmental

policies, defraying risk for the country and creating support for

successful policies.

Second, federalism provides a check on the over-centralization of

power. Federalism embraces a “conception of justice” that implies that a

diffuse political ordering is both “necessary and desirable.”

175

Federalist 51, James Madison reassures his readers that a federalist

173. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). See

also, Justice Powell in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 567-68

n.13 (1985) (Powell, J., dissenting) (“The Court does not explain how leaving the States virtually at

the mercy of the Federal Government, without recourse to judicial review, will enhance their

opportunities to experiment and serve as ‘laboratories.’”); Justice O’Connor in Fed. Energy

Regulatory Comm’n v. Mississippi, 456 U.S. 742, 787-88 (1982) (O’Connor, J., dissenting)

(“Court’s decision undermines the most valuable aspects of our federalism. Courts and

commentators frequently have recognized that the 50 states serve as laboratories for the

development of new social, economic, and political ideas.”). Erwin Chemerinsky, Empowering

States When It Matters: A Different Approach to Preemption, 69 B

ROOK. L. REV. 1313, 1325

(2004).

174. There are potential spillover affects to many state domestic policies as well.

175. D

ANIEL ELAZAR, EXPLORING FEDERALISM 84 (1987).

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republic provides a “double security” against usurpations of power

because power is not only divided between the different branches of the

federal government, but also between the federal and state

governments.

176

Justice O’Connor picks up this theme in Gregory v.

Ashcroft where she remarks that “[j]ust as the separation and

independence of the coordinate branches of the Federal Government

serve to prevent the accumulation of excessive power in any one branch,

a healthy balance of power between the States and the Federal

Government will reduce the risk of tyranny and abuse from either

front.”

177

As areas of traditional local governance increasingly become

objects of international concern there is an increased danger that

localities will be weakened in their ability to act as a counterweight to

federal and international power. Further, localities can play an active

role in checking abuses of federal foreign policy in areas not

traditionally associated with local governance.

For example, localities may be able to resist perceived misuses of

federal power that touch on foreign relations if they require the

assistance of local authorities to implement. Several cities, such as San

Francisco and Detroit, have passed resolutions denouncing the U.S.

Patriot Act, and some cities have even gone so far as to decline to

provide assistance to federal authorities in any instance where civil

liberties might be jeopardized.

178

As will be discussed in the next section, localities have also taken a

number of actions to oppose or attempt to change federal foreign policy,

such as passing resolutions condemning the war in Iraq or adopting

“Buy America” laws. These actions in and of themselves may have

questionable impact on any perceived abuses of foreign policy decision-

making power in Washington D.C., but they mobilize citizens around

foreign policy issues at a local level.

This mobilization of citizens is perhaps the greatest check on

usurpations of power by the federal government and leads to the third

justification for federalism in foreign relations: federalism creates

control and independence at a local and state level which encourages

176. THE FEDERALIST NO. 51, at 291 (James Madison) (Clinton Rossiter ed., 1961).

177. Gregory v. Ashcroft, 501 U.S. 452, 458 (1991). See also Chief Justice Rehnquist in

United States v. Lopez, 514 U.S. 549, 552 (1995) (“This constitutionally mandated division of

authority ‘was adopted by the Framers to ensure protection of our fundamental liberties.’”); Justice

Scalia in Printz v. United States, 521 U.S. 898, 921 (1997) (“The separation of the two spheres is

one of the Constitution’s protections of liberty.”). Chemerinsky, supra note 179, at 1325.

178. Vikram David Amar, Converse § 1983 Suits in Which States Police Federal Agents: An

Idea Whose Time Has Arrived,

69 BROOK. L. REV. 1369, 1370 (2004).

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citizen participation and empowerment.

179

Although fewer people vote in local elections than in national

elections (in part because local elections tend to be more lop-sided

affairs), more people try to influence local politics than national

politics.

180

State and local politicians are usually more accessible than

national ones. It is also often easier to create local and state

constituencies. Sometimes these state or local constituencies are

connected with or develop into national constituencies, but it is the

chance to participate locally and impact the governance of one’s locality

that often mobilizes those involved. The idea that local action may then

turn into a national movement can create synergetic inspiration.

State and local democracy leads to large reservoirs of engaged and

committed citizens participating in a diverse array of political

communities. Not every citizen will take the opportunity to engage with

the governments of their localities, but many will. Local political

communities’ involvement in questions of foreign relations ensures that

debates around these topics will occur at multiple levels of government

and in multiple forums. With pools of active and committed citizens, it

is then more likely these citizens can and will check an overzealous

Congress or executive. The involvement of engaged political classes in

localities who also participate in national politics makes it more likely

that the potential for tyranny in the federal government’s policies will be

checked both here and abroad.

To further illuminate localities’ role in foreign relations, it is

helpful to address three critiques of decentralizing foreign relations that

also draw off of traditional critiques of federalism in general. First, the

federal government has superior resources and expertise in foreign

relations so localities’ involvement in foreign relations will therefore

lead to unwise or underdeveloped foreign policy. Second, given

freedom in the arena of foreign policy, localities may pursue unjust

policies. Third, involvement of localities in foreign relations confuses

who is accountable for foreign policy.

The federal government has an unmatched institutional capacity to

develop, shape, and implement a comprehensive foreign policy for the

nation. Many state and local representatives are rightly hesitant to take

on foreign policy issues because they correctly perceive their expertise

to be in local decision-making and not in foreign decision-making.

Individual citizens often find themselves similarly intimidated by foreign

179. ELAZAR, supra note 181, at 8.

180. D

AHL & TUFTE, supra note 162, at 55-57.

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policy matters.

Max Weber observed that “[u]nder normal conditions, the power

position of a fully developed bureaucracy is always overtowering. The

‘political master’ finds himself in the position of the ‘dilettante’ who

stands opposite the ‘expert,’ facing the trained official who stands within

the management of administration.”

181

There is perhaps no bureaucracy

as seemingly impenetrable to citizens as that which has developed

around foreign relations. Multiple agencies deal with a plethora of

issues that surround our relations with countries. Citizens often know

little about the countries with which these agencies deal. Terms like

“national security” and “national interest” often intimidatingly loom in

the background. Even the term “foreign relations” still connotes a

certain degree of untouchable importance and danger.

The information and expertise differential between local and federal

decision-makers and officials may seem overpowering when looked at

broadly,

182

but local and state officials actually have a potential

information advantage in many foreign relations issues such as fostering

trade. Further, with an interconnected world a great deal of information

is available to legislators, and they have become savvier at interpreting

it. State and local legislators can also take their cue from the federal

government. For example, the legislators of many localities likely felt

more comfortable condemning the regime in Sudan after the federal

government stated genocide was occurring in Darfur. Most importantly,

localities are not developing a comprehensive foreign policy, but instead

are crafting a foreign policy that furthers their localities’ more limited

interests.

A second critique of federalism is that if localities are given too

much power they will pursue narrow-minded or unjust ends. Madison

wrote in Federalist 10 that the tyranny of the majority could be checked

more easily in a larger country because it was less likely they would

share common enough interests to consistently suppress the rights of

181. MAX WEBER, FROM MAX WEBER: ESSAYS IN SOCIOLOGY 232 (H. H. Gerth and C. Wright

Mills eds. and trans., 1946).

182. Id. at 229 (“The ruled for their part cannot dispense with or replace the bureaucratic

apparatus of authority once it exists. For this bureaucracy rests upon expert training, a functional

specialization of work, and an attitude set for habitual and virtuoso-like mastery of single yet

methodically integrated functions. If the official stops working, or if his work is forcefully

interrupted, chaos results, and it is difficult to improvise replacements from among the governed

who are fit to master such chaos.”). Of course, no one is suggesting the U.S. dispense with its

federal foreign policy bureaucracy, but only also allow a space for state and local decision-making

in foreign relations.

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others.

183

Indeed, many who grew up during the Civil Rights era in the

United States associate state and local governments with racist laws in

the American South that were entrenched in localities. These laws were

only ultimately purged through the commitment of the national

government. Many have argued for international human rights and trade

regimes so that people and markets under localities’ control are not

subject to parochial policies. They claim that localities’ actions not in

line with these commitments can only weaken the high standards of

these international regimes.

There are at least two reasons to doubt the validity of this criticism.

First, if localities are not involved in and do not accept the validity of

international agreements, these agreements can seem hollow and

illegitimate no matter how just their goals purport to be. International

agreements and the norms they promote are not as likely to be

successfully internalized without local involvement and participation in

the development, contestation, and implementation of these agreements.

Second, history has shown localities were often on the forefront of

causes of justice. An examination of American history shows a number

of notable examples where state and local governments took the lead in

protecting basic human rights. For example, the Constitution initially

entrenched a system that would favor the continuation of slavery.

184

While the federal government actively condoned slavery, northern states

banned its practice and worked towards its national abolition.

Localities also pushed women’s suffrage before the national

government. In 1869 the Wyoming territory accorded women equal

rights with men to vote and hold office, and in 1890 it entered the United

States as the first woman-suffrage state.

185

By 1917, 11 states – all in

the west – had full suffrage for women.

186

Suffrage advocates used the

example of these states to successfully lobby for the 19

amendment,

which was adopted in 1920.

It is beyond the scope of this article to predict if greater or less

federal or local control over the issues of slavery or women’s suffrage

would have hastened or slowed these moves towards freedom and

equality at the national level. Both the abolitionist and suffrage

183. THE FEDERALIST NO. 10, at 51 (James Madison) (Clinton Rossiter ed., 1961).

184. A

KHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 20-21 (2005).

185. Id. at 419.

186. T

HE WOMAN SUFFRAGE YEARBOOK 1917, at 21 (Martha Stapler ed., 1917), available at

http://memory.loc.gov/cgi-

bin/ampage?collId=rbnawsa&fileName=n7468/rbnawsan7468.db&recNum=19&itemLink=r?amme

m/naw:@field(DOCID+@lit(rbnawsan7468div11)):%23n7468020&linkText=1.

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movements, however, leveraged state and local action to pursue their

national objectives. A certain decentralization of power to localities

should appeal to any advocate for justice. State and local governments

have an important role to play in decrying the injustices of the federal

government and international treaty regimes.

A third critique of federalism emphasizes the decrease in

accountability as more levels of government become involved in an area

of policy. In many ways accountability for foreign relations, however,

remains much clearer in a partially decentralized system than in most

areas of domestic policy. The federal government is clearly to blame for

mistakes in a distant war and not one’s local or state government.

Meanwhile, a state government is to blame for a state trade mission that

mishandles tax payer money without producing any business for the

state. Similarly, although a citizen should not expect their state to end

apartheid in South Africa, they may hold them accountable for not

joining a divestment campaign aimed at this goal. Citizens should not

hold their locality’s government accountable for the unfolding of world

events, but they can hold it accountable for how it reacts to these events.

Dahl and Tufte observe that “[n]o single type of size of unit is

optimal for achieving the twin goals of citizen effectiveness and system

capacity.”

187

When the federal government all but monopolized foreign

relations, it seemed difficult for a citizen to impact formulation of these

policies. Today, localities have an increasingly larger role as actors in

foreign relations. It is generally easier for citizens to affect their

localities’ policies than to affect national ones. Most localities, however,

do not have the capacity to have much effect on large global issues.

Instead, their goals in foreign relations must be more modest: fostering

productive trade and other exchanges with other countries, protecting

their own values and markets, decrying international injustices, or

pressuring the federal government to change its foreign policy in line

with the localities’ interests. In a globalized world, foreign relations

become a broader concept. Both the federal government and state and

local governments have increased responsibility in foreign relations. In

turn, we should work to democratize foreign relations at all these levels

of government recognizing the strengths and weaknesses of each level of

government.

187. DAHL & TUFTE, supra note 162, at 138.

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3. Judicial Implications

The U.S. has never spoken with “one voice” in foreign relations

and certainly does not today. Further, the benefits of decentralizing

foreign policy to include the involvement of localities are numerous.

Given the pervasive nature of globalization, there is little reason to

believe foreign relations should be the soul domain of the federal

government. Instead, as Judith Resnik has argued more generally,

categories in federalism are rarely truly bounded. We should recognize

“that many categories are intertwined in lawmaking enterprises and that

more than one source of legal regulation is likely to apply to any set of

behaviors.”

188

There are clearly times that the U.S. must act with a united voice,

but the legislature and executive are better suited than the judiciary to

determine when localities’ actions are a genuine threat to the nation’s

foreign relations interests.

189

These branches are better acquainted with

the nation’s foreign policy and can more efficiently and accurately target

localities’ actions that adversely affect foreign relations than courts.

Also, giving broad preemption power to the judiciary may result in

diverse decisions by lower courts in the same area of foreign relations,

creating further confusion.

190

Therefore, courts should abandon their

heightened preemption analysis in the field of foreign relations. They

should only preempt localities’ actions in foreign relations when they are

explicitly required to by the executive, the legislature, or the

Constitution.

Although courts should let the other branches of government

regulate localities’ actions in foreign relations, courts are better suited to

determine when their own actions may adversely affect foreign relations.

As a result, there may be instances when a court should find a dispute

nonjusticiable because of the implication of a judgment on foreign

relations. When coming to such a conclusion, the court should weigh

the interest localities have in the judicial resolution of these cases. A

court should not overestimate the need to use these doctrines of

nonjusticiability. Frequently a decision will not have as dire

consequences on foreign relations as the courts imagine. Further, the

executive and Congress can often pass laws to limit courts’ jurisdiction

if they do overreach. Finally, an overzealous use of the act of state and

188. Judith Resnik, Categorical Federalism: Jurisdiction, Gender, and the Globe, 111 YALE

L.J. 619, 622 (2001).

189. Goldsmith, supra note 5, at 1714.

190. Goldsmith, supra note 5, at 1694.

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political question doctrines on issues that affect foreign relations will

keep courts out of an ever-increasing number of disputes, many of which

could benefit from the judiciary’s intervention.

IV.

IN CONTEXT: LOCALITIES’ ACTIONS THAT AFFECT FOREIGN

RELATIONS

Not all localities’ actions that affect foreign relations do so in the

same way. Such actions may: (1) foster exchange and cooperation with

other countries; (2) protect or promote local markets and/or values in a

manner that affects foreign relations; (3) judge other countries’ behavior;

or (4) influence the federal government’s foreign policy. Localities may

also (5) adopt or borrow from international or foreign law. This part of

the article provides examples for each of these categories to make the

implications of the arguments laid out so far more tangible.

These examples demonstrate the varied and sometimes complex

ways localities affect foreign relations. Some brief analysis is given to

demonstrate how foreign relations law is constraining or could constrain

localities’ actions in each of the five categories. In particular, localities’

actions that affect foreign relations in categories two and three are most

likely to come under the scrutiny of domestic law, while activities in

category two are most likely to be found suspect by international law.

These examples, however, also show that no category is without

scrutiny from U.S. law. Some actions may fit into more than one

category. For example, a procurement policy like the one at issue in

Crosby may be an attempt to influence foreign policy (category four),

but it also fits in categories two and three. Further, if localities are

consistently told by the courts that their business is not foreign relations,

this may have a chilling effect on activities in all of these categories.

1. Policies that Foster Exchange and Cooperation with Other Countries

Localities’ policies that foster exchange and cooperation with other

countries are one of the least scrutinized categories under domestic or

international law. State and local governments’ involvement in these

activities, however, especially concerning trade promotion, demonstrates

how localities have become not just occasional, but routine international

actors. Arguably, America’s foreign policy gains more from these

numerous and diverse exchanges to promote business with other

countries by localities than if the federal government attempted to

centralize this cooperation. Localities emulate each other’s tactics to

strengthen exchanges with foreign countries and often compete for

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business. Citizens also become engaged in these exchanges, thereby

furthering citizen involvement and exposure to foreign affairs.

Bayless Manning noted in the 1970s that “[t]he economic

interdependence of the modern world is more than international. It is

also inter-local.”

191

Indeed, localities today tirelessly promote economic

activity with foreign countries and foreign localities both to create

markets for their products and to attract overseas investment.

192

Although states have long sent trade delegations abroad, the

number of these delegations increased greatly during the 1990s as states

gained a new awareness of the importance of international trade, the

amount of international trade increased, and larger state budgets made

such delegations possible.

193

In 1980 there were only four overseas

offices maintained by states, but by 2002 this had increased to 240

overseas offices.

194

States also cooperate with one another to coordinate

economic outreach overseas.

195

Friendship state or partnership

relationships between states and subunits of other countries are created

to encourage trade and cultural exchange as well.

196

Cities across the

U.S. have promoted their businesses through sister-city programs

197

well as through the U.S. Conference of Mayors.

Other countries or sub-national units often make specific attempts

to create stronger economic ties with specific states. For example, at

191. Bayless Manning, The Congress, The Executive, and Intermestic Affairs: Three

Proposals, 55 F

OREIGN AFF. 306, 309 (1977).

192. See generally, Daniel Halberstam, The Foreign Affairs of Federal Systems: A National

Perspective on the Benefits of State Participation, 46 V

ILL. L. REV. 1015, 1028-33 (2001).

193. C

HRIS WHATLEY, STATE OFFICIAL’S GUIDE TO INTERNATIONAL AFFAIRS 3 (2003),

available at http://www.csg.org/pubs/Documents/SOG03InternationalAffairs.pdf.

194. Id. at 3, 49-51.

195. For example, the National Association of State Development Agencies (NASDA)

organizes trade and investment missions as well as helps educate state economic development

directors about attracting investment. NASDA Website, International Business Development

Division Description, available at http://www.nasda.com/ (last visited Dec. 30, 2006); The Council

of American States in Europe coordinates the activities of U.S. States with offices in Western

Europe. E

ARL H. FRY, THE EXPANDING ROLE OF STATE AND LOCAL GOVERNMENTS IN U.S.

OREIGN AFFAIRS 68 (1998).

196. It is estimated some “90% of states maintain partnerships or working relationships with

foreign jurisdictions.” W

HATLEY, supra note 194, at 13.

197. Pat Guinane, State trade office plays matchmaker as Quincy courts China, I

LLINOIS

ISSUES, Feb. 2005 (detailing trade mission sponsored by the state of Illinois between Quincy, IL,

and its sister-city Jiaxing, China); H

EIDI HOBBS, CITY HALL GOES ABROAD: THE FOREIGN POLICY

LOCAL POLITICS 2 (1994) (describing how San Francisco and Shanghai created their sister-city

relationship to help foster trade). In 2005, “Sister Cities International represented over 2,500

communities in 126 countries around the world.” See Sister-cities international website, Frequently

Asked Questions at http://www.sister-cities.org/sci/aboutsci/faqs (last visited Dec. 30 2006). Sister-

cities international is a partially federally funded organization dedicated to “increased global

cooperation, cultural exchange, and economic development.” Id.

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least 35 countries have foreign trade offices in California alone.

198

Foreign leaders will meet with state government officials while touring

the United States,

199

and foreign companies will often use state

governors as a single point of contact to navigate regulatory and political

hurdles.

200

Some have argued that competition between state and local

governments for business strengthens free markets and thereby creates

greater economic growth.

201

Others have argued that it is not clear such

competition will create growth

202

and express concern that such overt

competition between localities sets off a regulatory race to the bottom

and increases inequalities.

203

Certainly, many foreign (and domestic

companies) expect large tax breaks and other subsidies before deciding

to start major operations in a given locality.

Localities foster other exchanges with foreign countries that are not

purely economic. One of the principal ways in which state and local

governments create connections with foreign countries is by developing

the education systems that shape their citizens global worldview,

including the training of foreign language skills and the teaching of

history of other countries.

204

A number of states have developed environmental partnerships with

other countries to share knowledge and often aid these countries in their

environmental programs.

205

California Governor Arnold

Schwarzenegger and British Prime Minister Tony Blair signed a formal

198. California Business Portal, Foreign Trade Offices in California, available at

http://www.ss.ca.gov/business/ibrp/trade_offices.htm (last visited Dec. 30, 2006). Sometimes these

foreign trade offices are sub-national units present in the United States such as the State of

Bavaria’s, South West of England’s, or the Catalonian trade offices in California.

199. Office of the Governor, Governor Schwarzenegger, Mexico President Fox Discuss

Pressing Cross-Border Issues at Historic, May 25, 2006, available at

http://gov.ca.gov/index.php/press-release/816/.

200. Halberstam, supra note 198, at 1031.

201. Barry Weingast and others have argued that federalism preserves markets by devolving

power away from the central government and forcing subunits to compete against each other in their

policies. Qian, Yingyi & Barry R. Weingast, Federalism as a Commitment to Preserving Market

Incentives, 11(4) J.

OF ECONOMIC PERSPECTIVES 83 (1997). Ideally, such decentralization and

deregulation will lead to growth. Id at 85-86. Weingast points to China and the United States as

cases of this occurring. See id. at 83-92.

202. Jonathan Rodden & Susan Rose-Ackerman. Does Federalism Preserve Markets?, 83

VA.

L. REV. 1521, 1524 (1997) (Arguing that a federal model of competition between states may

actually slow growth). For example, state politicians may not always act to maximize citizen

benefits. There may be more points of corruption in a federal system, state level inequality may

increase, and such a federal system may be unstable over the long term.

203. Donahue, supra note 174, at 73.

204. W

HATLEY, supra note 199, at 12.

205. Id. at 18-19.

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agreement in July 2006 pledging environmental cooperation between

their two jurisdictions.

206

Since the 1990s, at least 36 states have created ties with countries

around the world through the State Partnership Program of the National

Guard. For example, the Montana National Guard has provided infantry

training to Kyrgyzstan. As an outgrowth of this military exchange, the

Montana Nurses Association also sent representatives to train public

health personnel in Kyrgyzstan, and a Montana NGO has funded the

construction of a clinic for the developmentally disabled.

207

December 2003, the President of Kyrgyzstan flew to Montana to meet

with Montana’s Governor and representatives from agriculture,

academics, the military, and other organizations.

208

2. Laws and actions that protect and promote localities’ markets and

values in a manner that affects foreign relations

State and local actions often protect domestic markets or values.

These actions may be designed to specifically protect against foreigners.

Often the regulation of markets or values by localities has merely

incidental effects on foreigners. With the increased internationalization

of the areas of governance of localities, there is a greater chance for

these incidental conflicts to arise.

States have explicitly preferred local or U.S. companies against

foreign companies in procurement policies. Proponents of preferring

local or U.S. firms in procurement policies claim that the government

should use tax dollars to support domestic companies and spur the local

economy. Further, they argue domestic companies should not be

penalized for having to comply with tighter domestic labor and

environmental regulation.

Thirty-seven states voluntarily agreed in the early 1990s to cover

some of their state procurement under the WTO Agreement on

206. Press Release, Office of the Governor, Gov. Schwarzenegger, British Prime Minister Tony

Blair Sign Historic Agreement to Collaborate on Climate Change, Clean Energy, Jul. 31, 2006,

available at http://gov.ca.gov/index.php/press-release/2770/. It is unclear what the status of this

agreement is under Art. 1 Sec. 10 of the Constitution, which bars states from entering treaties with

foreign powers. U.S C

ONST. art I, § 10. Agreements of this type will likely increase in the coming

years, and their constitutional validity will come under increasing scrutiny. The California-UK

agreement is seemingly non-binding, and it appears unlikely that it will be challenged.

207. W

HATLEY, supra note 199, at 16-17.

208. National Guard Bureau of International Affairs website, Montana National Guard State

Partnership Program in Kyrgyzstan, available at

http://www.ngb.army.mil/ia/states/states/mt_kyrgyzstan.htm (last visited Dec. 27, 2006).

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Government Procurement (GPA).

209

By so agreeing, these states allow

suppliers from the other country to have an equal opportunity to compete

for purchases in those states.

210

Most states, however, still have some

preferences for in-state bidders and firms in their state procurement

policies.

211

Several states have explicitly told the federal government

that they will decline a foreign company’s bid for procurement contracts.

In May 2004, the Governor of Maine rescinded his state’s commitment

to be bound by CAFTA’s procurement rules and stated that he will

review all future trade agreements on a case-by-case basis.

212

In 2004,

over concerns about outsourcing abroad, at least 35 states introduced

legislation that would require that state contracts be performed inside the

United States.

213

Lower courts have been split if such “Buy American”

laws are constitutional, and a case on this topic has not been decided in

the wake of Crosby and Garamendi.

214

Several municipalities have also

prohibited the purchase of goods made with sweatshop labor and require

companies receiving municipal contracts to pay a living wage.

215

Localities have taken steps to actively protect non-economic

interests as well. For example, several U.S. cities are members of

United Cities and Local Governments, a U.N. affiliated organization that

promotes cities’ interests at the U.N. United Cities has lobbied the UN

to create principles on decentralization and to give local governments

209. Office of the USTR, State Government Procurement and Trade Agreements, Apr. 1, 2004,

available at

http://www.ustr.gov/Document_Library/Fact_Sheets/2004/State_Government_Procurement_Trade_

Agreements.html.

210. Id.

211. See SELL2USGOV, State Procurement Preferences, Dec. 12, 2005, available at

http://www.dfait-maeci.gc.ca/sell2usgov/statelawsreg-en.asp (website maintained by Canadian

Department of Foreign Affairs and International Trade detailing procurement preferences for all 50

states).

212. Karen Imas, States Get Savvy on Trade Strategy, S

TATE NEWS, May 2005, at 24.

213. See National Conference of State Legislatures, 2004 Legislation Regulating or

Prohibiting Non-U.S. Citizens from State Contracts, June 29, 2004, available at

http://www.ncsl.org/standcomm/scecon/04LegisECON.htm.

214. See K.S.B. Technical Sales Corp. v. N. Jersey Dist. Water Supply Comm’n, 381 A.2d

774, 789 (1977) (upholding constitutionality of state “Buy American” law on the grounds that it did

not “impermissibly interfere with the federal government’s conduct of foreign affairs” or impose

judgment on any foreign state); Bethlehem Steel Corp. v. Bd. of Comm’rs, 276 Cal. App. 2d 221,

229 (1969) (invalidating state “Buy American” law as conflicting with federal trade policies).

215. San Francisco, Cleveland, and a number of other cities have laws banning the

procurement of products made in sweatshops. See, Pittsburgh Joins City Fight Against Sweatshops,

U.S.

NEWSWIRE, Sept. 23, 1997 (discussing Pittsburgh sweatshop ordinance); Linda Himelstein,

Going Beyond City Limits? Municipalities Are Exercising Their Clout on Social Issues - And

Business Is Balking, B

US. WK., July 7, 1997, at 98 (noting passage of San Francisco ordinance).

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special observer status at the U.N.

216

These recommendations are based

on the assumption that localities have a unique perspective about and

role in governing that needs to be protected and promoted at an

international level.

With the pervasive effects of globalization, many localities’ actions

that protect and promote domestic markets and values have an incidental

effect on foreign relations. Sometimes these cases also have

protectionist or xenophobic undertones, but in all of them traditional

state and local interests are also being pursued.

Such incidental effects have been challenged in U.S. court cases.

For example, in 2004 in the complaint to Central Valley Chrysler-Jeep,

Inc. et al. v. Witherspoon

217

several major automakers including Ford

and General Motors sued the California Air Resources Board. They

argued that the Clean Air Act and federal fuel economy laws preempted

the California’s regulation of carbon dioxide. They also claimed,

however, that the federal foreign affairs power and the dormant foreign

interstate commerce clause preempted the state regulations. The

petitioner’s brief submitted that California’s regulation of carbon dioxide

“. . . interferes with the U.S. speaking with one voice on matters of

global climate change, and it diminishes the President’s leverage in

negotiating multilateral commitments to reduce greenhouse gases.”

218

Local regulations that have an incidental impact on foreign

commerce have also been challenged under Chapter Eleven of NAFTA.

In December 2003, Glamis Gold Ltd, a Canadian mining company, filed

a complaint under Chapter Eleven challenging state regulations that

blocked their development of a California mine site.

219

The regulations

216. United Cities and Local Governments, Stronger partnership with local governments

central to reforming the UN, available at http://www.cities-

localgovernments.org/uclg/index.asp?pag=template.asp&L=EN&ID=282 (last visited Dec. 27,

2006).

217. First Amended Complaint for Declaratory and Injunctive Relief, Central Valley Chrysler-

Jeep, Inc., et. al. v. Witherspoon, Case No. 1:04-cv-06663-REC-LJO (E.D. Cal. Feb. 16, 2005).

218. Id. at 95. The Brief continues:

The President’s bargaining power is reduced even further if other states adopt

California’s fuel economy standards. Far from attempting to conform their actions to the

position of the national government, California officials, including the Secretary of the

California Environmental Protection Agency and CARB officials beneath him, are

actively campaigning for adoption of CARB’s regulation by at least one foreign

government (Canada), to make federal fuel economy policy irrelevant or much less

important in the global automobile industry.

Id.

219. Glamis Gold, LTD., Notice of Arbitration under the Arbitration Rules of the United

Nations Commission on International Trade and the North American Free Trade Agreement:

Glamis Gold Ltd.,Claimant/Investor, and The Government of the United States of America,

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required backfilling the mine site, which would make the project

financially infeasible.

220

The regulations had general applicability, but

were implemented because of specific concerns about environmental and

cultural damage that the Glamis Gold mine site might cause.

221

The

arbitration is ongoing.

In 2005 in Methanex Corp. v. United States of America, a Chapter

Eleven Tribunal rejected the claim of a Canadian company that a

California Executive Order banning the use of the gasoline additive

MTBE, which the company manufactured, violated NAFTA.

222

ordered the company to pay the costs of litigation for the United

States.

223

In March 2004, Grand River Enterprises Six Nations, Ltd., a

Canadian company in the tobacco industry operating in the United

States, lodged a complaint under Chapter Eleven.

224

Under an

agreement between the major cigarette makers and forty-six states, the

states agreed to not pursue litigation against tobacco companies in

exchange for a multi-billion dollar settlement.

225

The tobacco

companies had to raise prices to fund the settlement.

226

They feared,

however, that smaller companies who had not been sued, and so were

not part of the settlement, would thereby gain an unfair market

advantage.

227

In response, the states established a series of incentives to

attract non-party tobacco companies to join the agreement as well as

imposed additional regulations if they did not join the agreement.

228

Grand River Enterprises Six Nations challenged these state acts under

NAFTA.

229

The litigation is ongoing.

230

Respondent/Party, Dec. 9, 2003, available at

http://www.state.gov/documents/organization/27320.pdf.

220. Id.

221. Id.

222. U.S. Dept. of State, Methanex v. United States of America Summary, available at

http://www.state.gov/s/l/c5818.htm (last visited Dec. 28, 2006) (the claimed violations were under

Article 1110 (a claim of expropriation), Article 1105 (denying fair and equitable treatment in

accordance with international law), and Article 1102 (discriminatory treatment against foreign

investors)).

223. Id.

224. Grand River, et al., Notice of Arbitration under the Arbitration Rules of the United

Nations Commission on International Trade Law and The North American Free Trade Agreement:

Between Grand River Enterprises Six nations, Ltd., et al. and the Government of the United States,

Mar. 10, 2004, available at http://www.state.gov/documents/organization/30961.pdf.

225. Id.

226. Id.

227. Id.

228. Id.

229. Id.

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The WTO has also been a site of international debate around state

and local policies that affect foreign commerce. In 2005, the WTO

Appellate Body found that U.S. federal cotton subsidies violated

provisions of GATT and the Agreement on Subsidies and

Countervailing Measures (SCM).

231

State and local subsidies have also

come under scrutiny though. In a trade dispute between the European

Union and the United States over their respective support of Airbus and

Boeing, each brought a complaint against the other in the WTO over

government subsidies.

232

In its original complaint, filed in October

2004, the European Union claimed that the United States was not in

compliance with the Agreement on Subsidies and Countervailing

Measures as well as provisions of GATT. The complaint not only

argued that different forms of federal subsidies violated these

agreements, but also argued that tax and incentive packages given by

Kansas, Washington State, and the city of Chicago violated these

agreements.

233

According to the EU, the Washington state package to

Boeing was worth $7 billion.

234

There is currently a WTO panel

reviewing these complaints.

235

Localities have long given subsidies to

attract corporations, rejuvenate depressed communities, and retain

businesses that are part of their cultural heritage. Such subsidies are

likely to come under increasing scrutiny from the WTO.

The unsuccessful implementation or inadequacy of state or local

laws and regulations can also have an impact on commerce with foreign

countries. For example, states are responsible for the tracking of

animals and any diseases they might have. In 2004, an outbreak of mad

cow disease in Washington cost the U.S. $400 million in lost sales to

Japan alone.

236

In this way, the effectiveness of one state’s regulation of

230. U.S. Dept. of State, Grand River Enterprises Six Nations, Ltd., et. al. v. United States of

America Summary, available at http://www.state.gov/s/l/c11935.htm (last visited Dec. 28, 2006).

231. WTO, Dispute Settlement: Dispute DS267, United States – Subsidies on Upland Cotton,

available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds267_e.htm (last visited Dec. 28,

2006).

232. BBC, U.S. takes Airbus dispute to WTO, BBC

NEWS, Oct. 6, 2004, available at

http://news.bbc.co.uk/2/hi/business/3720710.stm.

233. United States - Measures Affecting Trade In Large Civil Aircraft: Request for

Consultations by the European Communities, G/SCM/D63/1, Oct. 12, 2004.

234. European Union News Releases, EU Resumes WTO Case Against Boeing, May 31, 2005,

available at http://www.eurunion.org/News/press/2005/2005056.htm.

235. WTO, Dispute Settlement: Dispute DS317, United States - Measures Affecting Trade In

Large Civil Aircraft, available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds317_e.htm

(last visited Dec. 28, 2006).

236. Gene Rose, State Legislatures’ Top 10: Here’s a Sample of the Key Policy Issues that

Promise to Cross State Borders and Test Political Wills, S

TATE LEGISLATURES, Jan. 2005, at 10.

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animal disease can affect the ability of all states to access international

markets for their animal products. This may add fuel to the argument to

federalize such regulations.

Localities’ laws also affirm local values that may be contrary to the

values of other countries. The “culture wars” that take place between

different constituencies in the United States are often joined by foreign

voices who feel that certain policies offend universal rights, values, or

sensibilities. For example, until the Supreme Court’s decision in Roper

v. Simmons, twenty states continued to allow for the execution of

juveniles despite near universal international condemnation of juvenile

executions.

237

Opposition to the death penalty in general is widespread

in much of the world, and the continued widespread use of the death

penalty in the United States has at times become a diplomatic strain,

especially with countries in Europe. The European Union maintains an

official website detailing EU member state action on the U.S. death

penalty. European Union members angered by executions taking place

in the United States have written numerous open letters to state

governors, declarations of condemnation, and amicus briefs.

238

already noted, the ICJ in Avena held that 54 Mexican nationals on state

death rows had their consular rights violated under the Vienna

Convention for Consular Relations.

239

Gay marriage and civil unions provide another sight for potential

conflicts of values on the international stage. Most states have laws

which prohibit marriage between same-sex couples, and many have

passed constitutional amendments barring same-sex marriage.

240

Vermont, Connecticut, and New Jersey allow civil unions between

same-sex couples.

241

In 2003, the Massachusetts Supreme Court ruled

that outlawing same-sex marriages was unconstitutional under the

Massachusetts constitution.

242

Canada, Spain, the Netherlands, and

237. Roper v. Simmons, 543 U.S. 551, 564 (2005).

238. See generally, European Union, EU & Action on the Death Penalty (section on “Action

on US Death Row Cases”) available at,

http://www.eurunion.org/legislat/DeathPenalty/deathpenhome.htm#ActiononUSDeathRowCases

(last visited Dec. 28, 2006).

239. Case Concerning Avena and Other Mexican Nationals (Mexico v. Unites States of

America), 43 I.L.M. 581 (2004).

240. See Lambda Legal, Background: State Laws and Proposed Amendments to State

Constitutions to Deny Civil Rights to Same-Sex Couples, available at

http://www.lambdalegal.org/cgi-bin/iowa/news/fact.html?record=1530 (last visited Dec. 28, 2006).

241. Gay Marriage Around the Globe, BBC

NEWS, Dec. 22, 2005, available at

http://news.bbc.co.uk/2/hi/americas/4081999.stm [hereinafter Gay Marriage].

242. Goodridge v. Department of Public Health, 440 Mass. 309 (2003).

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Belgium all have nation-wide same-sex marriage.

243

Canada allows

same-sex foreign nationals to marry.

244

Several other countries such as

Denmark and Germany offer similar although not always equal benefits

to same-sex couples as married couples (i.e. civil unions).

245

Recognition of same-sex marriages and civil unions consummated

abroad is done on a state by state basis in the United States. States in the

U.S. that do not recognize same-sex marriage or civil unions may upset

countries that allow such unions if same-sex couples from their country

seek temporary residency in these states and want their marriages or

civil unions recognized. Similarly, a same-sex couple from Vermont

who is in a civil union may ask Vermont to advocate that their union be

recognized in another country in which they are temporarily residing that

does not currently recognize same-sex unions.

Differing views about what constitutes human life also may embroil

states in a global debate about values. In November 2004, in reaction to

federal limitations on National Institutes of Health (NIH) funding for

certain types of stem-cell research, California voters passed a $3 billion

initiative to finance stem-cell research.

246

This makes California’s stem-

cell research budget on par with countries such as Sweden and

Singapore which have made such research a priority.

247

Several other

states have either budgeted money or proposed money for stem-cell

research as well.

248

Meanwhile, Arkansas, Iowa, Michigan, North

Dakota, and South Dakota all prohibit cloning of embryos for the

purpose of research or reproduction.

249

The issues surrounding cloning

and stem-cell research all have the potential to insult the moral

sensibilities of the citizens and governments of foreign countries and

become diplomatic issues in the future.

States’ differing stances on illegal immigrants directly affect

relations with foreign citizens and their countries. States have taken

different positions on whether illegal immigrants will be eligible for

non-emergency health care, certain labor rights, in-state college tuition

rates, legal services, voting, identification cards, and other public

benefits. Some states have also specifically trained state officials to

243. Gay Marriage, supra note 247.

244. Id.

245. Id.

246. Silla Brush, The Stem Cell Race, S

TATE LEGISLATURES, Apr. 2005, at 24-25.

247. Id.

248. New Jersey has approved money for stem cell research. New York, Illinois, Wisconsin,

Maryland, and Connecticut all have proposed legislation that proposes money for stem cell research.

Id. at 26.

249. Id.

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arrest illegal immigrants. In others, state officials make no coordinated

effort to track or arrest illegal immigrants.

250

Such actions and anti-

immigrant sentiment fueled by local politicians can offend foreign

governments and complicate U.S. foreign relations.

Even something as seemingly innocuous as the choice of a textbook

by a school board can have far reaching international implications. In

April of 2005, thousands of protesters marched in Chinese cities angered

by the Japanese government’s approval of textbooks that were perceived

by many in China as glossing over the atrocities Japan committed in

China during World War II.

251

Although this was a Japanese national

government decision made in the context of deep historical animosity

between the two nations, in the United States this decision would be

made on the state and local level.

The traditional domains of localities are becoming of greater

international concern. Many of these areas of regulation are at the heart

of state and local governance. Local decisions in these areas allow

citizens to more fully shape their lives, create a nation-wide system of

policy experimentation, and provide a check on federal and international

power. The internationalization of trade, human rights, and

environmental commitments means, however, that many of these core

functions of localities are coming under new scrutiny and threat. These

state and local policies could be struck down by U.S. courts under the

dormant foreign relations clause, heightened legislative or executive

preemption (depending on what steps the executive or legislative

branches have taken to occupy the field), or even the dormant foreign

commerce clause. Such judicial intervention could severely and, quite

possibly, unnecessarily constrain the ability of localities to express core

values in the name of a united “one voice” in foreign policy.

3. Laws and actions that judge other countries’ behavior

Localities’ actions that judge other countries’ behavior could be

defined as a sub-category of protecting or promoting localities’ values

(category two). These actions, however, are dealt with in a separate

category here because these judgments are targeted at particular policies

250. Mark Mathews, Immigration Bedevils Lawmakers, STATELINE, Sept. 2, 2005, available at

http://www.stateline.org/live/ViewPage.action?siteNodeId=136&languageId=1&contentId=51980;

National Conference of State Legislatures, 2006 State Legislation Related to Immigration: Enacted,

Vetoed, and Pending Gubernatorial Action, June 7, 2006, available at

http://www.ncsl.org/programs/immig/06ImmigEnactedLegis.htm.

251. BBC, China Rejects Call for an Apology,

BBC NEWS, Apr. 17, 2005,

http://news.bbc.co.uk/2/hi/asia-pacific/4453055.stm.

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of specific countries. They have also garnered special judicial scrutiny.

Localities may judge other countries’ behavior explicitly through

resolutions or legislation. States may also delegate that judgment to the

state executive or judiciary. These judgments of foreign countries can

sometimes be just rhetorical expressions in the case of state resolutions,

have real economic or judicial force behind them as in the case of

divestment campaigns or lawsuits, or be symbolic such as when cities

have used their sister-city ties to pursue human rights objectives.

252

These judgments may be purely expressive, an ethical attempt to ensure

state resources are not complicit in the judged behavior, or an attempt to

influence behavior by other countries.

State legislatures have used resolutions as a way to condemn the

actions of other countries on such diverse issues as Apartheid in South

Africa, genocide in Sudan,

253

or the arrest and show trials of Jews in

Iran.

254

These resolutions may bring media attention to a specific issue

and are circulated to the state’s congressional delegation. They also

provide tangible goals for local constituencies to work towards, which

helps build momentum for broader movements. Although these state

resolutions may undermine the U.S.’s one voice in foreign relations,

they are likely protected by the First Amendment.

255

States have also used their economic power to condemn human

rights abuses overseas. The South African divestment campaign spread

during the 1980s as many localities felt Reagan’s policy of “constructive

engagement” and “quiet diplomacy” towards South Africa was not a

forceful enough response to apartheid.

256

During the South Africa

divestment campaign, 37 states adopted some form of sanctions against

the government of South Africa.

257

These sanctions usually involved

252. FRY, supra note 201, at 84 (discussing efforts by various U.S. cities to promote

international human rights); H

OBBS, supra note 203, at 6 (noting that Mayor Dinkins of New York

City traveled to South Africa during Apartheid to express his support for continued sanctions).

253. See Assem. Res. 209, 211th Leg., Reg. Sess. (N.J. 2004); H. J. Res. 56, 94th Gen. Assem.,

Reg. Sess. (Ill. 2005); H. Con. Res. 143, 79th Leg., Reg. Sess. (Tex. 2005); S. 608, 116th Leg., Reg.

Sess. (S.C. 2005); H. Con. Res. 143, 2005 Leg., Reg. Sess. (Ky. 2005); S. Res. 112, 2005 Leg., Reg.

Sess., (Haw. 2005); S. Con. Res. 205, 2005 Leg., Reg. Sess., (Haw. 2004).

254. Assem. J. Res. 64, 2000 Leg., Reg. Sess., (Cal. 2000).

255. However, the precedent here is not clear. Individual state legislators certainly enjoy full,

if not heightened, first amendment protection (see Bond v. Floyd, 385 U.S. 116 (1966)), but a state

assembly could potentially be enjoined from passing a resolution that disrupted the U.S.’s ability to

conduct foreign relations. The Court in Nat’l Foreign Trade Council v. Giannoulias, 2007 U.S.

Dist. LEXIS 13341, remarks in dicta that Garamendi and Zschernig do not seem to prohibit state

resolutions which contradicts U.S. foreign policy. Id. at 38. However, the Court is only speaking in

dicta and this statement is not otherwise substantiated.

256. H

OBBS, supra note 203, at 29.

257. See P

ETER DESIMONE & WILLIAM F. MOSES, A GUIDE TO AMERICAN STATE AND LOCAL

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different restrictions on the ability of the state pension plan to invest in

companies that did business in South Africa. Additionally, at least 105

cities and 32 counties maintained some type of restriction on their

banking, investment, and procurement practices with South Africa.

258

In 1996, Massachusetts adopted an act that restricted the state’s

procurement of goods or services from companies that did business in

Burma.

259

Apple Computer along with other companies reportedly

terminated their Burma operations in response to the Massachusetts

Burma statute.

260

In 2000, in Crosby the Supreme Court ruled that this

selective purchasing law was preempted by federal legislation that

created a national sanctions regime towards Burma.

261

Since Crosby

there has been debate about how articulated a national policy must be

toward another country before it preempts state action toward that

country. Further, it is unclear what types of state action besides selective

procurement policies could be preempted.

262

Despite the ambiguity surrounding Crosby, cities and states

continue to use their clout as investors to express their scorn for the

policies of certain governments as well as attempt to promote their view

of a more just world. For example, the MacBride Principles provide a

corporate code of conduct for doing business in Northern Ireland for

multinationals to ensure nondiscrimination on the basis of religion.

263

least 16 states have passed MacBride Principles legislation that directs

their pension funds to only invest in companies in compliance with these

principles if they are active in Northern Ireland.

264

Other restrictions on pension funds exist as well. Connecticut, for

example, restricts its pension fund from investing in companies that are

LAWS ON SOUTH AFRICA 19-43 (1993).

258. Id. at 1, 47-138 (city ordinances), 141-63 (county ordinances).

259. 1996 Mass. Acts 239, ch. 130 (codified at M

ASS. GEN. LAWS ch. 7 § 22G-M,

40F.5(1997)) (cited in Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 367 (2000).).

260. See Frank Phillips, Apple Cites Mass. Law in Burma Decision, B

OSTON GLOBE, Oct. 4,

1996, at B6 (stating “company would end its operations in Burma because of the Massachusetts

law”); See also, Crosby, 530 U.S. at 370 (noting that three plaintiff member companies had

withdrawn from Burma after passage of Massachusetts law).

261. Crosby, 530 U.S. at 388.

262. Andrea Sendlenski, Note: Taking Our Money and Going Home: State Divestment Policy

and the Foreign Affairs, Foreign Commerce, and Supremacy Clauses, 24

SUFFOLK TRANSNAT’L L.

REV. 317 (2001) (arguing state divestment statutes with the intent to effect foreign affairs violate the

Foreign Affairs, Foreign Commerce, and Supremacy Clauses)

263. Father Sean McManus, The Macbride Principles, Dec. 1997, available at

http://www1.umn.edu/humanrts/links/macbride.html.

264. Id. These states include Connecticut, Florida, Illinois, Maine, Massachusetts, Michigan,

Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, Pennsylvania, Rhode

Island, Texas, and Vermont. Id.

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doing business in Iran in a manner that is contrary to U.S. foreign policy

interests there.

265

The State of Arizona requires its state treasurer to

report twice a year on the global security risks of state investments.

266

This report must include a list of companies held in the treasurer’s

portfolio who have business activities in countries that the federal

government has listed as supporting terrorism.

267

Vermont requires its

treasurer to cast proxy votes in the companies it holds stock in to

promote human rights and transparency in relation to Burma.

268

Other

state and local governments have adopted human-rights based sanctions

against Indonesia, Nigeria, Cuba, and countries engaging in religious

persecution.

269

In 2004, the New York State Senate blocked the UN’s proposed

renovation of its New York City headquarters.

270

Various Senators cited

the oil for food scandal, anti-Semitism in the organization, and the

nonpayment of parking tickets by visiting diplomats as part of their

reasons for blocking the proposed renovation.

271

In this case, it was not

a specific country, but a specific international organization that was

targeted for a state’s scorn.

In some states, judgment of other countries’ behavior or policies is

delegated to officials of the state executive. In California, for example,

the State Treasurer evaluates the political stability in emerging equity

markets using such factors as the country’s human rights and civil

liberties record before it invests CALPERS, the largest state pension

fund in the country.

272

The treasurer lists which emerging markets it will

invest in each year. This list of the $168 billion pension plan does not

go unnoticed by investors or government officials abroad.

273

265. STATE OF CONNECTICUT RETIREMENT PLANS & TRUST FUNDS, INVESTMENT POLICY

STATEMENT, Mar. 13, 2002, at 21, available at http://www.state.ct.us/ott/pensiondocs/IPS.pdf.

266. A

RIZ. REV. STAT. ANN. § 35-319 (2007).

267. Id.

268. H.B. 34, 65th Leg., Biennel Sess., (Vt. 1999).

269. Organization for International Investment, Current Issues,

http://www.ofii.org/issues/sanction.cfm (last visited Dec. 28, 2006) (listing state and municipal

sanctions from the 1990’s); F

LA. STAT. ANN. § 215.471 (West 2001) (restricting the investment of

Florida’s funds in Cuba).

270. Press Release, News From the Senate Republican Majority, Senate Will Not Take Up

United Nations Bill Next Week (Dec. 2, 2004),

http://www.senate.state.ny.us/pressreleases.nsf/2e0e86fa9105ed5a85256ec30061c0be/109e9077be7

1eb7985256f5e006c703b?OpenDocument.

271. Id.

272. C

ALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, STATEMENT OF INVESTMENT

POLICY FOR PERMISSIBLE EQUITY FOR EMERGING EQUITY MARKETS, Oct. 17, 2005, at 2, available

at https://www.calpers.ca.gov/eip-docs/investments/policies/equity/permissible-country.pdf.

273. See Nuntawun Polkuamdee, Thailand back in US fund’s good books, B

ANGKOK POST,

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Connecticut, the state treasurer is directed to consider environmental and

social implications of its investments, which inevitably involves at least

implicitly judging the social situations in other countries.

274

State

Treasurers in California, New York, and Connecticut have also worked

to address companies’ contributions to sweatshop labor and global

warming.

275

These actions often attempt to regulate companies’

behavior abroad because the countries in which they are doing business

are unable or unwilling to do so themselves.

In 2005, Illinois, New Jersey, and Oregon all passed legislation to

divest their pension plans from companies because of their business in

Sudan, where there are ongoing atrocities being committed in Darfur.

276

As of April 2007, seven more states had joined these three in passing

divestment legislation.

277

Several cities and counties have also divested

their funds from companies that do business in Sudan.

278

In August of 2006, the National Foreign Trade Council (NFTC) and

several municipal pension funds in Illinois brought suit against the

Illinois Act to End Atrocities and Terrorism in the Sudan [the Illinois

Sudan Act].

279

The Illinois Sudan Act amended the Deposit of State

Moneys Act to bar the state from depositing state funds in a financial

institution unless it annually certifies that it does not borrow money to a

“forbidden entity” (i.e. almost any company that does business in or with

Sudan). The Illinois Sudan Act also prevented any pension fund created

under the Illinois Pension Code (which includes many municipal

pension funds) from investing in a “forbidden entity.”

280

The Act’s

definition of forbidden entity was one of the broadest of any of the

states’ Sudan divestment legislation. Further, the Illinois Sudan Act

Apr. 20, 2005.

274. C

ONN. GEN. STAT. § 3-13d (West 2006).

275. Tracy Rembert, CSR in the Cross-Hairs, B

USINESS ETHICS ONLINE, Spring 2005,

available at http://www.business-ethics.com/current_issue/spring_2005_csr_crosshairs.html.

276. S.B. 23. 94th Gen. Assem., Reg. Sess. (Ill. 2005); S.B. 2145, 211 Leg., Second Sess. (N.J.

2004); S.B. 1089, 73rd Leg., Reg. Sess., (Or. 2005).

277. See Assem. B. 2941, 2005-2006 Leg., Reg. Sess., (Cal. 2006), H.B. 5632, 2006 Leg., Feb.

Sess., (Conn. 2006); S. Paper 675,122nd Leg., Reg. Sess., (Me. 2005) See generally, Sudan

Divestment Taskforce, http://www.sudandivestment.org/home.asp (last visited May 5, 2007).

278. Id.

279. Elizabeth Kelleher, U.S. Trade Group Files Suit over Illinois Sanctions on Sudan, U.S.

Dept. of State News from Washington, Aug. 7 2006, available at

http://usinfo.state.gov/xarchives/display.html?p=washfile-

english&y=2006&m=August&x=20060807174000berehellek0.6285974; Complaint for Declaratory

and Injunctive Relief, Nat’l Foreign Trade Counsel v. Giannoulias, No. 06C4251 (N.D. Ill. Aug. 7,

2006), available at

http://www.nftc.org/default/sudan%20lawsuit/NFCT%20v.%20Topinka%20complaint.pdf.

280. Nat’l Foreign Trade Council v. Giannoulias, 2007 U.S. Dist. LEXIS 13341, at 3-9.

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went beyond most divestment legislation in barring the state from

depositing money in financial institutions that gave loans to Sudan-

involved companies.

The U.S. District Court for the Northern District of Illinois enjoined

enforcement of the Illinois Sudan Act in a February 2007 decision. It

found unconstitutional both the amendments to the Deposit to the States

Money Act and the Illinois Pension Code.

281

The District Court’s

reasoning though could potentially be used to uphold other states’

divestment legislation, or a revised Illinois statute.

The District Court first asked if the Illinois Sudan Act was barred

by the Supremacy Clause. The Court found that U.S. relations with

Sudan were governed by a 1997 Executive Order, the 2000 Trade

Sanctions Reform and Export Enhancement Act, the 2002 Sudan Peace

Act, the 2004 Comprehensive Peace in Sudan Act, and the 2006 Darfur

Peace and Accountability Act.

282

Citing Hines v. Davidowitz, Zschernig,

and a first circuit opinion, the Court argued that when the U.S.

government acts in an area of foreign relations there is a strong

presumption it intends to occupy the field. The District Court found that

the Illinois Sudan Act’s amendment of the Deposit of State Moneys Act,

like the Massachusetts’ legislation at issue in Crosby, “attempt[s] to

influence foreign policy directly by encouraging business entities not to

do business with a foreign country; if the entities decide not to do so,

they lose their ability to do business with the state.”

283

This amendment

is in conflict with U.S. foreign policy because the Illinois Sudan Act

lacks flexibility (the president cannot suspend the Illinois legislation in

the national interest); it applies to areas of Sudan not covered under

federal sanctions (i.e. Southern Sudan); and it extends to foreign entities

while the federal legislation only regulates U.S. entities.

284

Therefore, the District Court held the amendments to the Deposit of

State Moneys Act violated the supremacy clause because it pressured

banks and corporations to cut ties with Sudan and, thereby, came in

conflict with U.S. policy towards Sudan. The amendments to the

Pension code did not violate the Supremacy Clause though because no

evidence was presented that suggested pensions’ divestment from

companies that do business in Sudan would likely affect whether these

companies decided to stay in Sudan.

285

In other words, the Court said

281. Giannoulias, 2007 U.S. Dist. LEXIS

282. Id. at 9-14.

283. Id. at 27.

284. Id. at 28-30.

285. Id. at 30-31.

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that pressuring banks to limit who they lent to will likely have an effect

on banks and corporations so this action is preempted by federal policy,

but since divestment will likely have little effect it is not preempted.

The Court followed a similar reasoning when examining whether

the Illinois Sudan Act was barred by the Foreign Affairs Power. Citing

Zschernig and Garamendi, the District Court held that the amendments

to the Deposit of State Moneys Act violated the Foreign Affairs Power

because it applied immediate pressure on banks and corporations to

leave Sudan. Such action had more than “an incidental or indirect effect

in foreign countries.”

286

In contrast, the evidence divestment would have

an effect on companies’ behavior, and thus foreign policy, was only

speculative. As a result, the Court found that the amendments to the

Pension code withstood scrutiny by the Foreign Affairs Power.

287

Finally, the District Court examined whether the Illinois Sudan Act

violated the Foreign Commerce Clause. It found that both components

of the Illinois Sudan Act effected foreign commerce since the purpose of

the act was to limit trade with Sudan.

288

The Court noted that it was

unclear if there was a market-participant exception for states under the

foreign commerce clause as there is under the ordinary commerce

clause.

289

This question, however, was not reached. The amendments to

the Deposit of State Moneys Act had already been found to violate the

Supremacy Clause and Foreign Affairs Power. The amendments to the

Pension code could not qualify for the market-participant exception

because the Pension code covered both state and municipal pensions.

The state could only potentially act as a market participant when it

regulated its own pension funds. However, when it regulated municipal

pension funds – which are administered and contributed to locally – it

was acting as a regulator and not a market-participant. Since the

language of the Illinois Sudan Act did not distinguish between its

regulation of state and municipal pensions the Court could not just strike

out the offending language that regulates municipal pensions.

290

Instead,

the District Court found the whole provision barred by the Foreign

Commerce Clause.

The District Court’s opinion suggests that state divestment

legislation, like that in Illinois, would be constitutional if it does not

286. Id. at 40, quoting Nat’l Foreign Trade Council v. Natsios, 181 F.3d 38, 52 (1st Cir. 1999),

citing Clark v. Allen, 331 U.S. 503 (1947)).

287. Giannoulias, 2007 U.S. Dist. LEXIS at 43-44.

288. Id. at 46-47.

289. Id. at 50-51.

290. Id. at 53-56.

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mandate that governmental sub-units also divest. Of course, a future

court would still need to determine whether a state was acting as a

market participant when it divests.

The Illinois District Court’s line of reasoning leaves the

constitutionality of divestment on unstable ground. This is particularly

problematic since NFTC has announced it may challenge other state

divestment laws and any revised Illinois Sudan Act.

291

Why does

barring a state from investing its money in a bank that makes loans to

companies that do business in Sudan have more impact than divesting

state funds from companies that do business in Sudan? Divestment

often involves larger amounts of money. Both actions bring bad

publicity to companies who are invested in Sudan applying pressure on

them to leave. If companies did start leaving Sudan because of states

divesting would this then mean divestment had an impact on foreign

affairs and so would be struck down? Divestment would then only be

held unconstitutional if it was successful at achieving its goal.

The Illinois Sudan Act required the state to divest from many

companies and financial institutions with only an incidental relation to

Sudan. By casting such a wide net, the Illinois legislation may have

unnecessarily risked the financial health of Illinois pension plans. The

answer to this problem, however, is not for courts to dictate to states that

they cannot control whether their money is invested in companies that

support genocidal regimes. Instead, if this legislation is overly broad, a

legislative remedy is more appropriate. Legislators do not want to

unnecessarily jeopardize the returns of the state pension plans. If Illinois

does not amend their divestment legislation, it may be because the state

genuinely wishes to divest from companies that have any relation to

Sudan, even if this relation is more incidental than direct.

Although the Illinois divestment legislation may seem heavy-

handed, the Sudan divestment strategies of other localities have been

remarkably savvy. With the aid of the Internet, localities and groups that

have mobilized around divestment can relatively quickly identify many

of the companies who are most active in supporting the government of

Sudan.

292

Localities can then direct their fund managers to divest from

291. Kelleher, supra note 285; Foreign trade group against Sudan legislation, PENSIONS &

INVESTMENTS, April 9, 2007, available at

http://www.pionline.com/apps/pbcs.dll/article?AID=/20070409/DAILY/70409005.

292. See generally, Sudan Divestment Taskforce, supra note 278; A

LLARD K. LOWENSTEIN

INTERNATIONAL HUMAN RIGHTS CLINIC, AN ANALYSIS OF SELECT COMPANIES’ OPERATIONS IN

SUDAN: A RESOURCE FOR DIVESTMENT (2005), available at

http://acir.yale.edu/YaleLowensteinSudanReport.pdf.

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these companies.

Like in Crosby, Congress has not expressly acted to affirm the

Illinois state divestment legislation just as it did not expressly act to

affirm Massachusetts’s procurement policy. In both cases, Congress,

however, passed later stages of its sanctions regime, knowing of the state

actions and did not expressly preempt such activity.

The House version of the Darfur Peace and Accountability Act

contained a provision affirming the legality of state divestment

legislation.

293

This provision, however, was later taken out of the Senate

version in committee.

294

The revised version was passed in September

of 2006.

295

Meanwhile, SB 831 was introduced in the Senate in March

2007. This bill would declare that it is the sense of Congress that

divestment by states and other governmental entities is constitutional

and does not violate the Supremacy Clause, the Foreign Affairs Power,

or the Foreign Commerce Clause.

296

Although Congress has not yet

explicitly endorsed the legality of localities’ divestment action, it is

clearly aware of localities’ divestment activity and has not explicitly

preempted it.

It should not be the role of the courts to interfere with the foreign

policy of localities and the federal government when no explicit conflict

has arisen between these policies. As of May 2007, there were eight co-

sponsors of SB 831.

297

Does this mean Congress supports localities’

divestment? What of the Senate’s removal of the provision of the Darfur

Peace and Accountability Act that would have affirmed the legality of

divestment legislation? Courts would be engaging in a guessing game at

this point if they were to strike down the Illinois divestment legislation

claiming it interfered with the country’s foreign policy. This is

dangerous to America’s foreign policy and unnecessarily undermines the

democracy and federalism interests of localities and the citizens they

represent. If actions, like divestment, require federal affirmation before

they are considered constitutional, the states will rarely act on foreign

policy issues. Congress is unlikely to affirm state action like divestment

until several states have divested, but most states are unlikely to divest if

that action is considered unconstitutional until federal approval is given.

293. DarfurScores.org, Darfur Legislation, http://www.darfurscores.org/darfur-

legislation#hr6140 (last visited Dec. 30, 2006).

294. Id.

295. Id.

296. S. 831, 110th Cong. (2007).

297. S. 831: Sudan divestment Authorization Act of 2007, G

OVTRACK.US, available at

http://www.govtrack.us/congress/bill.xpd?bill=s110-831 (accessed May 6, 2007).

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The state judicial system also either explicitly or implicitly judges

foreign countries. For example, in Zschernig the state of Oregon

allowed property to escheat to a foreigner only if the foreigner’s country

gave a reciprocal right to Americans.

298

Both the actual legislation and

the judicial opinions allowed for a judgment of Communist countries.

299

This was found to be too controversial during the Cold War by the

Supreme Court and was struck down.

300

In John Doe, et. al. v. Unocal Corp., the Superior Court of

California ruled that Unocal, a California based oil and gas company,

could be tried for its involvement in abuses against Burmese villagers

during its construction of a pipeline in that country.

301

Under pressure

from the upcoming state trial and a possible unfavorable decision by an

en banc 9

Circuit decision in an ATCA case being heard on the same

set of facts, Unocal settled with the Burmese villagers.

302

The decision

by the state court that Burma was not an adequate forum for the suit was

a judgment of the competency and independence of Burmese courts.

The trial of the claims against Unocal would have not only judged the

company’s actions, but implicitly judged the actions of the Burmese

government as well (as many of the abuses were committed by Burmese

military hired by Unocal as security).

303

In Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004), the Supreme

Court found that claims could be made by foreign citizens in U.S. courts

for private claims under federal common law, but they cannot be claims

“for violations of any international norm with less definite content and

acceptance among civilized nations than the historical paradigms

familiar when 1350 [the ATCA] was enacted.”

304

Alvarez may be read

to create a federal common law that preempts state common law claims

298. Zschernig v. Miller, 389 U.S 429, 430 n.1 (1968).

299. Id. at 440.

300. Id. at 435.

301. 395 F.3d 932 (9th Cir. 2001). The original complaint made claims of wrongful death,

battery, false imprisonment, assault, intentional infliction of emotional distress, negligent infliction

of emotional distress, negligence per se, conversion, negligent hiring, negligent supervision,

violation of Business and Professions Code Section 17200, injunctive and declaratory relief,

violation of California Constitution Art. 1 Sec. 6 [outlawing slavery], and unjust enrichment. Id. at

943-44. Defendants eventually received summary judgment on the intentional tort and negligence

causes of action as to direct liability, but were to go to trial on issues of vicarious liability. Id.

302. EarthRights International, Final Settlement Reached in Doe v. Unocal, Mar. 21, 2005,

http://www.earthrights.org/legalfeature/final_settlement_reached_in_doe_v._unocal.html;

EarthRights International, Doe v. Unocal Case History, Jan. 30, 2006,

http://www.earthrights.org/site_blurbs/doe_v._unocal_case_history.html.

303. Id.

304. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004).

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that involve abuses in foreign countries such as in the state Unocal case.

It is unclear what role state courts will have in the future of hearing

claims concerning human rights abuses abroad since state courts do not

have the same standards for hearing these cases as federal courts do

under the ATCA.

4. Laws and actions that influence the nation’s foreign policy

Localities’ actions often attempt to influence national foreign

policy. Some of these actions merely help reinforce and support

preexisting federal foreign policy. The most prominent example of this

is localities’ support of the U.S. military in their operations abroad.

305

However, localities’ actions may also be in protest to U.S. foreign

policy or designed to change it. The Central American sanctuary

movement grew out of dissatisfaction with the U.S.’s policy towards

Central America in the 1980’s and the belief that refugees from El

Salvador and Guatemala were politically persecuted despite U.S. support

for these regimes. In all, “more than 20 cities and two states declared

themselves sanctuaries for Central American refugees.”

306

During this

same period, 87 cities created sister city type relationships with

communities in Nicaragua, in part to show solidarity against U.S. policy

there.

307

U.S. sanctions on Cuba have similarly been a target of state and

local action both on political and economic grounds. The Illinois and

Texas state legislatures have passed resolutions in support of normal

relations between the U.S. and Cuba.

308

Some cities in the United States

have established “Sister City” type relations with Cuban cities to express

their support for more normal relations between the United States and

Cuba.

309

After lobbying by agricultural interests, Illinois Governor Ryan

305. At least twenty-six state governors have made trips to Southwest Asia to meet with

National Guard troops from their states as well as active duty military since military operations

began in Afghanistan and Iraq. Donna Miles, Governors Praise Troops Following Middle East

Visit, A

MERICAN FORCES PRESS SERVICE, Apr. 19, 2006, available at

http://www.defenselink.mil/news/Apr2006/20060419_4868.html. States have also created specific

benefits and exemptions to help support those in the military in their states while the conflicts in

Afghanistan and Iraq are ongoing. For example, New York passed a “Patriot Plan” to help support

active duty troops while there are active military operations in Iraq. Press Release of Gov. George

E. Pataki, Governor Visits Families of Deployed 105

Military Police Company (Mar. 24, 2003)

available at http://www.state.ny.us/governor/press/03/march24_03.htm.

306. H

OBBS, supra note 203, at 36-37.

307. Id. at 34.

308. On First Reading Some States Want to Open Cuba’s Closed Doors, S

TATE

LEGISLATURES, Dec. 2001.

309. These cities include Mobile, Pittsburgh, and Milwaukee. The Center for International

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led a mission to Cuba in 1999 to promote trade and deliver aid.

310

During the trip he met with Cuban President Fidel Castro.

311

Shortly

after returning he stated, “My hope is there will be other state

delegations that go, and hopefully we’ll lift this embargo.”

312

In 2002,

Havana hosted governors and other representatives from seven states at a

Food and Agribusiness Exhibition.

313

Over one hundred cities passed resolutions calling for the end of the

Iraq War.

314

In early 2005 during the annual town hall day in Vermont,

49 cities and towns passed a resolution that asked the state legislature to

investigate what the impact of National Guard deployments to Iraq are

having on the state.

315

Several cities across the country have passed

resolutions calling on their states to withdraw their National Guard

troops from Iraq.

316

Dozens of local ballot initiatives in communities

across the country called on the federal government to bring the troops

home from Iraq in the November 2006 elections.

317

State governors

have also been openly critical of the U.S.’s involvement in the conflict in

Iraq.

318

In March 2007, several towns in Vermont passed resolutions calling

for the impeachment of President Bush and Vice President Cheney. In

April 2007, the Vermont State Senate in a non-binding resolution called

on members of the U.S. House of Representatives to begin impeachment

proceedings against the President and Vice President because of their

actions in the United States and abroad, including Iraq. These calls for

Policy, State and Local Government Resolutions on Cuba,

http://ciponline.org/cuba/trade/stateresmemo.htm (last visited Apr. 18, 2007).

310. William Claiborne, Illinois Governor Defends Visit to Castro, W

ASH. POST, Oct. 29,

1999, at A2.

311. Id.

312. Id. After Ryan’s meeting with Castro, State Department spokesman James P. Rubin said

that personal visits with Castro should be avoided “to not give the impression that anyone supports

the oppression that he has visited on his people.” Id.

313. Carolyn Orr, To Trade or Not to Trade?, S

TATE GOVERNMENT NEWS, Nov./Dec. 2002, at

30, available at http://www.csg.org/pubs/Documents/sgn0212ToTradeOrNot.pdf.

314. Karen Dolan, Cities for Peace, T

OMPAINE.COM, Nov. 10, 2006,

http://www.tompaine.com/articles/2006/11/10/cities_for_peace.php.

315. 57 of Vermont’s 251 cities and towns debated the proposal. Katie Zezima, National

Briefing: New England, N.Y.

TIMES, Mar. 3, 2005, at 25; Pam Belluck, Vermonters Vote on Study

of National Guard’s Role, N.Y.

TIMES, Mar. 2, 2005, at 12.

316. See generally, Code Pink, States That Are Working to Bring Their Guard Home,

http://www.codepinkalert.org/article.php?list=type&type=91 (last visited Apr. 18, 2007).

317. Wisconsin Network for Peace and Justice, State Referendum to Bring Our Troops Home,

http://www.wnpj.org/homenow (last visited Apr. 18, 2007).

318. Michael Blood, Schwarzenegger Cites Iraq ‘Mistakes’, W

ASH. POST, Oct. 11, 2006

(quoting Governor Arnold Schwarzenegger as stating that a lot mistakes were made by the U.S. in

Iraq).

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impeachment, which highlight a deep internal divide within the United

States over its policy in Iraq, were reported upon by media around the

world.

319

States and localities have pushed to change U.S. foreign policy

more broadly as well. For example, after the failure of SALT II during

the Carter administration, the unwillingness of Reagan to support a

nuclear test ban treaty, and the development of the Strategic Defense

Initiative, citizens banded together to promote a freeze on the production

of nuclear weapons in the 1980s. Through town meetings, local

referenda, resolutions, or other initiatives, more than 900 local

governments acted on the freeze issue.

320

After the end of the Cold War, at least 70 mayors in the United

States as well as hundreds of mayors from over 100 countries have

signed a statement in support of a nuclear free world.

321

State

assemblies have similarly passed resolutions calling for the end of

nuclear weapons.

322

Some states have taken a different approach

towards this national defense issue with at least 10 states having passed

resolutions calling upon the national government to deploy a missile

defense system since 1997.

323

States have also urged the United States to sign and ratify

international agreements. For example, several state governments have

passed resolutions in support of the Convention on the Elimination of

Discrimination Against Women (CEDAW).

324

Often state and local action arises out of dissatisfaction with the

perceived inadequacy or incorrectness of a federal policy towards a

foreign policy issue. Catherine Powell calls the impact of state and local

319. Vermont state senate seeks to impeach Bush, Cheney, XINHUA, Apr. 21, 2007, available

at http://news.xinhuanet.com/english/2007-04/21/content_6006599.htm (last visited May 3, 2007);

Senators vote to impeach Bush, T

HE TIMES OF INDIA, Apr. 22, 2007, available at

http://timesofindia.indiatimes.com/World/Europe/Vermont_senators_vote_to_impeach_Bush_Chene

y/articleshow/1936513.cms (last visited May 3, 2007).

320. H

OBBS, supra note 203, at 21.

321. Abolition Now!, Mayors for Peace Emergency Campaign to Ban Nuclear Weapons,

http://www.abolitionnow.org/site/c.lmK0JcNSJrF/b.1316337/k.9BB7/Mayors_for_Peace_Emergenc

y_Campaign_to_Ban_Nuclear_Weapons.htm (last visited Apr. 18, 2007).

322. See S. J. Res. 33, Gen. Assem. (Conn. 2005), available at

http://www.cga.ct.gov/2005/fc/2005SJ-00033-R000489-FC.htm.

323. See Missilethreat.com, State Resolutions Calling for Missile Defense,

http://missilethreat.com/treaties/pageID.177/default.asp (last visited Apr. 18, 2007).

324. Laura Roskos, International Law, National Sovereignty, and Local Norms: What’s to

become of CEDAW in the U.S.?, T

HE BOSTON CONSORTIUM ON GENDER, SECURITY, AND HUMAN

RIGHTS WORKING PAPER SERIES, Aug. 2003, at 32, available at

http://www.ksg.harvard.edu/wappp/research/working/bc_roskos.pdf.

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laws on national foreign policy “dialogic federalism.”

325

She argues that

enough local ordinances can create a norm cascade that affects federal

policy.

326

The U.S. federal sanctions against South Africa passed by

Congress over President Reagan’s veto in 1986 were arguably in part a

result of just such a norm cascade created by anti-apartheid resolutions

and laws at the state and local level.

327

In many ways, it is the mobilization of citizens around, more than

the passage of a resolution or act on a foreign policy issue that leads to a

norm cascade which changes federal policy. The effort required to

convince legislators and their fellow citizens to support a locality’s

official action gives citizens a tangible and reachable local goal to focus

their efforts on. This helps organize constituencies locally that can

develop into a national coalition. For example, someone who has

worked continuously to garner support for a local divestment initiative

on Sudan is also more likely to call their Congressperson to urge them to

pass the Darfur Accountability Act.

Norm cascades created by localities’ actions do not only impact the

policy they are directed at, but have a wider impact as well. For

instance, the South Africa or Sudan divestment campaigns can be seen

as national human rights moments. These are moments in which a

segment of the American public becomes unusually organized to

promote a human rights-based foreign policy goal. Most voters remain

generally unaware of how U.S. foreign policy implicates human rights in

other countries. Further, most voters do not base their vote on foreign

policy human rights issues. The signal given by these human rights

moments, however, creates an environment in which sympathetic

legislators and policymakers can prioritize human rights concerns in

other areas of foreign policy, knowing there is a constituency that

generally supports this type of action.

Local mobilization around human rights issues is not without its

drawbacks though. Local and state resolutions and laws may bring some

attention to human rights problems in other parts of the world, but not in

a timely manner. The Rwandan genocide occurred in 100 days. The

South African divestment campaign began in the late 1970s and only

built critical mass in the 1980s, decades after the creation of Apartheid.

The genocide in Sudan began in early 2003. The first resolution

condemning the Sudanese government was in late 2004 after tens of

325. Catherine Powell, Dialogic Federalism: Constitutional Possibilities for the Incorporation

of Human Rights Law in the United States, 150 U.

PA. L. REV. 245, 250 (2001).

326. Id. at 289.

327. H

OBBS, supra note 203, at 30.

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thousands had already died. Although mobilization can happen

increasingly quickly in a more interconnected world, any policy change

that localities are able to bring about at the federal level will happen

relatively slowly.

Local actions might also unduly bias certain foreign policy

initiatives. Although the conflict in Sudan has inspired a large

divestment campaign, the devastating civil war in the Democratic

Republic of Congo at the turn of the twenty-first century inspired little

action on the state and local level.

Localities’ actions may also create the illusion of stronger support

for an issue than there actually is. When states and cities pass

resolutions condemning genocide in Sudan and calling for more action,

they may not have in mind the commitment of large amounts of U.S.

troops or resources. In this way, specific interest groups that are good at

organizing on the local level around human rights issues could have a

disproportionate effect on our foreign policy.

In the end though, localities can provide an important forum to

highlight foreign policy concerns of citizens and foster debate around

these issues. Localities can act as a refuge for dissent from national

foreign policy and as a spark for change.

Localities’ actions to influence foreign policy are often less

nuanced than what would occur at the federal level. This bluntness,

however, can still serve valuable ends. Localities may re-inject moral

weight into foreign policy discussions through strong stands against

slavery, genocide, apartheid, or sweatshop labor that often get lost in the

realpolitik of the nation’s foreign policy bureaucracies. Anger over local

jobs leaving the United States to countries with lower wages and less

regulation may result in “Buy America” laws. These laws register a

sense of disempowerment felt by citizens that federal agencies may not

fully recognize when they negotiate new trade agreements that result in

large movements of jobs and capital.

5. Adoption of International or Foreign Law

State and local governments also effect foreign relations by

adopting, citing, or borrowing from international law. In this way, they

take on international commitments and enter a discourse with

international institutions and other nations. Such adoption of

international law has so far been rare, but their existence shows a

willingness of states and localities to take the lead in internalizing

international norms at their own impetus. Such adoption is also often in

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protest of the U.S.’s unwillingness to adopt these norms for the country

as a whole.

The City of San Francisco passed an ordinance in 1998 to make the

Convention on the Elimination of Discrimination Against Women

(CEDAW) part of its local law.

328

The city created a CEDAW taskforce

to craft and monitor implementation of the Convention over a five year

period.

329

In 2005, out of concern for how climate change will affect their

cities and frustration over the lack of leadership from the federal

government, a coalition of 132 mayors (representing nearly 29 million

people) pledged to meet the emission reduction requirements Kyoto

would have placed on them if the U.S. was a party.

330

This is a non-

binding pledge, but has led to some city actions to reduce emissions.

331

In Goodridge v. Department of Public Health, the Massachusetts

Supreme Court cited foreign law to contextualize its holding that a ban

on same-sex marriage was unconstitutional.

332

The use of international

or foreign law is still rare outside citations to the Anglo-American

common law, however.

State and city governments will also share best practices with their

international counterparts on issues ranging from counterterrorism, to

human trafficking, and to good governance.

333

In this way, components

of many foreign laws are incorporated into U.S. law through emulation.

ALTERNATIVE PROPOSALS TO INCREASE PARTICIPATORY

DEMOCRACY

There have been a number of proposals to foster greater

participation in American democracy.

334

Recently, James Fishkin and

Bruce Ackerman have put forth a strong argument to create a

328. S.F., CAL., ADMIN. CODE ch. 12K (2001), available at

http://www.ci.sf.ca.us/site/cosw_page.asp?id=10849.

329. Mark Sappenfield, In One US City, Life Under a UN Treaty on Women, C

HRISTIAN.SCI.

MON., Jan. 30, 2003, at 1.

330. Eli Sanders, Rebuffing Bush, 132 Mayors Embrace Kyoto Rules, N.Y.

TIMES, May 14,

2005, at 9A.

331. Id.

332. Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 948 (Mass. 2003) (citing Halpern v.

Toronto (City), [2003] 172 O.A.C. 276 (Can.) and Eagle Canada, Inc. v. Canada (Attorney Gen.),

[2003] 13 B.C.L.R. (4

) 1 (Can.)).

333. Ilene Grossman, Roles Differ but Goals are Similar for State, Provincial Lawmakers,

TATELINE, May 2005, http://www.csg.org/pubs/Documents/slmw-0505RolesDiffer.pdf.

334. For example, Benjamin Barber supports creating a system of neighborhood assemblies in

which citizens could routinely question their elected representatives on their concerns. B

ENJAMIN

BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE 270 (1984).

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deliberation day two weeks before major national elections.

335

Citizens

would be paid to attend and gather in groups of 15 to 500. In these

groups, they would discuss the major issues in the next election.

Deliberative polling has shown that such civic engagement can have a

large impact on citizens’ voting behavior.

336

The implementation of an

idea like deliberation day would also likely effect how voters voted on

foreign policy issues. After deliberative polling in Texas, voters were

more likely to find that the current level of foreign aid was about right

and that the U.S. should cooperate more with other countries militarily

to address trouble spots in the world.

337

Indeed, if the goal is only to increase citizen discussion of foreign

relations, a proposal like deliberation day would certainly engage more

Americans than would result out of protecting localities’ role in foreign

relations. A proposal like deliberation day, however, does not address

the other federalism benefits of having localities involved in foreign

relations such as being laboratories for experimentation, a check on the

power of the federal government, or the promotion of local autonomy.

Instead, an idea like deliberation day is complimentary to localities’

involvement in foreign relations. After discussing federal foreign policy

in such a forum, members of a community may decide to work to take

additional local-based action on a foreign policy issue. For example,

they may work to create a sister-city or sister-state relationship in a

country the U.S. is aiding after a humanitarian disaster; institute

CEDAW principles in their locality’s governance; or divest their

community funds from a country that is committing egregious human

rights abuses. Further, the incidental foreign policy implications of

many localities’ actions are more likely to be brought to the attention of

voters during community discussion. This may influence how voters

look at issues and decisions that they once saw as purely domestic

concerns.

ONCLUSION

Courts should recognize localities as concurrent actors with the

federal government in U.S. foreign policy. The judiciary should strike

335. Ackerman and Fishkin propose that the holiday actually be two days so as many people

could participate as possible while businesses could still operate. Bruce Ackerman & James Fishkin,

Righting the Ship of Democracy, L

EGAL AFFAIRS, Jan./Feb. 2004.

336. Id.

337. James Fishkin, Deliberative Polling: Toward a Better-Informed Democracy, C

ENTER FOR

DELIBERATIVE DEMOCRACY, available at http://cdd.stanford.edu/polls/docs/summary/#exec (last

visited Dec. 24, 2006).

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down localities’ actions that affect foreign relations only when they are

expressly preempted by the executive, Congress, or the Constitution. To

prosper in crafting foreign relations, however, localities need more than

judicial recognition of their coexisting control over American foreign

policy.

First, the federal government must actively support localities’ role

in foreign policy. The federal government should better integrate

localities into its foreign policy decision making. For example, states

are asked for some input by the United States Trade Representative

(USTR) on national trade policy, but they still do not play a lead role

during trade negotiations.

338

In contrast, in Canada provinces play a

direct role in the creation of the nation’s trade policy. In 2003, Ontario

reportedly had more trade policy experts than all 50 states combined.

339

The federal government should also ensure that its foreign policy

bureaucracy has interoperability at all levels of federalism. The USTR,

the State Department, the Treasury Department, and other divisions of

the federal government can provide the information they gather and

analyze not only to federal decision-makers, but also to state and local

decision-makers. In this way, the bureaucratic advantage that the federal

government has in many foreign policy areas is shared as best as

possible.

Second, localities should also view themselves as foreign policy

actors. Localities can organize themselves more effectively to cope with

governing in an internationally saturated environment. For instance,

some states have set up committees to study how trade policy is

affecting them and to craft appropriate responses.

340

Others have set up

sub-cabinets to coordinate the state’s international relations.

341

Finally, citizens themselves must recognize that localities have

338. The United States Trade Representative receives state input when it negotiates

international agreements from state and local officials that serve on its Intergovernmental Policy

Advisory Committee on Trade. Also state contact persons, usually the state chief economic or trade

development officer, are given information and asked for input while the USTR is in negotiations.

Jeremy Meadows, Consulting with States on Trade, S

TATE LEGISLATURES, Jul/Aug 2004, at 22.

339. W

HATLEY, supra note 199, at 44.

340. In Texas, the Senate’s Committee on International Relations and Trade is charged with

examining the North American Free Trade Agreement and the state’s economic relationship with

Mexico. The California Senate Select Committee on International Trade Policy and State

Legislation studies the impacts of international trade agreements on state laws. Topics the

committee considers are environmental protection, natural resource management, human rights

protections, and public safety. Maine passed a bill in 2004 that established a public commission to

advise legislators regarding the economic impact of trade agreements on the state. Nick Steidel,

States Study Trade Policy, S

TATE LEGISLATURES, Jul/Aug 2004, at 23.

341. W

HATLEY, supra note 199, at 41.

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become international actors. Americans may or may not be global

citizens, but they are certainly citizens with global worries. Americans

should view state and local governments as a place to express and act

upon many (although certainly not all) of these concerns.

Public recognition of the importance of localities’ involvement in

foreign policy is critical to ensure that this space is not taken by the

federal government. Localities are far from perfect foreign policy

actors, but American foreign policy is stronger with them engaged in

international relations. Further, without their engagement in foreign

affairs, there is a real danger American democracy will increasingly

become less accessible and participatory. Courts can protect the

available space left for localities in foreign relations, but it is ultimately

Americans who will determine their continuing relevance. As De

Tocqueville warned in Democracy in America in a passage that still

seems fitting today:

[A] highly civilized community can hardly tolerate a local

independence, is disgusted at its numerous blunders, and is apt to

despair of success before the experiment is completed. Again, the

immunities of townships, which have been obtained with so much

difficulty, are least of all protected against the encroachments of the

supreme power. They are unable to struggle, single-handed, against a

strong and enterprising government, and they cannot defend

themselves with success unless they are identified with the customs of

the nation and supported by public opinion.

342

342. DE TOCQUEVILLE, supra note 1, at 62.

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