The power of the states in foreign affairs: The original understanding of foreign policy federalism

Notre Dame Law Review

Volumn 75, Issue 2, 1999, Pages 341-431

  Ramsey, Michael D ^a,b,c  

^a UNIVERSITY OF SAN DIEGO   (United States)

^b DARTMOUTH COLLEGE   (United States)

^c STANFORD LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 0033262848     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (349)

1. Zschernig v. Miller, 389 U.S. 429, 440 (1968); see also LOUIS HENKIN, FOREIGN AFFAIRS AND THE U.S. CONSTITUTION 151-65 (2d ed. 1996) (discussing prevailing views); Harold G. Maier, Preemption of State Law: A Recommended Analysis, 83 AM. J. INT'L L. 832, 832-33 (1989) (describing "consensus" view that "the central Government alone may directly exercise power in foreign affairs").
2. Zschernig v. Miller, 389 U.S. 429, 440 (1968); see also LOUIS HENKIN, FOREIGN AFFAIRS AND THE U.S. CONSTITUTION 151-65 (2d ed. 1996) (discussing prevailing views); Harold G. Maier, Preemption of State Law: A Recommended Analysis, 83 AM. J. INT'L L. 832, 832-33 (1989) (describing "consensus" view that "the central Government alone may directly exercise power in foreign affairs").
3. See U.S. CONST. art. I, § 10; U.S. CONST. art. VI. No State shall enter into any Treaty, Alliance or Confederation; [or] grant Letters of Marque and Reprisal. . . . No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports. . . . No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact . . . with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. U.S. CONST. art. I, § 10.
4. National Foreign Trade Council v. Natsios, 181 F.3d 38, 39 (1st Cir.), cert. granted, 1999 WL 753967 (U.S. Nov. 29, 1999).
5. See 1996 Mass. Adv. Legis. Serv. 130 (Law Co-op.); National Foreign Trade Council v. Baker, 26 F. Supp. 2d 287, 291-92 (D. Mass. 1998), aff'd, Natsios, 181 F.3d at 45; see also infra notes 68-77 and accompanying text (discussing these decisions). A number of local governments have also adopted laws directed at the Burmese military regime. See David Schmahmann & James Finch, The Unconstitutionality of State and Local Enactments in the United States Restricting Business Ties with Burma (Myanmar), 30 VAND. J. TRANSNAT'L L. 175 (1997) (arguing that local sanctions may be unconstitutional); Paul Blustein, Thinking Globally, Punishing Locally: States, Cities Rush to Impose Their Own Sanctions, Angering Companies and Foreign Affairs Experts, WASH. POST, May 16, 1997, at G1 (listing jurisdictions which have passed or are considering sanctions).
6. See 1996 Mass. Adv. Legis. Serv. 130 (Law Co-op.); National Foreign Trade Council v. Baker, 26 F. Supp. 2d 287, 291-92 (D. Mass. 1998), aff'd, Natsios, 181 F.3d at 45; see also infra notes 68-77 and accompanying text (discussing these decisions). A number of local governments have also adopted laws directed at the Burmese military regime. See David Schmahmann & James Finch, The Unconstitutionality of State and Local Enactments in the United States Restricting Business Ties with Burma (Myanmar), 30 VAND. J. TRANSNAT'L L. 175 (1997) (arguing that local sanctions may be unconstitutional); Paul Blustein, Thinking Globally, Punishing Locally: States, Cities Rush to Impose Their Own Sanctions, Angering Companies and Foreign Affairs Experts, WASH. POST, May 16, 1997, at G1 (listing jurisdictions which have passed or are considering sanctions).
7. See generally Howard N. Fenton, III, The Fallacy of Federalism in Foreign Affairs: State and Local Foreign Policy Trade Restrictions, 13 NW. J. INT'L L. & BUS. 563, 578 (1993) (estimating that over 100 state and local South African divestment laws existed at the height of the South African controversy in 1986); id. at 569 (discussing sanctions imposed on companies operating in Northern Ireland); Kevin P. Lewis, Dealing with South Africa: The Constitutionality of State and Local Divestment Legislation, 61 TUL. L. REV. 469 (1987) (discussing state trade sanctions in the 1980s); Robert S. Greenberger, States, Cities Increase Use of Trade Sanctions, Troubling Business Groups and U.S. Partners, WALL ST. J., Apr. 1, 1998, at A20 (discussing trend toward local human rights legislation).
8. See generally Howard N. Fenton, III, The Fallacy of Federalism in Foreign Affairs: State and Local Foreign Policy Trade Restrictions, 13 NW. J. INT'L L. & BUS. 563, 578 (1993) (estimating that over 100 state and local South African divestment laws existed at the height of the South African controversy in 1986); id. at 569 (discussing sanctions imposed on companies operating in Northern Ireland); Kevin P. Lewis, Dealing with South Africa: The Constitutionality of State and Local Divestment Legislation, 61 TUL. L. REV. 469 (1987) (discussing state trade sanctions in the 1980s); Robert S. Greenberger, States, Cities Increase Use of Trade Sanctions, Troubling Business Groups and U.S. Partners, WALL ST. J., Apr. 1, 1998, at A20 (discussing trend toward local human rights legislation).
9. See generally Howard N. Fenton, III, The Fallacy of Federalism in Foreign Affairs: State and Local Foreign Policy Trade Restrictions, 13 NW. J. INT'L L. & BUS. 563, 578 (1993) (estimating that over 100 state and local South African divestment laws existed at the height of the South African controversy in 1986); id. at 569 (discussing sanctions imposed on companies operating in Northern Ireland); Kevin P. Lewis, Dealing with South Africa: The Constitutionality of State and Local Divestment Legislation, 61 TUL. L. REV. 469 (1987) (discussing state trade sanctions in the 1980s); Robert S. Greenberger, States, Cities Increase Use of Trade Sanctions, Troubling Business Groups and U.S. Partners, WALL ST. J., Apr. 1, 1998, at A20 (discussing trend toward local human rights legislation).
10. See, e.g., Tayyari v. New Mexico State Univ., 495 F. Supp. 1365, 1376 (D.N.M. 1980) (invalidating University policy against Iranian nationals adopted in response to the seizure of the United States embassy in Tehran); Board of Trustees v. Mayor of Baltimore, 562 A.2d 720 (Md. 1989) (acknowledging constitutional basis of challenge to city's South Africa divestment law but rejecting challenge on particular facts).
11. See, e.g., Pravin Banker Assocs. v. Banco Popular del Peru, 109 F.3d 850 (2d Cir. 1997) (suggesting that application of state contract law to foreign government would be impermissible if in conflict with federal foreign policy); Torres v. Southern Peru Copper Corp., 965 F. Supp. 899 (S.D. Tex. 1996) (refusing to apply state environmental law to project in foreign country on grounds of interference with federal foreign policy), aff'd, 113 F.3d 540 (5th Cir. 1997); New York Times Co. v. City of New York Comm'n on Human Rights, 361 N.E.2d 963 (N.Y. 1977) (plurality opinion) (invalidating anti-discrimination advertising ordinance as applied to advertisements for employment in South Africa).
12. See, e.g., HENKIN, supra note 1, at 151-65 (describing general view); Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. PA. L. REV. 1245, 1295-97 (1996) (concluding that "the Constitution appears to preclude the states from exercising direct authority over foreign relations"); Brannon P. Denning & Jack H. McCall, Jr., The Constitutionality of State and Local "Sanctions" Against Foreign Countries: Affairs of State, States' Affairs, or a Sorry State of Affairs?, 26 HASTINGS CONST. L.Q. 307 (1999) (arguing that state foreign policy activities are unconstitutional); Fenton, supra note 5, at 573 (arguing that state foreign policy trade restrictions are unconstitutional because they interfere with "the federal government's exercise of foreign relations powers"); Maier, supra note 1, at 832-33 (describing general view); Daniel M. Price & John P. Hannah, The Constitutionality of United States State and Local Sanctions, 39 HARV. INT'L L.J. 443 (1998) (arguing that state and local trade sanctions are unconstitutional); Schmahmann & Finch, supra note 4, at 203-06 (arguing that local sanctions against Burma are unconstitutional); Lee H. Hamilton, Local Interference with Foreign Policy, BOSTON GLOBE, Nov. 9, 1998, at A23 (stating the view of U.S. Representative Lee Hamilton (D. Ind.) that "the Constitution vests complete responsibility for the conduct of foreign relations with the federal government . . . [and] prohibits state laws that . . . impede the federal government's ability to 'speak with one voice when regulating commercial relations with foreign governments'"); Max Vanzi, Wilson Rules Out California Action Against Myanmar Trade: On Asian Trip, Governor Says State-Imposed Sanctions on Firms Doing Business in that Nation Would Be Unconstitutional, L.A. TIMES, Jan. 23, 1997, at A3 (reporting Cal. Governor Pete Wilson's statements that foreign policy initiatives such as sanctions against Burma are reserved to the federal government by the U.S. Constitution). But see Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 VA. L. REV. 1617, 1643-63 (1997) (criticizing non-statutory foreign policy preemption); Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223, 1259-70 (1999) (arguing that modern international relations allow some room for state foreign policy).
13. See, e.g., HENKIN, supra note 1, at 151-65 (describing general view); Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. PA. L. REV. 1245, 1295-97 (1996) (concluding that "the Constitution appears to preclude the states from exercising direct authority over foreign relations"); Brannon P. Denning & Jack H. McCall, Jr., The Constitutionality of State and Local "Sanctions" Against Foreign Countries: Affairs of State, States' Affairs, or a Sorry State of Affairs?, 26 HASTINGS CONST. L.Q. 307 (1999) (arguing that state foreign policy activities are unconstitutional); Fenton, supra note 5, at 573 (arguing that state foreign policy trade restrictions are unconstitutional because they interfere with "the federal government's exercise of foreign relations powers"); Maier, supra note 1, at 832-33 (describing general view); Daniel M. Price & John P. Hannah, The Constitutionality of United States State and Local Sanctions, 39 HARV. INT'L L.J. 443 (1998) (arguing that state and local trade sanctions are unconstitutional); Schmahmann & Finch, supra note 4, at 203-06 (arguing that local sanctions against Burma are unconstitutional); Lee H. Hamilton, Local Interference with Foreign Policy, BOSTON GLOBE, Nov. 9, 1998, at A23 (stating the view of U.S. Representative Lee Hamilton (D. Ind.) that "the Constitution vests complete responsibility for the conduct of foreign relations with the federal government . . . [and] prohibits state laws that . . . impede the federal government's ability to 'speak with one voice when regulating commercial relations with foreign governments'"); Max Vanzi, Wilson Rules Out California Action Against Myanmar Trade: On Asian Trip, Governor Says State-Imposed Sanctions on Firms Doing Business in that Nation Would Be Unconstitutional, L.A. TIMES, Jan. 23, 1997, at A3 (reporting Cal. Governor Pete Wilson's statements that foreign policy initiatives such as sanctions against Burma are reserved to the federal government by the U.S. Constitution). But see Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 VA. L. REV. 1617, 1643-63 (1997) (criticizing non-statutory foreign policy preemption); Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223, 1259-70 (1999) (arguing that modern international relations allow some room for state foreign policy).
14. See, e.g., HENKIN, supra note 1, at 151-65 (describing general view); Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. PA. L. REV. 1245, 1295-97 (1996) (concluding that "the Constitution appears to preclude the states from exercising direct authority over foreign relations"); Brannon P. Denning & Jack H. McCall, Jr., The Constitutionality of State and Local "Sanctions" Against Foreign Countries: Affairs of State, States' Affairs, or a Sorry State of Affairs?, 26 HASTINGS CONST. L.Q. 307 (1999) (arguing that state foreign policy activities are unconstitutional); Fenton, supra note 5, at 573 (arguing that state foreign policy trade restrictions are unconstitutional because they interfere with "the federal government's exercise of foreign relations powers"); Maier, supra note 1, at 832-33 (describing general view); Daniel M. Price & John P. Hannah, The Constitutionality of United States State and Local Sanctions, 39 HARV. INT'L L.J. 443 (1998) (arguing that state and local trade sanctions are unconstitutional); Schmahmann & Finch, supra note 4, at 203-06 (arguing that local sanctions against Burma are unconstitutional); Lee H. Hamilton, Local Interference with Foreign Policy, BOSTON GLOBE, Nov. 9, 1998, at A23 (stating the view of U.S. Representative Lee Hamilton (D. Ind.) that "the Constitution vests complete responsibility for the conduct of foreign relations with the federal government . . . [and] prohibits state laws that . . . impede the federal government's ability to 'speak with one voice when regulating commercial relations with foreign governments'"); Max Vanzi, Wilson Rules Out California Action Against Myanmar Trade: On Asian Trip, Governor Says State-Imposed Sanctions on Firms Doing Business in that Nation Would Be Unconstitutional, L.A. TIMES, Jan. 23, 1997, at A3 (reporting Cal. Governor Pete Wilson's statements that foreign policy initiatives such as sanctions against Burma are reserved to the federal government by the U.S. Constitution). But see Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 VA. L. REV. 1617, 1643-63 (1997) (criticizing non-statutory foreign policy preemption); Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223, 1259-70 (1999) (arguing that modern international relations allow some room for state foreign policy).
15. See, e.g., HENKIN, supra note 1, at 151-65 (describing general view); Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. PA. L. REV. 1245, 1295-97 (1996) (concluding that "the Constitution appears to preclude the states from exercising direct authority over foreign relations"); Brannon P. Denning & Jack H. McCall, Jr., The Constitutionality of State and Local "Sanctions" Against Foreign Countries: Affairs of State, States' Affairs, or a Sorry State of Affairs?, 26 HASTINGS CONST. L.Q. 307 (1999) (arguing that state foreign policy activities are unconstitutional); Fenton, supra note 5, at 573 (arguing that state foreign policy trade restrictions are unconstitutional because they interfere with "the federal government's exercise of foreign relations powers"); Maier, supra note 1, at 832-33 (describing general view); Daniel M. Price & John P. Hannah, The Constitutionality of United States State and Local Sanctions, 39 HARV. INT'L L.J. 443 (1998) (arguing that state and local trade sanctions are unconstitutional); Schmahmann & Finch, supra note 4, at 203-06 (arguing that local sanctions against Burma are unconstitutional); Lee H. Hamilton, Local Interference with Foreign Policy, BOSTON GLOBE, Nov. 9, 1998, at A23 (stating the view of U.S. Representative Lee Hamilton (D. Ind.) that "the Constitution vests complete responsibility for the conduct of foreign relations with the federal government . . . [and] prohibits state laws that . . . impede the federal government's ability to 'speak with one voice when regulating commercial relations with foreign governments'"); Max Vanzi, Wilson Rules Out California Action Against Myanmar Trade: On Asian Trip, Governor Says State-Imposed Sanctions on Firms Doing Business in that Nation Would Be Unconstitutional, L.A. TIMES, Jan. 23, 1997, at A3 (reporting Cal. Governor Pete Wilson's statements that foreign policy initiatives such as sanctions against Burma are reserved to the federal government by the U.S. Constitution). But see Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 VA. L. REV. 1617, 1643-63 (1997) (criticizing non-statutory foreign policy preemption); Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223, 1259-70 (1999) (arguing that modern international relations allow some room for state foreign policy).
16. See, e.g., HENKIN, supra note 1, at 151-65 (describing general view); Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. PA. L. REV. 1245, 1295-97 (1996) (concluding that "the Constitution appears to preclude the states from exercising direct authority over foreign relations"); Brannon P. Denning & Jack H. McCall, Jr., The Constitutionality of State and Local "Sanctions" Against Foreign Countries: Affairs of State, States' Affairs, or a Sorry State of Affairs?, 26 HASTINGS CONST. L.Q. 307 (1999) (arguing that state foreign policy activities are unconstitutional); Fenton, supra note 5, at 573 (arguing that state foreign policy trade restrictions are unconstitutional because they interfere with "the federal government's exercise of foreign relations powers"); Maier, supra note 1, at 832-33 (describing general view); Daniel M. Price & John P. Hannah, The Constitutionality of United States State and Local Sanctions, 39 HARV. INT'L L.J. 443 (1998) (arguing that state and local trade sanctions are unconstitutional); Schmahmann & Finch, supra note 4, at 203-06 (arguing that local sanctions against Burma are unconstitutional); Lee H. Hamilton, Local Interference with Foreign Policy, BOSTON GLOBE, Nov. 9, 1998, at A23 (stating the view of U.S. Representative Lee Hamilton (D. Ind.) that "the Constitution vests complete responsibility for the conduct of foreign relations with the federal government . . . [and] prohibits state laws that . . . impede the federal government's ability to 'speak with one voice when regulating commercial relations with foreign governments'"); Max Vanzi, Wilson Rules Out California Action Against Myanmar Trade: On Asian Trip, Governor Says State-Imposed Sanctions on Firms Doing Business in that Nation Would Be Unconstitutional, L.A. TIMES, Jan. 23, 1997, at A3 (reporting Cal. Governor Pete Wilson's statements that foreign policy initiatives such as sanctions against Burma are reserved to the federal government by the U.S. Constitution). But see Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 VA. L. REV. 1617, 1643-63 (1997) (criticizing non-statutory foreign policy preemption); Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223, 1259-70 (1999) (arguing that modern international relations allow some room for state foreign policy).
17. See, e.g., HENKIN, supra note 1, at 151-65 (describing general view); Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. PA. L. REV. 1245, 1295-97 (1996) (concluding that "the Constitution appears to preclude the states from exercising direct authority over foreign relations"); Brannon P. Denning & Jack H. McCall, Jr., The Constitutionality of State and Local "Sanctions" Against Foreign Countries: Affairs of State, States' Affairs, or a Sorry State of Affairs?, 26 HASTINGS CONST. L.Q. 307 (1999) (arguing that state foreign policy activities are unconstitutional); Fenton, supra note 5, at 573 (arguing that state foreign policy trade restrictions are unconstitutional because they interfere with "the federal government's exercise of foreign relations powers"); Maier, supra note 1, at 832-33 (describing general view); Daniel M. Price & John P. Hannah, The Constitutionality of United States State and Local Sanctions, 39 HARV. INT'L L.J. 443 (1998) (arguing that state and local trade sanctions are unconstitutional); Schmahmann & Finch, supra note 4, at 203-06 (arguing that local sanctions against Burma are unconstitutional); Lee H. Hamilton, Local Interference with Foreign Policy, BOSTON GLOBE, Nov. 9, 1998, at A23 (stating the view of U.S. Representative Lee Hamilton (D. Ind.) that "the Constitution vests complete responsibility for the conduct of foreign relations with the federal government . . . [and] prohibits state laws that . . . impede the federal government's ability to 'speak with one voice when regulating commercial relations with foreign governments'"); Max Vanzi, Wilson Rules Out California Action Against Myanmar Trade: On Asian Trip, Governor Says State-Imposed Sanctions on Firms Doing Business in that Nation Would Be Unconstitutional, L.A. TIMES, Jan. 23, 1997, at A3 (reporting Cal. Governor Pete Wilson's statements that foreign policy initiatives such as sanctions against Burma are reserved to the federal government by the U.S. Constitution). But see Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 VA. L. REV. 1617, 1643-63 (1997) (criticizing non-statutory foreign policy preemption); Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223, 1259-70 (1999) (arguing that modern international relations allow some room for state foreign policy).
18. See, e.g., HENKIN, supra note 1, at 151-65 (describing general view); Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. PA. L. REV. 1245, 1295-97 (1996) (concluding that "the Constitution appears to preclude the states from exercising direct authority over foreign relations"); Brannon P. Denning & Jack H. McCall, Jr., The Constitutionality of State and Local "Sanctions" Against Foreign Countries: Affairs of State, States' Affairs, or a Sorry State of Affairs?, 26 HASTINGS CONST. L.Q. 307 (1999) (arguing that state foreign policy activities are unconstitutional); Fenton, supra note 5, at 573 (arguing that state foreign policy trade restrictions are unconstitutional because they interfere with "the federal government's exercise of foreign relations powers"); Maier, supra note 1, at 832-33 (describing general view); Daniel M. Price & John P. Hannah, The Constitutionality of United States State and Local Sanctions, 39 HARV. INT'L L.J. 443 (1998) (arguing that state and local trade sanctions are unconstitutional); Schmahmann & Finch, supra note 4, at 203-06 (arguing that local sanctions against Burma are unconstitutional); Lee H. Hamilton, Local Interference with Foreign Policy, BOSTON GLOBE, Nov. 9, 1998, at A23 (stating the view of U.S. Representative Lee Hamilton (D. Ind.) that "the Constitution vests complete responsibility for the conduct of foreign relations with the federal government . . . [and] prohibits state laws that . . . impede the federal government's ability to 'speak with one voice when regulating commercial relations with foreign governments'"); Max Vanzi, Wilson Rules Out California Action Against Myanmar Trade: On Asian Trip, Governor Says State-Imposed Sanctions on Firms Doing Business in that Nation Would Be Unconstitutional, L.A. TIMES, Jan. 23, 1997, at A3 (reporting Cal. Governor Pete Wilson's statements that foreign policy initiatives such as sanctions against Burma are reserved to the federal government by the U.S. Constitution). But see Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 VA. L. REV. 1617, 1643-63 (1997) (criticizing non-statutory foreign policy preemption); Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223, 1259-70 (1999) (arguing that modern international relations allow some room for state foreign policy).
19. Chae Chan Ping v. United States, 130 U.S. 581, 606 (1889); see also Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 575 (1840) (Taney, C.J.,) ("It was one of the main objects of the Constitution to make us, so far as regarded our foreign relations, one people, and one nation.").
20. See JACK N. RAKOVE, THE BEGINNINGS OF NATIONAL POLITICS: AN INTERPRETIVE HISTORY OF THE CONTINENTAL CONGRESS 333-400 (1979) (discussing the weaknesses of the Articles of Confederation in foreign policy as a motivation for the Constitutional Convention).
21. THE FEDERALIST No. 42, at 273 (James Madison) (Isaac Kramnick ed., 1987).
22. Foreign affairs preemption has been widely discussed with considerable passing references to the understanding of the constitutional generation, but its validity as an original matter rarely serves as a central focus of study. For a well-developed argument that the Constitution as originally understood does preempt state foreign relations activity, see Spiro, supra note 8, at 1228-41. Professor Clark also provides a concise statement of that view, although using it as a point of departure for an analysis of distinct points. See Clark, supra note 8, at 1295-97. A balanced consideration of the policy arguments ending in a mild endorsement of the doctrine is found in Richard B. Bilder, The Role of States and Cities in Foreign Relations, 83 AM. J. INT'L L. 821 (1989); Leading discussions of the application of the doctrine to particular controversies include Fenton, supra note 5 (S. Afr. and N. Ire.); Lewis, supra note 5 (S. Afr.); Schmahmann & Finch, supra note 4 (Burma). For a discussion of applications of the doctrine in general, see also Maier, supra note 1. A leading critic of the doctrine is Professor Jack Goldsmith, although he has primarily analyzed the matter as an issue of federal common law rather than constitutional law. See Goldsmith, supra note 8, at 1643-63; Jack L. Goldsmith, The New Formalism in United States Foreign Relations Law, 70 U. COLO. L. REV. 1395 (1999); see also A.M. Weisburd, State Courts, Federal Courts, and International Cases, 20 YALE J. INT'L L. 1 (1995). As noted, Professor Spiro, though defending the original validity of the doctrine, has criticized its modern application. See Spiro, supra note 8, at 1259-70; Peter J. Spiro, The States and Immigration in an Era of Demi-Sovereignties, 35 VA. J. INT'L L. 121 (1994); see also Michael H. Shuman, Dateline Main Street: Courts v. Local Foreign Policies, 86 FOREIGN POL'Y 158 (1992) (offering a pragmatic defense of state foreign policy initiatives).
23. Foreign affairs preemption has been widely discussed with considerable passing references to the understanding of the constitutional generation, but its validity as an original matter rarely serves as a central focus of study. For a well-developed argument that the Constitution as originally understood does preempt state foreign relations activity, see Spiro, supra note 8, at 1228-41. Professor Clark also provides a concise statement of that view, although using it as a point of departure for an analysis of distinct points. See Clark, supra note 8, at 1295-97. A balanced consideration of the policy arguments ending in a mild endorsement of the doctrine is found in Richard B. Bilder, The Role of States and Cities in Foreign Relations, 83 AM. J. INT'L L. 821 (1989); Leading discussions of the application of the doctrine to particular controversies include Fenton, supra note 5 (S. Afr. and N. Ire.); Lewis, supra note 5 (S. Afr.); Schmahmann & Finch, supra note 4 (Burma). For a discussion of applications of the doctrine in general, see also Maier, supra note 1. A leading critic of the doctrine is Professor Jack Goldsmith, although he has primarily analyzed the matter as an issue of federal common law rather than constitutional law. See Goldsmith, supra note 8, at 1643-63; Jack L. Goldsmith, The New Formalism in United States Foreign Relations Law, 70 U. COLO. L. REV. 1395 (1999); see also A.M. Weisburd, State Courts, Federal Courts, and International Cases, 20 YALE J. INT'L L. 1 (1995). As noted, Professor Spiro, though defending the original validity of the doctrine, has criticized its modern application. See Spiro, supra note 8, at 1259-70; Peter J. Spiro, The States and Immigration in an Era of Demi-Sovereignties, 35 VA. J. INT'L L. 121 (1994); see also Michael H. Shuman, Dateline Main Street: Courts v. Local Foreign Policies, 86 FOREIGN POL'Y 158 (1992) (offering a pragmatic defense of state foreign policy initiatives).
24. Foreign affairs preemption has been widely discussed with considerable passing references to the understanding of the constitutional generation, but its validity as an original matter rarely serves as a central focus of study. For a well-developed argument that the Constitution as originally understood does preempt state foreign relations activity, see Spiro, supra note 8, at 1228-41. Professor Clark also provides a concise statement of that view, although using it as a point of departure for an analysis of distinct points. See Clark, supra note 8, at 1295-97. A balanced consideration of the policy arguments ending in a mild endorsement of the doctrine is found in Richard B. Bilder, The Role of States and Cities in Foreign Relations, 83 AM. J. INT'L L. 821 (1989); Leading discussions of the application of the doctrine to particular controversies include Fenton, supra note 5 (S. Afr. and N. Ire.); Lewis, supra note 5 (S. Afr.); Schmahmann & Finch, supra note 4 (Burma). For a discussion of applications of the doctrine in general, see also Maier, supra note 1. A leading critic of the doctrine is Professor Jack Goldsmith, although he has primarily analyzed the matter as an issue of federal common law rather than constitutional law. See Goldsmith, supra note 8, at 1643-63; Jack L. Goldsmith, The New Formalism in United States Foreign Relations Law, 70 U. COLO. L. REV. 1395 (1999); see also A.M. Weisburd, State Courts, Federal Courts, and International Cases, 20 YALE J. INT'L L. 1 (1995). As noted, Professor Spiro, though defending the original validity of the doctrine, has criticized its modern application. See Spiro, supra note 8, at 1259-70; Peter J. Spiro, The States and Immigration in an Era of Demi-Sovereignties, 35 VA. J. INT'L L. 121 (1994); see also Michael H. Shuman, Dateline Main Street: Courts v. Local Foreign Policies, 86 FOREIGN POL'Y 158 (1992) (offering a pragmatic defense of state foreign policy initiatives).
25. Foreign affairs preemption has been widely discussed with considerable passing references to the understanding of the constitutional generation, but its validity as an original matter rarely serves as a central focus of study. For a well-developed argument that the Constitution as originally understood does preempt state foreign relations activity, see Spiro, supra note 8, at 1228-41. Professor Clark also provides a concise statement of that view, although using it as a point of departure for an analysis of distinct points. See Clark, supra note 8, at 1295-97. A balanced consideration of the policy arguments ending in a mild endorsement of the doctrine is found in Richard B. Bilder, The Role of States and Cities in Foreign Relations, 83 AM. J. INT'L L. 821 (1989); Leading discussions of the application of the doctrine to particular controversies include Fenton, supra note 5 (S. Afr. and N. Ire.); Lewis, supra note 5 (S. Afr.); Schmahmann & Finch, supra note 4 (Burma). For a discussion of applications of the doctrine in general, see also Maier, supra note 1. A leading critic of the doctrine is Professor Jack Goldsmith, although he has primarily analyzed the matter as an issue of federal common law rather than constitutional law. See Goldsmith, supra note 8, at 1643-63; Jack L. Goldsmith, The New Formalism in United States Foreign Relations Law, 70 U. COLO. L. REV. 1395 (1999); see also A.M. Weisburd, State Courts, Federal Courts, and International Cases, 20 YALE J. INT'L L. 1 (1995). As noted, Professor Spiro, though defending the original validity of the doctrine, has criticized its modern application. See Spiro, supra note 8, at 1259-70; Peter J. Spiro, The States and Immigration in an Era of Demi-Sovereignties, 35 VA. J. INT'L L. 121 (1994); see also Michael H. Shuman, Dateline Main Street: Courts v. Local Foreign Policies, 86 FOREIGN POL'Y 158 (1992) (offering a pragmatic defense of state foreign policy initiatives).
26. Foreign affairs preemption has been widely discussed with considerable passing references to the understanding of the constitutional generation, but its validity as an original matter rarely serves as a central focus of study. For a well-developed argument that the Constitution as originally understood does preempt state foreign relations activity, see Spiro, supra note 8, at 1228-41. Professor Clark also provides a concise statement of that view, although using it as a point of departure for an analysis of distinct points. See Clark, supra note 8, at 1295-97. A balanced consideration of the policy arguments ending in a mild endorsement of the doctrine is found in Richard B. Bilder, The Role of States and Cities in Foreign Relations, 83 AM. J. INT'L L. 821 (1989); Leading discussions of the application of the doctrine to particular controversies include Fenton, supra note 5 (S. Afr. and N. Ire.); Lewis, supra note 5 (S. Afr.); Schmahmann & Finch, supra note 4 (Burma). For a discussion of applications of the doctrine in general, see also Maier, supra note 1. A leading critic of the doctrine is Professor Jack Goldsmith, although he has primarily analyzed the matter as an issue of federal common law rather than constitutional law. See Goldsmith, supra note 8, at 1643-63; Jack L. Goldsmith, The New Formalism in United States Foreign Relations Law, 70 U. COLO. L. REV. 1395 (1999); see also A.M. Weisburd, State Courts, Federal Courts, and International Cases, 20 YALE J. INT'L L. 1 (1995). As noted, Professor Spiro, though defending the original validity of the doctrine, has criticized its modern application. See Spiro, supra note 8, at 1259-70; Peter J. Spiro, The States and Immigration in an Era of Demi-Sovereignties, 35 VA. J. INT'L L. 121 (1994); see also Michael H. Shuman, Dateline Main Street: Courts v. Local Foreign Policies, 86 FOREIGN POL'Y 158 (1992) (offering a pragmatic defense of state foreign policy initiatives).
27. For convenience I will refer only to "state" laws and activities affecting foreign affairs, although I mean that term also to encompass the activities of local government. With respect to the U.S. Constitution the issues raised by state enactments and local enactments appear to be the same, and referring to all such activities as "state" activities avoids needless repetition of the phrase "state and local government."
28. Lewis, supra note 5, at 509 (quoting LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 239 (1st ed. 1972)).
29. See Curtis A. Bradley & Jack L. Goldsmith, Federal Courts and the Incorporation of International Law, 111 HARV. L. REV. 2260, 2267 (1998) ("The most natural inference from these provisions and the enumerated powers structure of the Constitution is that all foreign relations power not denied to the states by Article I, Section 10 falls within the concurrent authority of the state and federal governments.").
30. Lewis, supra note 5, at 509 (quoting LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 239 (1st ed. 1972)).
31. See, e.g., U.S. CONST. amend. XII (correcting the flawed system of selecting the President and Vice President adopted by the Constitution).
32. Zschernig v. Miller, 389 U.S. 429, 440 (1968) (emphasis added).
33. See infra Part II.B.
34. U.S. CONST. art. II, § 1.
35. See infra Part III.
36. See infra Part IV.A.
37. See infra Part IV.B.
38. See U.S. CONST. art. VI; see also Hines v. Davidowitz, 312 U.S. 52 (1941) (invalidating a state alien registration statute on the grounds of conflict with federal law). In the Massachusetts case, opponents of the Burma sanctions also argued that the state law conflicted with, and thus was preempted by, provisions of the federal Omnibus Consolidated Appropriations Act of 1997 relating to Burma. See National Foreign Trade Council v. Baker, 26 F. Supp. 2d 287, 293 (D. Mass. 1998). The district court rejected this claim, see id., but it was accepted as an alternate holding by the court of appeals, see National Foreign Trade Council v. Natsios, 181 F.3d 38, 71-78 (1st Cir.), cert. granted, 1999 WL 753967 (U.S. Nov. 29, 1999).
39. With respect to treaties, preemption occurs through Article VI only if the treaty is "self-executing." John C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 COLUM. L. REV. (forthcoming Dec. 1999) (discussing self-execution under Article VI). Foreign policy preemption is also distinct from so-called "field preemption," by which Congress may preempt an entire field of legislation, such that state regulation in that area, even if not inconsistent with a particular federal law, is excluded on this ground. See Gade v. National Solid Waste Management Ass'n, 505 U.S. 88 (1992). Some "fields" touching upon foreign policy may be preempted by particular federal statutes, but there is no general field preemption statute covering all foreign affairs. Rather, the preemption does not depend upon any affirmative activity of the federal government, but comes from "the Constitution itself." Lewis, supra note 5, at 508 (quoting LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 239 (1st ed. 1972)).
40. With respect to treaties, preemption occurs through Article VI only if the treaty is "self-executing." John C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 COLUM. L. REV. (forthcoming Dec. 1999) (discussing self-execution under Article VI). Foreign policy preemption is also distinct from so-called "field preemption," by which Congress may preempt an entire field of legislation, such that state regulation in that area, even if not inconsistent with a particular federal law, is excluded on this ground. See Gade v. National Solid Waste Management Ass'n, 505 U.S. 88 (1992). Some "fields" touching upon foreign policy may be preempted by particular federal statutes, but there is no general field preemption statute covering all foreign affairs. Rather, the preemption does not depend upon any affirmative activity of the federal government, but comes from "the Constitution itself." Lewis, supra note 5, at 508 (quoting LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 239 (1st ed. 1972)).
41. See U.S. CONST. art. I, § 10.
42. See U.S. CONST. art. I, § 8 ("The Congress shall have Power . . . [t]o regulate Commerce with foreign Nations . . . ."); Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434 (1979) (holding that the Foreign Commerce Clause broadly excludes state regulations of foreign commerce even absent federal legislation); see also De Canas v. Bica, 424 U.S. 351, 354-55 (1976) (suggesting federal exclusivity in core immigration matters by negative implication from the Naturalization Clause of U.S. CONST. art. I, § 8); Karl Manheim, State Immigration Laws and Federal Supremacy, 22 HASTINGS CONST. L.Q. 939, 940-41 (1995) (same); cf. Natsios, 181 F.3d at 62-71 (using dormant Commerce Clause as an alternative basis on which to invalidate Massachusetts law); Baker, 26 F. Supp. 2d at 293 (declining to invalidate the Massachusetts Burma law on dormant Commerce Clause grounds).
43. My inquiry also needs to be distinguished from two related matters. First, it has been argued that the national government has exclusive foreign relations authority as a "necessary concomitant of nationality" independent of any grants of power in the Constitution. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936); see also Clark, supra note 8, at 1295 (relying on Curtiss-Wright, in addition to the Constitution, to conclude that "[e]xclusive federal authority over the conduct of foreign affairs is well established"); Manheim, supra note 27, at 940-41 (relying on Curtiss-Wright to conclude that "federalism, and all of its attendant implications for reserved powers in the states, is simply an inapposite construct when it comes to the external affairs of the nation"). The present inquiry addresses only whether the Constitution precludes state activities in foreign affairs, without considering whether some inherent attribute of federal or state government effects that preclusion. Second, I do not consider the validity of "federal common law" in foreign affairs. It has been argued that federal courts have the ability to fashion "judge-made" rules that may, among other things, preclude some state foreign relations activities. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 424-27 (1964). Commentators have at times discussed this doctrine in the same terms as the theory of constitutional foreign policy preemption. See Clark, supra note 8, at 1292-1306; Goldsmith, supra note 8, at 1626-41; Weisburd, supra note 12, at 5-8. This Article addresses only the effect of the Constitution. If a nonconstitutional basis for federal common law exists, it would not be affected by the present inquiry. See Harold Hongju Koh, Is International Law Really State Law?, 111 HARV. L. REV. 1824, 1825-26 (1998) (arguing that customary international law is part of federal common law without relying on the Constitution). But see Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997) (arguing that customary international law is not part of federal common law). However, to the extent federal common law is seen as an enforcement of constitutional divisions of power, see Clark, supra note 8, at 1272-76, then the validity of the original basis of that law is subsumed within the present inquiry.
44. My inquiry also needs to be distinguished from two related matters. First, it has been argued that the national government has exclusive foreign relations authority as a "necessary concomitant of nationality" independent of any grants of power in the Constitution. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936); see also Clark, supra note 8, at 1295 (relying on Curtiss-Wright, in addition to the Constitution, to conclude that "[e]xclusive federal authority over the conduct of foreign affairs is well established"); Manheim, supra note 27, at 940-41 (relying on Curtiss-Wright to conclude that "federalism, and all of its attendant implications for reserved powers in the states, is simply an inapposite construct when it comes to the external affairs of the nation"). The present inquiry addresses only whether the Constitution precludes state activities in foreign affairs, without considering whether some inherent attribute of federal or state government effects that preclusion. Second, I do not consider the validity of "federal common law" in foreign affairs. It has been argued that federal courts have the ability to fashion "judge-made" rules that may, among other things, preclude some state foreign relations activities. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 424-27 (1964). Commentators have at times discussed this doctrine in the same terms as the theory of constitutional foreign policy preemption. See Clark, supra note 8, at 1292-1306; Goldsmith, supra note 8, at 1626-41; Weisburd, supra note 12, at 5-8. This Article addresses only the effect of the Constitution. If a nonconstitutional basis for federal common law exists, it would not be affected by the present inquiry. See Harold Hongju Koh, Is International Law Really State Law?, 111 HARV. L. REV. 1824, 1825-26 (1998) (arguing that customary international law is part of federal common law without relying on the Constitution). But see Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997) (arguing that customary international law is not part of federal common law). However, to the extent federal common law is seen as an enforcement of constitutional divisions of power, see Clark, supra note 8, at 1272-76, then the validity of the original basis of that law is subsumed within the present inquiry.
45. See Chy Lung v. Freeman, 92 U.S. 275 (1875). On the Court's historical view of state power in foreign affairs, see Goldsmith, supra note 8, at 1641-64, Spiro, supra note 12, at 135-45, and Spiro, supra note 8, at 1228-41. Something of this sort was suggested even earlier, by Chief Justice Taney in Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 575 (1840), although Taney's opinion seems to fall short of an assertion of a generalized foreign policy preemption, see infra note 276.
46. See Chy Lung, 92 U.S. at 276-77.
47. The Court said of the California statute, for example, It is hardly possible to conceive a statute more skilfully [sic] framed, to place in the hands of a single man the power to prevent entirely vessels engaged in a foreign trade, say with China, from carrying passengers, or to compel them to submit to systematic extortion of the grossest kind. Id. at 278. This passage suggests reliance on the dormant Foreign Commerce Clause, a reading supported by some of the opinions in the factually similar Passenger Cases of 25 years earlier. See Passenger Cases, 48 U.S. (7 How.) 283 (1849); see also Goldsmith, supra note 8, at 1652-53 (describing Chy Lung as a dormant Commerce Clause case).
48. Chy Lung, 92 U.S. at 279-80.
49. 130 U.S. 581 (1889).
50. See id. at 599-602.
51. Id. at 605-06.
52. Maier, supra note 1, at 835.
53. 299 U.S. 304 (1936).
54. See id. at 315.
55. Id. at 317.
56. For recent commentary on Curtiss-Wright, see G. Edward White, The Transformation of the Constitutional Regime of Foreign Relations, 85 VA. L. REV. 1 (1999).
57. Curtiss-Wright, 299 U.S. at 318.
58. As indicated earlier, see supra note 28, I exclude from present consideration the possibility that foreign affairs exclusivity arises extraconstitutionally. Compare Charles A. Lofgren, United States v. Curtiss-Wright Export Corp.: An Historical Reassessment, 83 YALE L.J. 1 (1973) (criticizing the theory of extraconstitutional power), with Richard B. Morris, The Forging of the Union Reconsidered: A Historical Refutation of State Sovereignty Over Seabeds, 74 COLUM. L. REV. 1056 (1974) (defending extraconstitutional power in foreign affairs).
59. As indicated earlier, see supra note 28, I exclude from present consideration the possibility that foreign affairs exclusivity arises extraconstitutionally. Compare Charles A. Lofgren, United States v. Curtiss-Wright Export Corp.: An Historical Reassessment, 83 YALE L.J. 1 (1973) (criticizing the theory of extraconstitutional power), with Richard B. Morris, The Forging of the Union Reconsidered: A Historical Refutation of State Sovereignty Over Seabeds, 74 COLUM. L. REV. 1056 (1974) (defending extraconstitutional power in foreign affairs).
60. See United States v. Belmont, 301 U.S. 324 (1937).
61. See id. The specific controversy was whether New York law recognized nationalizations by the Soviet regime. Prior to Belmont, state law recognized nationalizations of property located in the Soviet Union but not nationalizations of property located in New York. The Supreme Court held that President Roosevelt had, by executive agreement, recognized all Soviet nationalizations, including those occurring in New York, and that this action preempted New York's contrary rule. For further discussion of Belmont, see Michael D. Ramsey, Executive Agreements and the (Non)Treaty Power, 77 N.C. L. REV. 133, 142-51 (1998).
62. See Belmont, 301 U.S. at 331-32 (discussing the preemptive effect of treaties under Article VI and asserting that executive agreements, although not approved by the Senate, had the same constitutional effect). I have elsewhere argued that this version of non-Article VI preemption is also indefensible as an original matter, although that point is not directly relevant to the present inquiry. See Ramsey, supra note 44, at 215-31.
63. Belmont, 301 U.S. at 331-32; see also United States v. Pink, 315 U.S. 203, 233 (1942) (reaffirming Belmont and stating that "[p]ower over external affairs is not shared by the States; it is vested in the national government exclusively"); cf. National Foreign Trade Council v. Natsios, 181 F.3d 38, 50 (1st Cir.), cert. granted, 1999 WL 753967 (Nov. 29, 1999) (relying on a similar passage from Belmont stating that "in respect of our foreign relations generally, state lines disappear"); National Foreign Trade Council v. Baker, 26 F. Supp. 2d 287, 293 (D. Mass. 1998) (relying on the quoted passage from Belmont). 47 312 U.S. 52 (1941).
64. Id. at 63.
65. See id. at 72-74.
66. Id. at 63.
67. Belmont, 301 U.S. at 332.
68. Chy Lung, 92 U.S. at 280.
69. 389 U.S. 429 (1968).
70. See, e.g., id. at 435 (finding the law to "radiate some of the attitudes of the 'cold war,' where the search is for the 'democracy quotient' of a foreign regime as opposed to the Marxist theory"); id. at 437 ("As one reads the Oregon decisions, it seems that foreign policy attitudes, the freezing or thawing of the 'cold war,' and the like are the real desiderata.").
71. See id. at 435 n.6.
72. See id. at 437 n.7.
73. See id. at 430-32 & nn.1-2; cf. id. at 443 (Harlan, J., concurring).
74. Id. at 432 (citing Hines v. Davidowitz, 312 U.S. 52 (1941)).
75. Id. at 440. The Court also distinguished its earlier decision in Clark v. Allen, 331 U.S. 503 (1947), which upheld a facial challenge to a similar California statute, on the ground that in Clark no "impairment" had been demonstrated. See Zschernig, 389 U.S. at 432-33.
76. Compare Goldsmith, supra note 8, at 1649 (finding Zschernig to mark a new departure in case law), with Spiro, supra note 12, at 135-45 (viewing Zschernig as an extension of Chy Lung's observations).
77. And since the Court has not directly revisited the issue, the constitutional basis of Zschernig remains unexplained.
78. See, e.g., Lewis, supra note 5, at 481 (suggesting Zschernig can be read narrowly to validate most South Africa divestment legislation); Weisburd, supra note 12, at 5-8 (suggesting that Zschernig can be limited to cases requiring judicial scrutiny of a foreign nation's internal policies). Some weight is placed here on Clark v. Allen, 331 U.S. 503 (1947), which upheld a state inheritance reciprocity statute against facial attack, although it seems that Clark can be explained simply on the basis that there was no evidence of anything more than incidental effect on foreign affairs. For the suggestion that the modern Supreme Court is backing away from a broad application of Zschernig and related cases on the basis of the Court's decision in Barclays Bank PLC v. Franchise Tax Board, 512 U.S. 298 (1994), see Goldsmith, supra note 12, at 1426-27.
79. See Chy Lung v. Freeman, 92 U.S. 275, 279-80 (1875).
80. See supra Part I.B.1 (discussing, among others, Chae Chan Ping, Curtiss-Wright, and Belmont). 65 Hines v. Davidowitz, 312 U.S. 52, 63 (1941).
81. Zschernig, 389 U.S. at 440 (1968).
82. See id. at 434-35.
83. See National Foreign Trade Council v. Baker, 26 F. Supp. 2d 287, 289 (D. Mass. 1998). As the court explained in Baker, The statute authorizes the Operational Services Division (OSD), an agency within the [Massachusetts] Executive Office of Administration and Finance, to establish a "restricted purchase list" of companies "doing business with Burma" as defined by the statute. . . . The Commonwealth [of Massachusetts] is allowed to procure from a "restricted purchase list" company only when: (1) the procurement is essential and the restriction would eliminate the only bid or offer . . . ; (2) the Commonwealth is purchasing certain medical supplies . . . ; or (3) there is no "comparable low bid or offer by an unrestricted bidder." Id. at 289.
84. Id. at 291. The court also quoted the statement of Massachusetts Representative Rushing supporting the passage of the law; "[I]f you're going to engage in foreign policy, you have to be able to identify a goal that you will know when it is realized . . . . [T]he identifiable goal is, free democratic elections in Burma." Id. 70 Id. at 290 (quoting United States v. Belmont, 301 U.S. 324, 327 (1937)).
85. Id. (quoting Zschernig, 389 U.S. at 434-35).
86. Id. at 291.
87. Id. 74 National Foreign Trade Council v. Natsios, 181 F.3d 38, 49 (1st Cir.), cert. granted, 1999 WL 753967 (U.S. Nov. 29, 1999).
88. Id. at 51 (quoting Zschernig, 389 U.S. at 440-41).
89. Id. at 52.
90. Id. at 53. Indeed, the Natsios court may have subtly augmented the test, for Zschernig referred to an incidental effect "in the foreign country," Zschernig, 389 U.S. at 434-35, whereas the Natsios test is whether there is an incidental effect "on foreign relations," Natsios, 181 F.3d at 53.
91. 495 F. Supp. 1365, 1376 (D.N.M. 1980).
92. Id. at 1378.
93. Id. at 1376.
94. New York Times Co. v. City of New York Comm'n on Human Rights, 361 N.E.2d 963, 968 (N.Y. 1977) (plurality opinion) (quoting Zschernig, 389 U.S. at 440); see also id. ("The peace and security of the United States has not been left to the whim of but one State whose actions would have consequences, perhaps dire, for all the States."). The specific issue in New York Times Co. was whether a city ordinance banning advertising by employers who practice discrimination could be applied to employers in South Africa; the court held it could not. See id; see also Bethlehem Steel Corp. v. Board of Comm'rs, 80 Cal. Rptr. 800, 802-05 (Cal. Ct. App. 1969) (invalidating California's selective purchasing law on grounds of foreign policy preemption, with quotations of broad statements of exclusivity in Belmont, Hines, Curtiss-Wright, and Chae Chan Ping). 82 562 A.2d 720 (Md. 1989).
95. Id. at 744 (quoting Zschernig, 389 U.S. at 441).
96. Id. at 746.
97. Id. The Maryland court also argued that the city ordinance did not have a material effect on foreign policy - a position consistent with the law of Zschernig and Clark v. Allen, 331 U.S. 503 (1947), but factually tenuous given the international situation. Laws with foreign relations implications were upheld on similar grounds in Trojan Techns., Inc. v. Commonwealth, 916 F.2d 903, 913-14 (1990) (finding that Pennsylvania's selective purchasing law had only incidental effect on foreign affairs), and Opusunju v. Giuliani, 669 N.Y.S.2d 156, 158 (N.Y. Sup. Ct. 1999) (relying on Clark to find that New York City naming a street corner after a Nigerian dissident had only incidental effect on foreign affairs).
98. Board of Trustees, 562 A.2d at 746; see also Fenton, supra note 5, at 578-79.
99. See Torres v. Southern Peru Copper Corp., 965 F. Supp. 899 (S.D. Tex. 1996), aff'd, 113 F.3d 540 (5th Cir. 1997).
100. See Torres, 965 F. Supp. at 907, aff'd, 113 F.3d at 544.
101. 109 F.3d 850 (2d Cir. 1997).
102. See id. at 855.
103. See Michael D. Ramsey, Escaping "International Comity," 83 IOWA L. REV. 893, 938-51 (1998).
104. Zschernig, 389 U.S. at 440 (1968).
105. See DOUGLAS G. BAIRD, THE ELEMENTS OF BANKRUPTCY 165-66 (1993).
106. See Pravin, 109 F.3d at 855.
107. Cases to the same general effect include Allied Bank International v. Banco Credito Agricola de Cartago, 757 F.2d 516 (2d Cir. 1985) (considering foreign policy implications in deciding whether to apply state contract law), Aquinda v. Texaco, Inc., 945 F. Supp. 625 (S.D.N.Y 1996), rev'd, Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir. 1998), and Sequihua v. Texaco, Inc., 847 F. Supp. 61 (S.D. Tex. 1994) (discussing foreign policy implications of international application of environmental laws).
108. See Breard v. Greene, 523 U.S. 371 (1998).
109. See id. For factual background and commentary, see Symposium, Agora: Breard, 92 AM. J. INT'L L. 666 (1998).
110. Breard claimed a violation of his rights under the Vienna Convention on Consular Relations, Apr. 24, 1963, art. 36(1), 21 U.S.T. 77, 596 U.N.T.S. 261, thus asserting an Article VI basis for his claim. The Supreme Court found, among other things, that Breard's claim under the treaty was procedurally defaulted, and thus that there was no violation of the treaty by Virginia. See Breard, 523 U.S. at 373. For similar controversies arising in the wake of Breard, see Federal Republic of Germany v. United States, 119 S. Ct. 1016 (1999), and Spiro, supra note 8, at 1251-52 nn.127-30.
111. Zschernig, 389 U.S. at 440; see Frederic L. Kirgis, Zschernig v. Miller and the Breard Matter, 92 AM. J. INT'L L. 704 (1998) (making this argument); see also Spiro, supra note 8, at 1252 n.130 (highlighting foreign policy problems arising from the result in Breard). It has also been argued that the President could have required Virginia to stay the execution through the exercise of his foreign policy powers. See Carlos Manuel Vázquez, Breard and the Federal Power to Require Compliance with ICJ Orders of Provisional Measures, 92 AM. J. INT'L L. 683 (1998). In light of Zschernig, however, it is unclear why presidential action would be thought necessary.
112. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, The Abiding Relevance of Federalism to U.S. Foreign Relations, 92 AM. J. INT'L L. 675 (1998).
113. THE FEDERALIST No. 42, supra note 11, at 278.
114. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 316 (Max Farrand ed., 1911) [hereinafter RECORDS] (recording Madison's comments to the Constitutional Convention).
115. See Maier, supra note 1, at 837 (suggesting an implementation of Zschernig by balancing the strength of local interests against the degree of conflict with foreign policy). But see National Foreign Trade Council v. Natsios, 181 F.3d 38, 45 (1st Cir.), cert. granted, 1999 WL 753967 (U.S. Nov. 29, 1999) (rejecting a balancing approach despite assertion of state interest).
116. Maier, supra note 1, at 832-33.
117. Id. at 835.
118. Id.
119. Clark, supra note 8, at 1295-97.
120. Schmahmann & Finch, supra note 4, at 199 ("[T]he nation must speak with one voice, and . . . particularly in foreign matters, the voice must emanate from the federal government.").
121. Bilder, supra note 12, at 827.
122. See Fenton, supra note 5, at 578-79.
123. Id.
124. Schmahmann & Finch, supra note 4, at 203.
125. Bilder, supra note 12, at 827. For example, the negative European reaction to Massachusetts's Burma law has been directed at the United States government. See Theo Emery, State with Foreign Policy Roils Trade Beyond Seas, BOSTON GLOBE, Sept. 21, 1997, at D1; see also Frank Phillips, Massachusetts to Be Warned on Burma Law: U.S. Trade Officials Target Sanctions, BOSTON GLOBE, Apr. 15, 1997, at B5 (noting that "[t]he law has created an international
126. Bilder, supra note 12, at 827. For example, the negative European reaction to Massachusetts's Burma law has been directed at the United States government. See Theo Emery, State with Foreign Policy Roils Trade Beyond Seas, BOSTON GLOBE, Sept. 21, 1997, at D1; see also Frank Phillips, Massachusetts to Be Warned on Burma Law: U.S. Trade Officials Target Sanctions, BOSTON GLOBE, Apr. 15, 1997, at B5 (noting that "[t]he law has created an international furor among America's trading partners and a migraine headache for the Clinton administration").
127. Schmahmann & Finch, supra note 4, at 204.
128. In recent years, a "revisionist" view has emerged challenging what had been a relatively comfortable consensus upon the necessity of foreign affairs preclusion. See, e.g., Goldsmith, supra note 8; Spiro, supra note 8. In particular, Professor Goldsmith emphasizes that no foreign affairs preclusion was actually enforced by the courts until the 1960s, that states previously engaged in substantial foreign affairs activity without objection on this ground, and that Article VI preemption should be adequate protection against truly harmful state activities. See Goldsmith, supra note 8.
129. Bilder, supra note 12, at 829.
130. Fenton, supra note 5, at 588.
131. Bilder, supra note 12, at 821; see also Spiro, supra note 8, at 1228 (noting that "some among the Framers highlighted the special dangers of disruptive state action in foreign affairs").
132. Spiro, supra note 8, at 1228-29; see also Clark, supra note 8, at 1296-97.
133. That is, unsupported by constitutional text or historical context.
134. See, e.g., United States v. Curtiss-Wright Export Co., 299 U.S. 304, 317-18 (1936) (noting the need for the national government to speak with one voice in foreign affairs); Gerald Neuman, The Global Dimension of RFRA, 14 CONST. COMMENTARY 33, 48 (1997) (expanding on the "one-voice" argument). But see Curtis A. Bradley, The Treaty Power and American Federalism, 97 MICH. L. REV. 390, 445 (1998) (minimizing the importance of the "one-voice" argument).
135. See, e.g., United States v. Curtiss-Wright Export Co., 299 U.S. 304, 317-18 (1936) (noting the need for the national government to speak with one voice in foreign affairs); Gerald Neuman, The Global Dimension of RFRA, 14 CONST. COMMENTARY 33, 48 (1997) (expanding on the "one-voice" argument). But see Curtis A. Bradley, The Treaty Power and American Federalism, 97 MICH. L. REV. 390, 445 (1998) (minimizing the importance of the "one-voice" argument).
136. See, e.g., Chy Lung v. Freeman, 92 U.S. 275, 279-80 (1994) (noting dangers of diffused foreign policy authority). As Professor Spiro argues, "[t]he stakes were simply too high. To have tolerated state-level action that at points threatened to embroil the country in warfare, even in the face of inaction by the political branches, now must be taken as a foolish constitutional risk." Spiro, supra note 8, at 1239.
137. Barry Friedman, Valuing Federalism, 82 MINN. L. REV. 317, 397 (1997). Professor Friedman further explains the argument: [T]he best model to describe what is at stake here may be an understanding of innovation as an evolutionary process. Countless state and local governments, remote from one another but facing similar problems, develop numerous twists on solving them. At conferences, and through observation, governments learn of techniques employed elsewhere. The ones that seem sensible, that work, survive; many other ideas die on the vine. This evolutionary process works best precisely because many governments concoct ideas on their own, not a few of which prove to be unsuitable in the long run. One might doubt whether so much creative thinking would emanate from [a] national boardroom or laboratory. Id. at 399-400; see also New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous State may, if the citizens choose, serve as a laboratory and try novel social and economical experiments without risk to the rest of the country.").
138. See Friedman, supra note 123, at 401-02 ("Drinking ages, speed limits, and gun usage are all examples of subjects that have played out on the national stage in recent years despite good arguments in each instance that state cultures differ in important ways that justify decisions being made at a local level.").
139. See Spiro, supra note 12, at 123-34; see also Bradley & Goldsmith, supra note 100 (noting substantial local aspects of state treatment of aliens).
140. For example, in response to Massachusett's Burma law, the European Union and Japan filed a complaint against the United States in the World Trade Organization (WTO). See Spiro, supra note 8, at 1249 n. 120. AWTO resolution of the dispute in favor of the complainants may ultimately authorize retaliatory duties against the United States as a whole, thus imposing the adverse consequences of the Massachusetts law largely upon persons living outside Massachusetts. On the problem of externalities in state foreign policy, see Spiro, supra note 8, at 1246-52.
141. See Spiro, supra note 12, at 123-34.
142. A further aspect of the "local expertise" argument turns on the claim that there are certain areas traditionally within the states' domain, where states have a long history of exposure to what works and what does not. See United States v. Lopez, 514 U.S. 549, 581-83 (1995) (Kennedy, J., concurring); Friedman, supra note 123, at 400. Again, this argument seems attenuated in foreign policy areas in which the states have been, at most, intermittent players.
143. See M.J.C. VILE, THE STRUCTURE OF AMERICAN FEDERALISM 194-95 (1961) ("'[F]oreign affairs' are not autonomous [;] they are always 'about' something - trade, tariffs, land, shipping - and those are all things in which the States can have considerable interest."). For example, even matters appearing to be wholly local, such as city police treatment of detained suspects, may become international issues when the President seeks to pressure other nations on their human rights records.
144. Zschernig, 398 U.S. at 440; see also supra Part I.B-D (discussing academic and judicial theories of state preclusion in foreign affairs).
145. Compare Goldsmith, supra note 12, at 1414-21 (criticizing independent judicial decisionmaking in foreign affairs matters), with Zschernig, 389 U.S. at 440-41 (rejecting reliance on executive in favor of independent judicial evaluation).
146. See Goldsmith, supra note 8, at 1690-97 (discussing lack of judicial expertise in foreign affairs). For an example of the difficulties of independent judicial evaluation, see Allied Bank International v. Banco Credito Agricola de Cartago, 757 F.2d 516 (2d Cir. 1985), in which the Second Circuit initially affirmed a judgment for the foreign defendant on the basis of a supposed U.S. executive policy favoring renegotiation of foreign debt, and then reversed itself upon a submission by the executive branch explaining that there was no such policy. See Ramsey, supra note 91, at 938 (discussing the Allied Bank litigation); Roger M. Zaitzeff & C. Thomas Kunz, The Act of State Doctrine and the Allied Bank Case, 40 BUS. LAW. 449, 450 (1985) (same).
147. Judicial reliance - formal or informal - on the executive in matters of foreign affairs is common in other areas. An example of formal reliance is recognition of governments: the judiciary looks to executive judgment on the matter of what constitutes the legitimate government of a foreign country. An example of informal reliance arises in some versions of the act of state doctrine. That rule generally states that courts will not hold invalid the territorial acts of a foreign country. However, in some descriptions of the doctrine, the rule is not applied where adjudication would not interfere with the executive's conduct of foreign policy - and when interference is debated, the courts tend to be influenced by executive views (although they deny that they are bound by those views). See generally Joseph Dellapenna, Deciphering the Act of State Doctrine, 35 VILL. L. REV. 1 (1990). A similar practice can sometimes be seen in modern dormant Commerce Clause cases. See Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60, 75-76 (1993); id. at 81 (Scalia, J., concurring) ("Having appropriated a power of Congress for its own use, the Court now finds itself, at least in the area of foreign commerce, incompetent to wield that power, and passes it off (out of "due regard" for foreign-policy expertise) to the President.").
148. There is, of course, also the option of precluding the states from specific aspects of foreign policy, as is done by Article I, Section 10 of the Constitution. This, however, does not of itself establish a generalized preclusion - only a preclusion from areas actually mentioned in Article I, Section 10. For the balance of this discussion, I assume the subject matter in question lies outside the Constitution's specific preclusions.
149. This assumes that Congress has an enumerated power to legislate with respect to foreign affairs. In Part III, infra, I discuss the specific derivation of that power. I leave aside the question whether there are any federalism-based limits upon this power. See Printz v. United States, 521 U.S. 898 (1997); Bradley, supra note 121, at 450-60; Neuman, supra note 121, at 48; Carlos Vázquez, Breard, Printz, and the Treaty Power, 70 U. COLO. L. REV. 1317 (1999).
150. See U.S. CONST. art. I, § 10.
151. Zschernig, 389 U.S. at 440 (emphasis added).
152. The principal objection to this formulation is the claim that Congress's silence establishes a federal policy of non-action. Consider, for example, a foreign country with human rights violations to which neither the President (by policy statement) nor Congress (by statute) has objected. One might argue that this non-action establishes \ a federal policy (not just a presidential policy) of tolerating the foreign government, and that a state policy penalizing that government would conflict with the policy of the United States in this regard. The difficulty here is the problem of inferring a congressional policy from congressional silence. Ordinarily in the U.S. system a congressional policy needs to be expressed by statute to have the force of law. See U.S. CONST. Art. VI; I.N.S. v. Chadha, 462 U.S. 919 (1983). Without a statute, it is difficult to say what the policy outlook of a collective body such as Congress may be. In the example given above, it might be that Congress has taken a collective decision not to object to the human rights abuses, but it also might be that Congress has not considered the matter, or that Congress has not been able to reach any decision. Without more, one simply cannot say what Congress's policy is. As the Supreme Court has said in other contexts, "[C]ongress' silence is just that - silence." See, e.g., Tyler Pipe, Inc. v. Washington State Dept. of Revenue, 483 U.S. 232, 261 (1987) (Scalia, J., dissenting in part); Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987). For a related observation, see DAVID CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED YEARS 1789-1888, at 334 (1985) (observing "the recurring fallacy that in some undefined cases congressional inaction was to be treated as if it were permissive or prohibitory legislation - though the Constitution makes clear that Congress can act only by the affirmative vote of both Houses").
153. See Schmahmann & Finch, supra note 4, at 202-07; cf. National Foreign Trade Council v. Natsios, 181 F.3d 38, 45 (1st Cir.), cert. granted, 1999 WL 753967 (U.S. Nov. 29, 1999); National Foreign Trade v. Baker, 26 F. Supp. 2d 287, 291-92 (D. Mass. 1998).
154. See Comprehensive Anti-Apartheid Act of 1986, Pub. L. No. 99-440, 100 Stat. 1086 (1986); Fenton, supra note 5, at 582.
155. A similar point could be made with respect to the Breard case, see supra notes 97-99 and accompanying text. If the President's policy is to defer to the ICJ, Virginia's refusal to honor an ICJ request for a stay of execution obviously interferes with that policy. If the President can override Virginia's action, then the President can unilaterally establish a policy of deference. If the President cannot override Virginia's action directly, but must secure preemptive legislation, then U.S. policy toward the ICJ will need to be a cooperative effort of the President and Congress. Cf. Vazquez, supra note 99. Or, to take an example that has divided courts, assume that the international community objects to state "Buy-American" laws, and further assume that the federal government as a whole could override the Buy American laws in furtherance of national foreign policy. There remains an issue of distribution of powers: must the override come from Congress (as a statute) or the Senate (as a treaty), or can the President alone invalidate the state laws through constitutional preemption. Again, the implications for the relative roles of the President and Congress in foreign policy are substantial.
156. See generally HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION (1980) (contrasting view of foreign policymaking as cooperative with view of foreign policymaking as executive-driven).
157. This conclusion can be avoided if one believes that the dangers of state foreign affairs activity are so great as to overwhelm any possible countervailing consideration. For example, one might think that the danger of a state precipitating a war overrides all other matters. See Chy Lung, 92 U.S. at 279-80; Spiro, supra note 8, at 1239. But this concern seems overstated. Few, if any, state activities actually involve such a danger, even when they affect hostile nations. For example, there was no credible claim that the inheritance statute in Zschernig risked war, even though it was directed at hostile nations at the height of the cold war. Realistically described, the danger is damaged relations, not outright hostilities. On the other hand, if a state activity actually were to threaten war, Congress would be able to act to preempt it. Whatever institutional constraints exist within Congress, it seems unrealistic to suggest that these constraints would prevent Congress from avoiding a war it wanted to avoid. See infra Part II.B. (discussing arguments of the constitutional generation that Congress needed to be given a constitutional power to override state laws with international implications).
158. See RAKOVE, supra note 10, at 333-400 (discussing weakness of the Articles of Confederation in foreign policy as a motivation for the Constitutional Convention).
159. See id.; RECORDS, supra note 102, at 19 (recording Edmund Randolph's opening speech to the Constitutional Convention, listing as his first two indictments of the Confederation government the fact that Congress lacked power to enforce treaties and international law).
160. See RAKOVE, supra note 10, at 333-400.
161. As illustrated by a recent exchange between Professors Spiro and Goldsmith, as a practical matter one's view of this matter likely turns on one's confidence (or lack of confidence) that Congress realistically will be able to detect and preempt dangerous state foreign policy activity. Compare Goldsmith, supra note 8, at 1681-84 (arguing that Congress has such an institutional capacity), with Spiro, supra note 8, at 1246-59 (disputing Congress's capacity in this regard). Whatever one's view of this debate as a functional matter, it is surely difficult to say that the framers inevitably held one view or the other (particularly when they had no prior experience with legislative preemption at the national level). For an argument conflating the framers' recognition of congressional supremacy in foreign affairs with the (much more speculative) contention that the framers favored a generalized national exclusivity in foreign affairs, see, for example, Denning & McCall, supra note 8, at 317-18 & n.51 (deducing exclusivity from a series of statements supporting supremacy).
162. A recent example of this mistaken line of argument is Representative Lee Hamilton's constitutional critique of the Massachusetts Burma trade law. See Hamilton, supra note 8, at A23. Representative Hamilton argues, correctly, that under the Articles of Confederation the national government's incomplete power over foreign affairs was a serious concern, and that the framers designed the Constitution to rectify the problem. However, he too quickly assumes that the problem was fixed by a constitutional preclusion of state foreign policy (such that the Massachusetts law is automatically invalid). Thus he further argues that, absent a constitutional preclusion, "[a] foreign nation has much less incentive to negotiate an agreement with our State Department to remove federal sanctions when a dozen state-imposed sanctions may remain." Id. But this ignores the fact that a treaty relating to sanctions would be drafted to remove state as well as federal sanctions and would preempt state law under Article VI, and that any informal agreement relating to sanctions could be implemented by Congress via legislation also preemptive of state law. Neither of these options would have been available under the Articles of Confederation; they were added to the Constitution to obviate the difficulties Representative Hamilton correctly identifies.
163. I am not aware of any claim that anything in the records of the Constitutional Convention or the ratification debates or, indeed, any other contemporaneous source directly supports the idea of generalized federal exclusivity. The one possible exception is Professor Spiro's quoting of Madison's statement at the convention that "[i]t ought therefore to be effectually provided that no part of a nation shall have it in its power to bring [calamities] on the whole." Spiro, supra note 8, at 1228 n.20; see also 1 RECORDS, supra note 102, at 316 (quoting the same). It is not clear that Professor Spiro offers this in direct support of national exclusivity. In any event, it is not supportive. In making this statement, Madison was defending the "negative" on state laws (that is, a general power to void state laws) he proposed to give to Congress. This proposal was, of course, not adopted; the language that became Article VI was substituted as a more-limited alternative. Madison continued to argue for a broader "negative." However, this says nothing about Madison's views of preemption by means other than congressional action, and indeed the broader context suggests that Madison actually thought congressional action - as reflected in the negative or, later, in the Supremacy Clause - would be sufficient. See infra Part IV.B.
164. See THE FEDERALIST No. 41, at 266 (James Madison) (Isaac Kramnick ed., 1987).
165. Id. at 266-67.
166. See id. at 266-73.
167. THE FEDERALIST No. 42, supra note 11, at 273 (emphasis added).
168. See id. at 273-79.
169. See THE FEDERALIST No. 41, supra note 151, at 267-73 (discussing war power and military and naval powers).
170. See THE FEDERALIST No. 44, at 286-88 (James Madison) (Isaac Kramnick ed., 1987) (discussing, among other matters, the exclusion of states from specific foreign policy matters such as treatymaking and issuing letters of marque).
171. THE FEDERALIST No. 80, at 446 (Alexander Hamilton) (Isaac Kramnick ed., 1987), cited in HENKIN, supra note 1, at 422 n.2, in Hines v. Davidowitz, 312 U.S. 52, 64 n.12 (1941), in Clark, supra note 8, at 1289, in Koh, supra note 28, at 1841 nn.86-87, and in Spiro, supra note 8, at 1228 n.20.
172. See THE FEDERALIST No. 78, at 436 (Alexander Hamilton) (Isaac Kramnick ed., 1987).
173. THE FEDERALIST No. 80, supra note 158, at 445.
174. Id. at 446 (emphasis added).
175. See id. 163 Letter from Thomas Jefferson to James Madison, Oct. 8, 1786, reprinted in CHARLES WARREN, THE MAKING OF THE CONSTITUTION 46 (1937), and quoted in Clark, supra note 8, at 1296 n.242. Jefferson also stated, "My own general idea was, that the States should severally preserve their sovereignty in whatever concerns themselves alone, and that whatever may concern another State, or any foreign nation, should be made a part of the federal sovereignty." Letter from Thomas Jefferson to George Wythe, 1787, quoted in Hines, 312 U.S. at 63 n.11.
176. See HENKIN, supra note 1, at 422 n.2.
177. See THE FEDERALIST Nos. 3-5, at 94-103 (John Jay) (Isaac Kramnick ed., 1987).
178. See THE FEDERALIST No. 81, at 450-58 (Alexander Hamilton) (Isaac Kramnick ed., 1987).
179. The court in Natsios, 181 F.3d at 49-50, also relied on quotes from Federalist Nos. 22 and 45, which have nothing to do with the matter. The quote from Federalist No. 22 contains Hamilton's observations about interstate rivalries, justifying the grant of interstate commerce power to the federal government. See THE FEDERALIST No. 22, at 177-78 (Alexander Hamilton) (Isaac Kramnick ed., 1987). The quote from Federalist No. 45, in which Madison says that "[t]he powers . . . [of] the federal government are few and defined," seems to be evidence against an ill-defined and wide-ranging preemption of state laws. THE FEDERALIST No. 45, at 296 (James Madison) (Isaac Kramnick ed., 1987); see also Denning & McCall, supra note 8, at 317-18 & n.51 (relying on various materials from the ratifying debates urging the need for congressional supremacy in foreign relations matters).
180. See RAKOVE, supra note 10, at 333-400 (discussing weakness of Articles of Confederation in foreign policy as a motivation for the Constitutional Convention).
181. See JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 250 (1997) (discussing concerns over broad executive power).
182. Letter from James Madison to Thomas Jefferson, May 13, 1798, in 1 JAMES MADISON, THE WRITINGS OF JAMES MADISON 140-41 (G. Hunt ed., 1909).
183. See JACK N. RAKOVE, JAMES MADISON AND THE CREATION OF THE AMERICAN REPUBLIC (1976) (emphasizing Madison's concerns over unchecked executive power in foreign affairs); ABRAHAM D. SOFAER, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER: THE ORIGINS 231 & n.* (1977) (discussing Madison's views). Hamilton, on the other hand, expressed a more expansive view of executive power in foreign affairs, and might well have been comfortable with broad powers of executive preemption. See Ramsey, supra note 45, at 212-16 (discussing views of Madison and Hamilton).
184. See JACK N. RAKOVE, JAMES MADISON AND THE CREATION OF THE AMERICAN REPUBLIC (1976) (emphasizing Madison's concerns over unchecked executive power in foreign affairs); ABRAHAM D. SOFAER, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER: THE ORIGINS 231 & n.* (1977) (discussing Madison's views). Hamilton, on the other hand, expressed a more expansive view of executive power in foreign affairs, and might well have been comfortable with broad powers of executive preemption. See Ramsey, supra note 45, at 212-16 (discussing views of Madison and Hamilton).
185. See Clark, supra note 8, at 1296-97; Spiro, supra note 8, at 1228-29; supra notes 107 & 119 and accompanying text.
186. See Act for Sequestering British Property, Act of Oct. 20, 1777, reprinted in 9 THE STATUTES AT LARGE: BEING A COLLECTION OF THE LAWS OF VIRGINIA 379 (Samuel Pleasants ed.) [hereinafter LAWS OF VIRGINIA]; see also NORMAN RISJORD, CHESAPEAKE POLITICS 1781-1800, at 114-19, 129 (1978) (discussing anti-British legislation in Virginia, Maryland, and North Carolina).
187. See Act of Oct. 1779, reprinted in 10 LAWS OF VIRGINIA, supra note 173, at 202, repealed by Act of Oct. 1787, reprinted in 12 id. at 527. Pennsylvania had a similar law. See Act of Apr. 2, 1785, reprinted in 11 STATUTES AT LARGE OF PENNSYLVANIA 1682-1801, at 542 (James Mitchell & Harry Flanders comps., 1903).
188. See, e.g., Act of Oct. 1786, reprinted in 12 LAWS OF VIRGINIA, supra note 173 at 261; Act of Dec. 24, 1785, reprinted in 12 id. at 178; Acts of Oct. 1782, reprinted in 11 id. at 136, 195, 324; Act. of Oct. 1779, reprinted in 10 id. at 66; Act of Apr. 1, 1778, reprinted in 9 id. at 238; Act of Feb. 11, 1778, reprinted in 9 STATUTES AT LARGE OF PENNSYLVANIA, supra note 174, at 201; see also RISJORD, supra note 173, at 196-97 (discussing North Carolina anti-loyalist legislation).
189. See infra Part IV.B & D (discussing foreign relations difficulties arising from Virginia laws); see also ROBERT BRUNHOUSE, THE COUNTER-REVOLUTION IN PENNSYLVANIA 1776-1790, at 140-41 (1942) (discussing British objections to Pennsylvania anti-loyalist activities).
190. See infra Part IV (discussing disputes leading to the drafting of Article VI).
191. See, e.g., Act of Apr. 11, 1799, reprinted in 14 STATUTES AT LARGE OF PENNSYLVANIA, supra note 174, at 337 (Pennsylvania law giving aliens right to own land, subject to certain restriction); Act of Mar. 8, 1792, reprinted in 14 id. at 1607 (same); Act of Feb. 23, 1791, reprinted in 11 id. at 12 (Pennsylvania law permitting rights of inheritance to subjects of countries friendly to the United States). Obviously, states also retained the ability to provoke international incidents by their treatment of individual aliens, see infra Part IV.D.3, a problem of which the constitutional generation was well aware, see 29 JOURNALS OF CONTINENTAL CONGRESS 595 (W. Ford ed., 1906) (recording minutes of Aug. 2, 1785) (reporting congressional debate concerning the De Longchamps incident, in which France sought redress - thought to be beyond Congress's power - for an assault on the French minister in Pennsylvania); 28 id. at 306 (recording minutes of Apr. 27, 1785) (same); cf. Respublica v. De Longchamps, 1 U.S. (1 Dall.) 120 (Pa. Oyer & Term. 1784) (reporting Pennsylvania state court's resolution of the matter).
192. See Zschernig v. Miller, 389 U.S. 429, 429 (1968).
193. See id. at 440-41.
194. Moreover, state enactment of discriminatory legislation in general was well known in the constitutional period. Virginia had a selective purchasing law as early as 1784. See Act of Oct. 1784, reprinted in 11 LAWS OF VIRGINIA, supra note 173, at 494 (providing that arms and munitions needed by the state of Virginia should be purchased from France). During the Confederation period, states actively passed commercial laws attempting to punish or influence the conduct of foreign nations. See, e.g., Act of Sept. 20, 1785, reprinted in 12 STATUTES AT LARGE OF PENNSYLVANIA, supra note 174, at 99 (imposing various retaliatory duties, in particular an extra duty on Portuguese goods "the said duties to continue so long as the flour of America is prohibited from being imported into the kingdom and territories" of Portugal); Act of Oct. 1786, reprinted in 12 LAWS OF VIRGINIA, supra note 173, at 289 (imposing punitive tariffs on British goods in response to British restrictions on U.S. shipping); Act of June 23, 1785, reprinted in 1 LAWS OF COMMONWEALTH OF MASSACHUSETTS 245 (Manning & Loring eds., 1801) (same); see also THE FEDERALIST No. 22, supra note 167, at 177 (noting that "[s]everal States have endeavered to influence the conduct of that kingdom [i.e., Britian]"). And Virginia had inserted itself directly into the U.S.-U.K. dispute over the northwestern frontier, by restoring the rights of British creditors to sue in Virginia courts contingent upon the British evacuating the frontier forts as required by treaty. See Act of Dec. 1787, reprinted in 12 LAWS OF VIRGINIA, supra note 173, at 528. Though many of these particular laws would have been precluded by the specific provisions of the Constitution, the framers plainly knew of the states' propensity to legislate with foreign policy objectives.
195. See generally Henry P. Monaghan, The Protective Power of the Presidency, 93 COLUM. L. REV. 1 (1993) (discussing examples of, in effect, executive lawmaking to protect executive functions).
196. See Wyoming v. Oklahoma, 502 U.S. 437, 454-59 (1992); City of Philadelphia v. New Jersey, 437 U.S. 617 (1978). I do not mean to endorse the dormant Commerce Clause as an original matter, but note only that the argument has a fairly long pedigree. See Smith v. Turner, 48 U.S. (7 How.) 283, 393-94 (1849) (McLean, J.); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 200-10 (1824). However, it has also been subject to powerful originalist critiques. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 609 (1997) (Thomas, J., dissenting).
197. Tarble's Case, 80 U.S. (13 Wall.) 397, 408-09 (1871) (quoting U.S. CONST. art. I, § 8).
198. See id; see also Manheim, supra note 27, at 958-68 (discussing argument that the Naturalization Clause of Article I, Section 8 carries a negative implication excluding states from immigration matters).
199. THE FEDERALIST No. 32, at 220 (Alexander Hamilton) (Isaac Kramnick ed., 1987).
200. In Federalist No. 32 and in related statements in the New York ratifying convention, Hamilton advanced a narrower view of implied exclusion than his opponents, who thought that the Constitution might be read generally to exclude state activity in areas of federal interest. See 2 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 350-60 (Jonathan Elliot ed., 2d ed. 1836) (recounting the debate in the New York convention); THE FEDERALIST No. 32, supra note 186, at 220. In the Virginia convention a similar debate arose concerning whether Congress's power to arm the state militia was exclusive or concurrent. See 3 ELLIOT, supra, at 378-82 (statements of George Mason); id. at 382-83 (statements of James Madison); id. at 391 (statements of George Nicholas); id. at 419-20 (statements of John Marshall). Again, the contenders agreed that a negative implication could arise, but disagreed as to the shelving required. See generally infra Part IV.A.
201. The foreign affairs powers granted in Article I, Section 8 are the power to tax imports, to regulate commerce with foreign nations, to establish a uniform rule on naturalization, to define and punish piracies and felonies on the high seas and offenses against the law of nations, to declare war and grant letters of marque, to raise, regulate, and support armies, and to provide and maintain a navy. See U.S. CONST. art. I, § 8. Even if each of these powers carried a negative implication excluding states from exercising concurrent powers, states would still have significant foreign affairs capacities. The law invalidated in Zschernig, for example, which the Court found to be a substantial interference in foreign affairs, does not easily fit into any of these categories. See Zschernig v. Miller, 389 U.S. 429, 432 (1968) (declining to rely upon the negative implication of any particular clause); see also infra part III.C.
202. See U.S. CONST. art. I, § 8.
203. Or from the powers denied the states: presumably Congress can pass laws clarifying the preemptive effect of the restrictions on the states expressed in Article 1, Section 10. However, none of these restrictions supports a generalized foreign affairs preclusion.
204. See U.S. CONST. art. II, § 2.
205. See Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 576 (1840) (Taney, C.J.) (noting that "the power of appointing and receiving ambassadors . . . undoubtedly belong exclusively to the federal government"). [I]f the general government deemed it to be the true policy of the country to have no communication or connection with foreign nations, by ambassadors, other public ministers or consuls; and refused, on that account, to appoint any; could it be said that this power was dormant in the hands of the government, and that the states might exercise it? . . . There can be but one answer, we think, given to this question. Id. at 577. Whether a state could send or receive diplomatic agents on its own behalf is less clear, especially given historical practice, see Spiro, supra note 8, at 1223, but to the extent this power is thought to be limited, presumably that limitation also arises from a negative implication of Article II, Section 2, see Holmes, 39 U.S. (14 Pet.) at 575-76 (endorsing a total ban on state appointment or reception of diplomatic agents by negative implication of the federal government's power over ambassadors).
206. See U.S. CONST. art. II, § 2. The ensuing discussion assumes that the grant of Commander-in-Chief status carries some substantive powers beyond mere titular head of the armed services.
207. With respect to laws directly regulating federal actors, exclusion of state laws might be conceptualized as a federal immunity rather than as preemption. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 430-31 (1819) (concluding that federal instrumentality had immunity from state taxation, since the power to tax is the "power to destroy"). However, an immunity-based theory would not reach laws indirectly constraining federal power, such as the one at issue in Boyle v. United Technologies Co., 487 U.S. 500 (1987), discussed infra notes 195-202 and accompanying text.
208. Boyle, 487 U.S. at 500. On Boyle generally, see Clark, supra note 8, at 1368-75.
209. See Boyle, 487 U.S. at 502-04.
210. Indeed, Congress had declined to pass a law preempting such claims despite lobbying by the defense contracting industry. See id. at 515-16 & n.1 (Brennan, J., dissenting).
211. Id. at 509.
212. Id. at 508-09; see also Clearfield Trust Co. v. United States, 318 U.S. 363 (1943) (elaborating on the Court's theory of federal common law).
213. Boyle, 487 U.S. at 509.
214. Professor Clark discusses the use of federal common law in Boyle on grounds very similar to those I have used here: namely, that the Constitution assigns military policy to the national government and, by negative implication, removes it from the states. See Clark, supra note 8, at 1368-75; id. at 1372 (concluding that the result in Boyle "appear[s] merely to define and implement the constitutional preemption of state authority in this context"). So described, I do not think my position differs from Professor Clark's - or, for that matter the Court's, see Boyle, 487 U.S. at 504 - other than semantically. I do not see what the Court's reliance on "federal common law" - as opposed to the negative implication of the Constitution - adds to the analysis.
215. Moreover, the principal counterarguments to the result in Boyle appear to concede the existence of preemption based on presidential military policy under some circumstances. One could argue, for example, that (1) the state law would not seriously interfere with presidential policy, or (2) the selection of helicopters is a congressional prerogative under Article I, Section 8's power to "raise and support armies" and thus the state law was not a constitutional problem in the absence of a congressional policy (and the absence of congressional policy is shown by the fact that Congress considered and rejected a preemptive law). See Boyle, 487 U.S. at 515-22 (Brennan, J., dissenting). Both arguments seem to acknowledge that a state law substantially interfering with a power of the President would be unconstitutional.
216. Although Hamilton was speaking, in Federalist No. 32, of an implied preclusion from a power of Congress, his comments appear generally applicable to any power granted to the federal government, including presidential powers. See THE FEDERALIST No. 32, supra note 186, at 220-21.
217. Other than military powers, the President's explicit foreign relations powers are (only) to receive ambassadors and, in conjunction with the Senate, to make treaties and to appoint ambassadors and other public ministers. See U.S. CONST. art. II, § 2.
218. U.S. CONST. art. II, § 1 ("The executive Power shall be vested in a President of the United States of America.").
219. This reading of Article II, Section 1 dates at least to Hamilton's 1793 "Pacificus" essays. & See Alexander Hamilton, Letters of Pacificus, No. 1 (1793), in 4 ALEXANDER HAMILTON, THE WORKS OF ALEXANDER HAMILTON 437-38 (Henry C. Lodge ed., 1904); see also Thomas Jefferson, Opinion of Thomas Jefferson (Apr. 24, 1790), in 5 GEORGE WASHINGTON, THE PAPERS OF GEORGE WASHINGTON 343 (Dorothy Twohig et al. eds., 1996) (stating that "[t]he transaction of business with foreign nations is Executive altogether"). I have elsewhere argued that this is the best reading of Article II, Section 1. See Ramsey, supra note 44, at 178-91; see also John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167, 196-217 (1996) (arguing a similar view).
220. See 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 250-52 (Univ. of Chicago Press 1979) (1765); JEAN LOUIS DE LOLME, CONSTITUTION DE L'ANGLETERRE 70-71 (Dublin, P. Byrne & J. Moore eds., 1793) (Univ. of Chicago Press 1979) (1775); CHARLES DE MONTESQUIEU, THE SPIRIT OF LAWS 69 (R. Hutchins ed., 1952) (1748).
221. See U.S. CONST. art. I, § 8; U.S. CONST. art. II, § 2.
222. By the power to set foreign policy, I mean the power to determine the views of the United States on international matters, and to place the moral and diplomatic force of the United States behind a particular side of an international issue. The communication of that policy is presumably entrusted to the President by virtue of the President's (textually explicit) control over ambassadors, but the power to formulate policy seems unmentioned. See Ramsey, supra note 44, at 210-16; see also id. at 216-18 (discussing the power to enter into minor "nontreaty" agreements as an additional example of unallocated foreign relations power).
223. See id. (discussing historical practice); cf. supra Part II.A (discussing appeals to structural irrationality in constitutional interpretation).
224. See U.S. CONST. art. II, § 1; see also Yoo, supra note 206, at 196-217 (making a similar argument with respect to the residual war-making ability of the executive). This reading also identifies the source of Congress's foreign relations powers. It is now generally assumed that Congress has a power to preempt state laws interfering with foreign policy, and many of the framers also seemed to assume that power. The source of that power is not obvious. However, if the President has foreign policy power under Article II, Section 1, then Congress presumably has the power to legislate in support of that power under Article I, Section 8's power to "make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." U.S. CONST. art. I, § 8. Thus Congress would have the power, for example, to preempt the Oregon law at issue in Zschernig, even though the law did not implicate commerce or any other explicit congressional power under Article I, Section 8. The power would arise from Congress's ability to legislate in support of the President's foreign relations powers - specifically the President's desire to accommodate the Soviet bloc on this matter.
225. See supra notes 195-202 and accompanying text.
226. Compare Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) (en banc) (rejecting Equal Protection Clause challenge to similar policy), with Watkins v. United States Army, 847 F.2d 1329 (9th Cir. 1988) (sustaining Equal Protection Clause challenge), vacated on other grounds, 875 F.2d 699 (1989) (en banc).
227. True, the Burmese human rights record is not directly a presidential policy. However, the partial toleration of the Burmese human rights record is a presidential policy.
228. See supra notes 195-202 and accompanying text (discussing Boyle). 216 Under this argument, it might be more difficult to argue that a state activity is precluded where there is no evident conflict with executive policy. However, there are two responses. First, a presidential policy may consist simply of not antagonizing foreign nations. Thus a state policy which does offend a foreign nation interferes with that policy, making it more difficult for the President to interact with that nation on other matters. For example, on the facts of Torres v. Southern Peru Copper Co., see supra notes 87-88 and accompanying text, the President did not have a particular policy encouraging environmentally destructive development in Peru. However, the President sought amicable relations with Peru and did not seek to contend with Peru over environmental policy. If Texas law were extended to cover activities in Peruvian territory, the resulting insult to Peru would complicate executive relations with Peru on other matters. Second, even a state policy which tracks an executive policy may interfere with executive policymaking. One of the President's advantages in foreign policy is the ability to shift positions in response to external events. However, if there is a parallel state policy, the executive cannot shift so quickly: the state law can be eliminated only by appeal to the state government or by legislation, neither of which may yield prompt results. Indeed, this argument has been raised against Massachusetts's Burma law: the executive's ability to respond to signals of cooperation from the Burmese government is limited by the Massachusetts law, even if the state law, at the particular moment, is not in conflict with executive policy. See Schmahmann & Finch, supra note 4, at 204-07.
229. See Goldsmith, supra note 8, at 1690-98 (discussing institutional limitations on judicial decisionmaking in this area).
230. See First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 773 (1972) (Powell, J., concurring) (criticizing judicial reliance on executive pronouncements in foreign affairs as contrary to separation of powers).
231. See Goldsmith, supra note 8, at 1665-70 (making this argument).
232. See Duckworth v. Arkansas, 314 U.S. 390, 400 (1941) (Jackson, J., concurring) (arguing in the context of the dormant Commerce Clause that states' "restraints are individually too petty, too diversified, and too local to get the attention of a Congress hard pressed with more urgent matters"). These observations, made in the context of the local economic regulations, apply much less readily to matters of great national import such as war and diplomatic rupture, as are by hypothesis involved in foreign affairs matters.
233. Compare Goldsmith, supra note 8, at 1681-83 (arguing that Congress has such an institutional capacity), with Spiro, supra note 8, at 1246-59 (disputing Congress's abilities).
234. See generally Monaghan, supra note 182 (arguing that the President has a "protective power" to engage in lawmaking to protect executive prerogatives).
235. I emphasize that the foregoing reading is subject to difficulties at several stages. First, one may not accept (or may be highly suspicious of) negative implications in general, and thus may not accept doctrines such as the dormant Commerce Clause. Second, one may not accept Boyle, or that, more generally, the President has any preemptive power against indirect state interference even in areas specifically designated as matters of independent executive authority. Third, one may not accept that the Executive Vesting Clause of Article II, Section 1 conveys to the President any substantive powers. Finally, as I elaborate below, one might think that the foreign policy power in particular does not carry preemptive powers. However, since there seems to be no other plausible originalist argument against foreign policy federalism, one holding these doubts should be persuaded of my ultimate conclusion that the Constitution as originally understood did not preclude state interference in foreign affairs.
236. U.S. CONST. art. VI.
237. The 1783 treaty provided that British creditors should meet with "no lawful impediment" to the collection of pre-war debts. Treaty of Paris, Sept. 4, 1783, U.S.-Gr. Brit., art. 4, reprinted in 2 DAVID HUNTER MILLER, TREATIES AND OTHER INTERNATIONAL ACTS OF THE UNITED STATES OF AMERICA 154 (1931). Under the Confederation, however, states declined to remove their "impediments," such that collection was frustrated. The resulting international difficulties severely undermined the Confederation's diplomacy and led the framers to search for a way to make treaties automatically override state law. As Oliver Ellsworth described the problem to the Connecticut Convention, Another ill consequence of this want of energy [in the national government] is that treaties are not performed. The treaty of peace with Great Britain was a very favorable one for us. But it did not happen perfectly to please some of the states, and they would not comply with it. The consequence is, Britain charges us with the breach, and refuses to deliver up the forts on our northern quarter. 2 ELLIOT, supra note 187, at 189; see also 2 id. at 57-60 (recording statement of William Dawes to the Massachusetts convention) ("By the 9th [section] of the old articles, Congress may enter into treaties and alliances . . . but Congress cannot pledge that a single state shall not render the whole treaty . . . a nullity."); 2 id. at 79 (recording statement of Rufus Choate to Massachusetts convention alluding to problems of treaty enforcement and observing, "Do we wish to make a treaty with any nation of Europe, we are told we have no stability as a nation"); 2 id. at 144 (recording statement of George Thatcher to Massachusetts convention listing problems with the Confederation, including fact that "[i]n some states, laws were made directly against the treaty of peace"); RAKOVE, supra note 10, at 29 (discussing difficulties of treaty implementation under the Confederation); JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 686 (New York, Da Capo Press 1970) (1833) (same).
238. See Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) (discussing effect of Supremacy Clause in creating self-executing treaties); STORY, supra note 225, at 685-86 (same). On this point in general, see Ramsey, supra note 44, at 220-25, and Yoo, supra note 25.
239. See Act for Sequestering British Property, Act of Oct. 20, 1777, reprinted in 9 LAWS OF VIRGINIA, supra note 173, at 379-80.
240. The subsequent legal debates concerning this law and its relation to the treaty are discussed in greater detail infra Part IV.B.
241. The Confederation Congress urged the states to comply with the treaty to prevent further hostilities with Britain. See RAKOVE, supra note 10, at 343-44.
242. See SAMUEL FLAGG BEMIS, JAY'S TREATY: A STUDY IN COMMERCE AND DIPLOMACY 101-10 (1923).
243. See, e.g., 4 ELLIOT, supra note 187, at 187-88 (recording statement of William Johnston to North Carolina convention); 4 id. at 215 (recording statement of James Lancaster to North Carolina convention opposing the wording of Article VI because that wording would "repeal the laws of the different states" where inconsistent with treaties); 3 id. at 500-03 (recording statement of Patrick Henry opposing this aspect of the Supremacy Clause on the ground that treaties ought not to be superior to state law); see also Ware v. Hylton, 3 U.S. (3 Dal.) 199, 271, 277 (1796) (Iredell, J.) (describing treaties as preemptive as a result of Article VI).
244. This argument is not wholly conclusive purely as a textual matter, for the Treaty Clause of Article VI is not wholly superfluous even if the Executive Vesting Clause has preemptive effect: Article VI still might serve to make treaties superior to federal law. However, the discussion surrounding Article VI shows that its primary purpose was to preempt state law. See Ramsey, supra note 44, at 220-25; Yoo, supra note 25. Given that context, it seems difficult to argue that state laws inconsistent with treaties were already preempted by another provision of the Constitution, namely Article II, Section 1.
245. See U.S. CONST. art. I, § 10 (excluding states from war, treatymaking, keeping troops or warships in peacetime, and issuing letters of marque and reprisal).
246. See VILE, supra note 129, at 194-95 (discussing the inherent difficulty of defining a field of "foreign relations" activity).
247. See U.S. CONST. an. I, § 8 (giving Congress the power to declare war, issue letters of marque and reprisal, and maintain an army and a navy); U.S. CONST. art. II, § 2 (giving the President, with consent of the Senate, the power of treatymaking).
248. See THE FEDERALIST No. 44, supra note 157, at 286-89 (discussing the specific limitations on the states in Article I, Section 10).
249. THE FEDERALIST No. 32, supra note 186, at 220.
250. Id. at 220-21.
251. See 2 ELLIOT, supra note 187, at 332 (recording the argument of Melancton Smith to New York ratifying convention); 2 id. at 355 (recording the argument of Alexander Hamilton to New York ratifying convention responding to antifederalist argument); see also THE FEDERALIST No. 32, supra note 186, at 220 (alluding to the antifederalist position in this matter).
252. See THE FEDERALIST No. 32, supra note 186, at 221 ("There is plainly no expression in the granting clause which makes that power [i.e., taxation] exclusive in the Union. There is no independent clause or sentence which prohibits the states from exercising it.").
253. Id. at 222.
254. Id. Hamilton's example of repugnancy is not illuminating: he posits the Naturalization Clause, which gives Congress the power to create a uniform rule, and, says Hamilton, "This must necessarily be exclusive; because if each state had the power to prescribe a distinct rule, there could not be a uniform rule." Id. at 221. However, if Congress did prescribe a uniform rule pursuant to this power, one would think state laws would be preempted, in any event, by Article VI; and if Congress did not exercise its power to prescribe a uniform rule, Hamilton does not really explain why (or even if) state laws would be precluded. A better example of "repugnancy" is probably the Commander-in-Chief power discussed above. See supra note 193. States cannot have the power to command the military, else the President would not be its ultimate commander - and thus existence of the state power simply contradicts (or, in Hamilton's phrase, is "repugnant to") the constitutional grant of power.
255. One may also characterize the President's policy as pursuit of harmonious relations with Europe and Japan. The Massachusetts law somewhat undermines that policy, as these nations object to Massachusetts's limitations on their corporations' commercial activities. See Spiro, supra note 8, at 1249 & n.10. However, the Massachusetts law does not prevent the President from pursuing harmonious relations; it only makes that pursuit more difficult.
256. Statements by the Constitution's supporters in the Virginia convention are to a similar effect. George Nicholas, for example, argued with respect to the militia, The power of arming them [the militia] is concurrent between the general and state governments; for the power of arming them rested in the state governments before; and although the power be given to the general government, yet it is not given exclusively; for, in every instance where the Constitution intends that the general government shall exercise power exclusively of the state governments, words of exclusion are particularly inserted. Consequently, in every case where such words are not inserted, the power is concurrent to the state governments and Congress, unless where it is impossible that the power should be exercised by both. 3 ELLIOT, supra note 187, at 391; see also id. at 419 (recording the statement of John Marshall) ("The truth is, that when power is given to the general legislature, if it was in the state legislature before, both shall exercise it; unless there be an incompatibility in the exercise by [the one] to that by the other, or negative words precluding the state governments from it.").
257. Thus, Chy Lung's fear of state-precipitated war is greatly overstated. See Chy Lung, 92 U.S. at 179-80. Congress's power obviates substantial concerns on this score. It seems reasonable to suppose that Congress would be capable of acting decisively where war would otherwise result.
258. THE FEDERALIST No. 32, supra note 186, at 221-22.
259. Randolph, in his opening address to the Convention, listed as his first criticism of the government under the Articles the fact that "[C]ongress . . . could not cause infractions of treaties or of the law of nations, to be punished: that particular states might by their conduct provoke war without controul." 1 RECORDS, supra note 102, at 19.
260. Id. at 21.
261. See id. at 47 (on motion of Franklin).
262. Id. at 164.
263. Id. at 162.
264. Id. at 169.
265. See id. at 165-72.
266. Id. at 242-45. In debating the New Jersey plan, Madison observed, "It ought therefore to be effectually provided that no part of a nation shall have it in its power to bring them [such calamities] [i.e. disputes with foreign nations] on the whole." Id. at 316. In context, it is plain that Madison sought, as a remedy for this difficulty, a preemptive power of Congress to override troublesome state legislation. See supra note 149 (discussing this quote).
267. See 1 RECORDS, supra note 102, at 21-29.
268. One may speculate that the opposition to Madison's "negative," which generally came from the smaller states, arose in part from the fear that their interests would not be represented in Congress. Once some protection was given the smaller states through the mechanism of the Senate, adopted in general outlines from the New Jersey plan, the smaller states were willing to accede to the somewhat wider preemptive powers of Congress reflected in the final document. See RAKOVE, supra note 169, at 169-80 (suggesting this interpretation). However, this further suggests that there were not thought to be broad preemptive powers in the executive, which would have upset this compromise.
269. See I RECORDS, supra note 102, at 187.
270. See id. at 358-63 (exports); id. at 440-41 (embargoes); id. at 624-26 (tonnage duties).
271. See id. at 440-41.
272. See id. at 624-26.
273. See id. at 440-41.
274. Id.
275. See id.
276. See id. at 359 (recording the argument of John Langdon that if states were not prohibited by specific language from taxing exports, they would have an unlimited power to do so); id. at 625 (recording the argument of Gouverneur Morris that if states were not prohibited by specific language from laying tonnage duties, they would have power to do so).
277. See supra notes 235-44 and accompanying text.
278. See RAKOVE, supra note 10, at 29; THE FEDERALIST Nos. 2-5, at 90-103 (John Jay) (Isaac Kramnick ed., 1987) (discussing external dangers).
279. See supra note 225.
280. This arises from the provision that treaties could be approved by two-thirds of a quorum of the Senate.
281. Federal Farmer: Letters to the Republican, IV, Oct. 12, 1787, reprinted in 14 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 43 (Merrill Jensen ed., 1976-97) [hereinafter DOCUMENTARY HISTORY].
282. Brutus, II, New York Journal, Nov. 1, 1787, reprinted in 14 DOCUMENTARY HISTORY, supra note 266, at 529.
283. See 4 ELLIOT, supra note 187, at 187, 215 (North Carolina); 3 id. at 502-03 (Virginia); Yoo, supra note 25.
284. See 3 ELLIOT, supra note 187, at 60 (recording the statements of Patrick Henry).
285. For example, there likely was a consensus, largely unspoken, that the power to send ambassadors was exclusive to the President-plus-senate. Cf. Spiro, supra note 8, at 1229 n.24; supra notes 190-92 and accompanying text.
286. See also Zschernig v Miller, 389 U.S. 429, 440-41 (1968) (adopting a seemingly broad rule that "impair[ment]" of federal foreign policy is unconstitutional); Bilder, supra note 12, at 825 (generally endorsing a limit on state involvement in foreign policy, but indicating an unease at the breadth of the Zschernig claim); Kergis, supra note 99, at 705-08 (suggesting a broad reading of Zschernig); Weisburd, supra note 12, at 5-8 (suggesting a narrow reading of Zschernig). Compare Lewis, supra note 5, at 509-15 (defending South Africa divestment legislation), with Fenton, supra note 5, at 573 (criticizing South Africa divestment legislation).
287. 3 U.S. (3 Dall.) 199 (1796).
288. Other examples are available, including the debates over the "negro seamen" acts passed by the southern states prior to the civil war, recounted in Goldsmith, supra note 8, at 1643-58. Two counterexamples have been suggested: the opinion of Justice Johnson, at the circuit court level, with respect to the negro seaman acts, Elkison v. Deliesseline, 8 F. Cas. 493, 494 (C.C.D. S.C. 1823) (No. 4366), and the opinion of Chief Justice Taney, for four members of the Supreme Court, in Holmes v. Jennison, 39 U.S. (14 Pet.) 540 (1840). See generally Spiro, supra note 8, at 1230-36 & nn.38-43, 55-61. Both opinions argue against a challenged state power in foreign affairs. However, although both contain some broad language on the proper role of the states in foreign affairs, both rely on specific clauses of the Constitution in support of their immediate conclusions. See Jennison, 39 U.S. (14 Pet.) at 557 (relying on Article I, Section 10's prohibition of state agreements with foreign nations); id. at 575-76 (in alternative holding, relying on negative implication of Treaty Clause and Ambassador Clauses of Article II, Section 2); Elkison, 8 F. Cas. at 495 (relying on dormant Commerce Clause and preemptive effect of a U.S.-U.K. treaty). Nationalization of foreign relations powers, in both instances, seems described more as a goal than as an operative constitutional provision. Despite his Jennison opinion, Chief Justice Taney would have upheld the state foreign policy interference at issue in the Passenger Cases, 48 U.S. (7 How.) 283 (1849), because he found no specific constitutional provision. See supra notes 302-17 and accompanying text.
289. See supra notes 225-31 and accompanying text. On the British debts generally, see BEMIS, supra note 230, at 103 & n.18 (reporting almost five million dollars in aggregate U.S. private debt to British creditors).
290. See Act for Sequestering British Property, Act of Oct. 20, 1777, reprinted in 9 LAWS OF VIRGINIA, supra note 173, at 377-80. This provision became a major benefit to the debtors - and was widely used by them - as Virginia's paper currency lost value against the British currency. See JEAN EDWARD SMITH, JOHN MARSHALL: DEFINER OF A NATION 153 (1996) (describing the practical effects of the legislation).
291. See 9 LAWS OF VIRGINIA, supra note 173, at 75-76.
292. Treaty of Paris, supra note 225, art. 4.
293. See RAKOVE, supra note 10, at 343-44.
294. See SMITH, supra note 278, at 153-54 & n.55.
295. See U.S. CONST. art. III; U.S. CONST. art. VI. On the importance of the debt controversy to the drafters of these provisions, see Ware v. Hylton, 3 U.S. (3 Dall.) 199, 277 (1796) (Iredell, J.), and STORY, supra note 225, at 686.
296. See SMITH, supra note 278, at 154-55 (noting that after the federal courts were established in 1790, several hundred such suits were filed by British creditors in Virginia alone).
297. On Marshall's role, see SMITH, supra note 278, at 153-58.
298. See id. at 155-56; 5 JOHN MARSHALL, THE PAPERS OF JOHN MARSHALL 264-94 (Charles F. Hobson ed., 1987) (reproducing Marshall's pleadings in the initial debt case, Jones v. Walker, 13 F. Cas. 1059 (C.C. Va. no date reported) (No. 7507)); Charles F. Hobson, The Recovery of British Debts in the Federal Circuit Courts of Virginia, 1790 to 1797, 92 VA. MAG. HIST. & BIOG. 176 (1984).
299. 3 U.S. (3 Dall.) 199 (1796). The initial debt case was Jones, 13 F. Gas. at 1059, which was argued in 1791. See Hobson, supra note 286, at 187. Ware was substituted when the plaintiff in Jones died during the pendency of the case. See id.; SMITH, supra note 278, at 157.
300. In modern discourse, Ware is primarily known for its affirmation that state laws inconsistent with treaty obligations are void under Article VI of the
301. The lead opinion, by Circuit Justice James Iredell, is reported at 3 U.S. (3 Dall.) 199, 256-80 (1796) (reprinting the circuit court opinion). Circuit Justice Jay dissented as to the second point. See Jones, 13 F. Cas. at 1061.
302. See Ware, 3 U.S. (3 Dall.) at 199. On the Court's disposition, see SMITH, supra note 278, at 153-58.
303. See id. Justices Chase, Paterson, Wilson, and Gushing each wrote separately; Chief Justice Jay did not participate, and Justice Iredell adhered to the view he expressed in the lower court. See id. 292 See MARSHALL, supra note 286, at 300-13 (recording the argument of defendant's counsel). At the Supreme Court, Marshall argued first that the Virginia law allowed Hylton to discharge the debt by payment to Virginia, and having established that point to his satisfaction, he concluded that the only remaining question was "whether [the] treaty revived the debt in favour of [Ware]." Ware, 3 U.S. (3 Dall.) at 213 (summarizing defendant's argument).
304. See 3 U.S. (3 Dall.) at 256-80 (Iredell, J.).
305. See id.; see also id. at 217-18 (summarizing plaintiffs argument that the issue turned upon "the operation of the treaty of peace").
306. STANLEY ELKINS & ERIC MCKITRICK, THE AGE OF FEDERALISM 218-19, 247, 252 (1993).
307. See BEMIS, supra note 230, at 101-10 (discussing British countermeasures).
308. ELKINS & MCKITRICK, supra note 295, at 408 (discussing U.S.-U.K. agreement of 1794).
309. See id.
310. A second argument pursued in this litigation - though not adopted by the Court - was that the Virginia law was invalid as contrary to the law of nations. See Ware, 3 U.S. (3 Dall.) at 220 (summarizing plaintiffs argument). Although that line of argument does suggest that some members of the constitutional generation thought that state law was constrained by international law, it does not suggest any conception of a generalized constitutional preclusion of states from foreign affairs. Any such preclusion, had it been recognized, would have been applicable to the Virginia law whether or not that law violated the law of nations. Plaintiffs counsel also argued that the power to confiscate debts was a national power on the ground that it was delegated to the United States government as an aspect of the war power. This is as close as anyone came to asserting a generalized foreign affairs preclusion; however, the argument turned upon a specific power - war - not a generalized foreign relations power: If the power to confiscate debts existed, it existed in the United States, and not in the individual states. It has been admitted, that Congress possessed the power of war and peace; and that the right of confiscation emanates from that source. . . . It is absurd to suppose that Congress and Virginia could, at the same time, possess the powers of war and peace. Id. at 219 (recording argument of plaintiffs counsel) (emphasis added). In any event, no member of the Court made anything of that argument, nor did the defendant's counsel address it. See id.
311. See 5 MARSHALL, supra note 286, at 300-13 (recording the argument of defendant's counsel that the 1777 statute should stand because it was consistent, by a technical reading, with the provisions of the treaty).
312. 36 U.S. (11 Pet.) 102 (1837).
313. 48 U.S. (7 How.) 283 (1849).
314. 53 U.S. (12 How.) 299 (1851).
315. See Miln, 36 U.S. (11 Pet.) 106-15.
316. See id. at 142-53.
317. See id. at 143-53.
318. Passenger Cases, 48 U.S. (7 How.) at 283.
319. Smith, 48 U.S. (7 How.) at 283-84 (quoting 1 N.Y.R.S., tit. 4, § 7); Norris, 43 U.S. (7 How.) at 285.
320. Norris, 48 U.S. (7 How.) at 288 (summarizing plaintiff's argument).
321. Id. at 351.
322. See id. at 401-03 (McLean, J.) (quotation omitted).
323. See id. at 412 (Wayne, J.).
324. Id. at 464-71 (Taney, C.J., dissenting). Taney further argued that because "[t]here is no conflict . . . between the law of Massachusetts and any treaty or law of the United States," the law should stand. Id. at 473 (emphasis added). Significantly, he did not say that there was no conflict between any "treaty, law or foreign policy of the United States," which would have been the appropriate inquiry had the Court accepted the theory of executive preemption in foreign affairs.
325. Id. at 505-06 (Daniel, J., dissenting).
326. See id. at 509-12 (Daniel, J., dissenting); id. at 522-23 (Woodbury, J., dissenting).
327. Id. at 568 (Woodbury, J., dissenting).
328. See id.
329. On the Caroline incident, see David J. Bederman, The Cautionary Tale of Alexander McLeod: Superior Orders and the American Writ of Habeas Corpus, 41 EMORY L.J. 515 (1992); R.Y. Jennings, The Caroline and McLeod Cases, 32 AMER. J. INT'L. L. 82 (1938).
330. On the Caroline incident, see David J. Bederman, The Cautionary Tale of Alexander McLeod: Superior Orders and the American Writ of Habeas Corpus, 41 EMORY L.J. 515 (1992); R.Y. Jennings, The Caroline and McLeod Cases, 32 AMER. J. INT'L. L. 82 (1938).
331. Letter from Henry Fox, British Minister, to Daniel Webster, U.S. Secretary of State (Mar. 12, 1841), in 29 BRITISH AND FOREIGN STATE PAPERS 1840-1841, at 1127 (London, Ridgway & Sons 1857) [hereinafter BRITISH PAPERS].
332. Letter from Daniel Webster, U.S. Secretary of State, to Henry Fox, British Minister (Apr. 24, 1841), in 24 BRITISH PAPERS, supra note 319, at 1129.
333. See id.; Bederman, supra note 318, at 519-20.
334. See supra note 32 and accompanying text.
335. Letter from Henry Fox, British Minister, to Daniel Webster, U.S. Secretary of State, supra note 320, at 1376-77.
336. Bederman, supra note 318, at 521 (footnote omitted).
337. The New York courts refused to dismiss the case as a matter of law. See People v. McLeod, 25 Wend. 483 (N.Y. Sup. Ct. 1841); Bederman, supra note 318, at 525.
338. See Act of Aug. 29, 1842, ch. 257, 5 Stat. 539 (codified at 28 U.S.C. § 2241 (c) (4) (1994)). For an account of the proposal, debate, and passage of this bill, see Bederman, supra note 318, at 526-31.
339. See McLeod, 25 Wend. at 528-54.
340. Moreover, the issue had arisen at least twice before in less prominent but similar cases. In 1794, Pennsylvania authorities arrested the French former governor of Guadeloupe in connection with acts committed during his tenure. Despite French protests, U.S. Attorney General Bradford concluded that the matter must necessarily be handled at the state level. See 1 Op. Att'y Gen. 43 (1794). Similarly, in 1805, a Spanish consular agent was imprisoned, also in Pennsylvania, and a federal circuit court concluded that it had no power to interfere with state processes despite the obvious foreign relations implications of the matter. See Ex parte Cabrera, 4 F. Cas. 964, 966 (C.C.D. Pa. 1805) (No. 2278). On both matters, see Bederman, supra note 318 at 526-27. No one connected to either case suggested that the state action might be precluded by the federal government's foreign relations power.
341. See supra Part IV.D.1.
342. See supra Part IV.D.2.
343. See supra Part IV.D.2.
344. See supra Part IV.D.1.
345. See supra Part IV.D.2.
346. See supra Part IV.D.3.
347. Zschernig v. Miller, 389 U.S. 429, 440-41 (1968).
348. Hines v. Davidowitz, 312 U.S. 52, 63 (1941).
349. See supra Part IV.D.1 (discussing the Virginia laws on British debts)