Statutory foreign affairs preemption

Supreme Court Review

Volumn 2000, Issue , 2000, Pages 175-222

  Goldsmith, Jack ^a  

^a NONE

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EID: 0347614844     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/scr.2000.3109679     Document Type: Article

References (211)

1. See United States v Lopez, 514 US 549, 564 (1995) (asserting that Congress's power does not extend to "family law (including marriage, divorce, and child custody)"); id at 624 (Breyer, J, dissenting) (insinuating the same); but see Jill Elaine Hasday, Federalism and the Family Reconstructed, 45 UCLA L Rev 1297 (1998) (arguing the contrary).
2. See United States v Lopez, 514 US 549, 564 (1995) (asserting that Congress's power does not extend to "family law (including marriage, divorce, and child custody)"); id at 624 (Breyer, J, dissenting) (insinuating the same); but see Jill Elaine Hasday, Federalism and the Family Reconstructed, 45 UCLA L Rev 1297 (1998) (arguing the contrary).
3. See United States v Lopez, 514 US 549, 564 (1995) (asserting that Congress's power does not extend to "family law (including marriage, divorce, and child custody)"); id at 624 (Breyer, J, dissenting) (insinuating the same); but see Jill Elaine Hasday, Federalism and the Family Reconstructed, 45 UCLA L Rev 1297 (1998) (arguing the contrary).
4. In re Lazaro Gonzalez, 2000 WL 492102 (Fla Cir Ct 2000). The federal courts eventually upheld the Attorney General's authority to determine that Elian's father was Elian's exclusive representative in applying for asylum. Gonzalez v Reno, 212 F3d 1338 (11th Cir 2000), cert denied, 120 S Ct 2737 (2000).
5. See Jack L. Goldsmith, Federal Courts, Federalism, and Foreign Affairs, 83 Va L Rev 1617, 1670-80 (1997).
6. This was true, for example, of Breard v Greene, 523 US 371 (1998).
7. This issue has been vetted most thoroughly in the treaty context. See Curtis A. Bradley, The Treaty Power and American Federalism, 97 Mich L Rev 390 (1998) (arguing for federalism-based limitations on the treaty power); David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich L Rev 1075 (2000) (challenging this view); Curtis A. Bradley, The Treaty Power and American Federalism - Part II 99 Mich L Rev 98 (2000) (rebuttal).
8. This issue has been vetted most thoroughly in the treaty context. See Curtis A. Bradley, The Treaty Power and American Federalism, 97 Mich L Rev 390 (1998) (arguing for federalism-based limitations on the treaty power); David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich L Rev 1075 (2000) (challenging this view); Curtis A. Bradley, The Treaty Power and American Federalism - Part II 99 Mich L Rev 98 (2000) (rebuttal).
9. This issue has been vetted most thoroughly in the treaty context. See Curtis A. Bradley, The Treaty Power and American Federalism, 97 Mich L Rev 390 (1998) (arguing for federalism-based limitations on the treaty power); David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich L Rev 1075 (2000) (challenging this view); Curtis A. Bradley, The Treaty Power and American Federalism - Part II 99 Mich L Rev 98 (2000) (rebuttal).
10. 530 US 363 (2000).
11. For an attempt at a positive theory of preemption, see David B. Spence and Paula Murray, The Law, Economics, and Politics of Federal Preemption Jurisprudence: A Quantitative Analysis, 87 Cal L Rev 1125 (1999).
12. Like the courts and parties in Crosby, I will refer to the country as Burma.
13. See Mass Ann Laws ch 7, §§ 22G-M, § 40 F1/2 (1997).
14. See National Foreign Trade Council v Natsios, 181 F3d 38, 47 (1999).
15. Mass Ann Laws ch 7, § 22H(a), § 22J (1997). The statute exempts news organizations, telecommunications firms, and medical suppliers from its scope. See Mass Gen Laws ch 7, § 22H(e), § 22I (1997).
16. See Mass Gen Laws ch 7, § 22H(b); § 22I.
17. See Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997, § 570, 110 Stat 3009-166 to 3009-167.
18. See Edward T. Swaine, Crosby as Foreign Relations Law, 41 Va J Intl L 481 (2001).
19. Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997, § 570(a).
20. Id at § 570(b).
21. Id at § 570(c).
22. National Foreign Trade Council v Baker, 26 F Supp 2d 287, 291 (Mass 1998).
23. National Foreign Trade Council v Natsios, 181 F3d 38, 49-57 (1st Cir 1999).
24. Id at 58-71.
25. Id at 76.
26. Id at 71-75.
27. Crosby, 530 US 363. Justice Scalia filed an opinion, joined by Justice Thomas, concurring in the judgment. The opinion objected to the majority opinion's reliance on legislative history. See id at 371.
28. Id at 361-62.
29. Id at 364.
30. Id at 366.
31. Id (internal quotations omitted).
32. English v General Electric, 496 US 72, 79 (1990); sec also Medtronic v Lohr, 518 US 470, 485 (1996).
33. New Mexico v Mescalero Apache Tribe, 462 US 324, 334 (1983).
34. Laurence H. Tribe, American Constitutional Law 1174-75 (Foundation, 3d ed 2000).
35. Compare William N. Eskridge, Jr. and Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand L Rev 593 (1992).
36. See Cass R. Sunstein, Must Formalism Be Defended Empirically? 66 U Chi L Rev 636 (1999).
37. Maryland v Louisiana, 451 US 725, 746 (1981).
38. Rice v Santa Fe Elevator Corp., 331 US 218, 230 (1947).
39. Gregory v Ashcroft, 501 US 452, 460-61 (1991); Rice, 331 US at 230.
40. For commentators, see, e.g., Ken Starr et al., The Law of Preemption: A Report of the Appellate Judges Conference, American Bar Association 40-55 (ABA, 1991); Susan Raeker-Jordan, The Pre-Emption Presumption That Never Was: Pre-Emption Doctrine Swallows the Rule, 40 Ariz L Rev 1379 (1998); S. Candice Hoke, Preemption Pathologies and Civiv Republican Values, 71 BU L Rev 685, 760-61 (1991); Paul Wolfson, Preemption and Federalism: The Missing Link, 16 Hastings Const L Q 69, 111-14 (1988). For challenges to the presumption against preemption, see Caleb Nelson, Preemption, 86 Va L Rev 225 (2000); Viet D. Dinh, Reassessing the Law of Preemption, 88 Georgetown L J 2085 (2000).
41. For commentators, see, e.g., Ken Starr et al., The Law of Preemption: A Report of the Appellate Judges Conference, American Bar Association 40-55 (ABA, 1991); Susan Raeker-Jordan, The Pre-Emption Presumption That Never Was: Pre-Emption Doctrine Swallows the Rule, 40 Ariz L Rev 1379 (1998); S. Candice Hoke, Preemption Pathologies and Civiv Republican Values, 71 BU L Rev 685, 760-61 (1991); Paul Wolfson, Preemption and Federalism: The Missing Link, 16 Hastings Const L Q 69, 111-14 (1988). For challenges to the presumption against preemption, see Caleb Nelson, Preemption, 86 Va L Rev 225 (2000); Viet D. Dinh, Reassessing the Law of Preemption, 88 Georgetown L J 2085 (2000).
42. For commentators, see, e.g., Ken Starr et al., The Law of Preemption: A Report of the Appellate Judges Conference, American Bar Association 40-55 (ABA, 1991); Susan Raeker-Jordan, The Pre-Emption Presumption That Never Was: Pre-Emption Doctrine Swallows the Rule, 40 Ariz L Rev 1379 (1998); S. Candice Hoke, Preemption Pathologies and Civiv Republican Values, 71 BU L Rev 685, 760-61 (1991); Paul Wolfson, Preemption and Federalism: The Missing Link, 16 Hastings Const L Q 69, 111-14 (1988). For challenges to the presumption against preemption, see Caleb Nelson, Preemption, 86 Va L Rev 225 (2000); Viet D. Dinh, Reassessing the Law of Preemption, 88 Georgetown L J 2085 (2000).
43. For commentators, see, e.g., Ken Starr et al., The Law of Preemption: A Report of the Appellate Judges Conference, American Bar Association 40-55 (ABA, 1991); Susan Raeker-Jordan, The Pre-Emption Presumption That Never Was: Pre-Emption Doctrine Swallows the Rule, 40 Ariz L Rev 1379 (1998); S. Candice Hoke, Preemption Pathologies and Civiv Republican Values, 71 BU L Rev 685, 760-61 (1991); Paul Wolfson, Preemption and Federalism: The Missing Link, 16 Hastings Const L Q 69, 111-14 (1988). For challenges to the presumption against preemption, see Caleb Nelson, Preemption, 86 Va L Rev 225 (2000); Viet D. Dinh, Reassessing the Law of Preemption, 88 Georgetown L J 2085 (2000).
44. For commentators, see, e.g., Ken Starr et al., The Law of Preemption: A Report of the Appellate Judges Conference, American Bar Association 40-55 (ABA, 1991); Susan Raeker-Jordan, The Pre-Emption Presumption That Never Was: Pre-Emption Doctrine Swallows the Rule, 40 Ariz L Rev 1379 (1998); S. Candice Hoke, Preemption Pathologies and Civiv Republican Values, 71 BU L Rev 685, 760-61 (1991); Paul Wolfson, Preemption and Federalism: The Missing Link, 16 Hastings Const L Q 69, 111-14 (1988). For challenges to the presumption against preemption, see Caleb Nelson, Preemption, 86 Va L Rev 225 (2000); Viet D. Dinh, Reassessing the Law of Preemption, 88 Georgetown L J 2085 (2000).
45. For commentators, see, e.g., Ken Starr et al., The Law of Preemption: A Report of the Appellate Judges Conference, American Bar Association 40-55 (ABA, 1991); Susan Raeker-Jordan, The Pre-Emption Presumption That Never Was: Pre-Emption Doctrine Swallows the Rule, 40 Ariz L Rev 1379 (1998); S. Candice Hoke, Preemption Pathologies and Civiv Republican Values, 71 BU L Rev 685, 760-61 (1991); Paul Wolfson, Preemption and Federalism: The Missing Link, 16 Hastings Const L Q 69, 111-14 (1988). For challenges to the presumption against preemption, see Caleb Nelson, Preemption, 86 Va L Rev 225 (2000); Viet D. Dinh, Reassessing the Law of Preemption, 88 Georgetown L J 2085 (2000).
46. On the manifold difficulties with discerning congressional intent, see Frank H. Easterbrook, Statutes' Domain, 50 U Chi L Rev 533 (1983).
47. Compare Richard A. Posner, Statutory Interpretation - in the Classroom and in the Courtroom, 50 U Chi L Rev 800 (1983) (advocating "imaginative reconstruction").
48. I am not suggesting that such predictions are always impossible. For example, I believe that one can deduce from the various enforcement schemes in federal statutes that Congress generally legislates with domestic conditions - that is, conditions within the borders of the United States - in mind. See Jack L. Goldsmith, The New Formalism in United States Foreign Relations Law, 70 U Colo L Rev 1395, 1430-36 (1999). With respect to preemption, we have no such evidence of general congressional intent.
49. Jonathan R. Macey, Federal Deference to Local Regulators and the Economic Theory of Regulation: Toward a Public Choice Explanation of Federalism, 76 Va L Rev 265, 266 (1990).
50. This is Macey's thesis. See id.
51. See Nelson, 86 Va L Rev at 287-88 (cited in note 36).
52. See id at 288-89. Nelson provides additional reasons for giving no credence to the feedback effect argument. See id at 289-90.
53. This is the essence of the constitutional holding of Erie R.R. v Tompkins, 304 US 64 (1938), which follows from the vesting clauses, Art I, § 10, and the Tenth Amendment, among other provisions.
54. Dinh, 88 Georgetown L J at 2088 (cited in note 36).
55. See Nelson, 86 Va L Rev at 232 (cited in note 36).
56. See Geier v American Honda Motor Co., 529 US 861 (2000) (Stevens, dissenting).
57. Garcia v San Antonio Metro Transit Auth, 469 US 528 (1985).
58. Gregory, 501 US at 464 (quoting Laurence H. Tribe, American Constitutional Law 480 (Foundation, 2d ed 1988)).
59. Paul E. McGreal, Some Rice with Your Chevron? Presumption and Deference in Regulatory Preemption, 45 Case W Res L Rev 823, 840 (1995).
60. See Gregory, 501 US at 461; see also United States v Bass, 404 US 336, 349 (1971) ("In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.").
61. See United States v Morrison, 120 S Ct 1740 (2000); United States v Lopez, 514 US 549 (1995).
62. See, e.g., Starr et al., The Law of Preemption, at 47-50 (cited in note 36); Wolfson, Preemption and Federalism, 16 Hastings Const L Q at 111-14 (cited in note 36).
63. See, e.g., Starr et al., The Law of Preemption, at 47-50 (cited in note 36); Wolfson, Preemption and Federalism, 16 Hastings Const L Q at 111-14 (cited in note 36).
64. Compare Dinh, 88 Georgetown L J at 263-88 (cited in note 36).
65. See William N. Eskridge, Jr., Dynamic Statutory Interpretation, 101 Yale L J 331 (1991). This point holds for erroneous federal preemptions that harm the interests of all or most states; it has less force with respect to preemptions that adversely affect only one or a few states.
66. See Gregory, 501 US at 461.
67. See Stephen A. Gardbaum, The Nature of Preemption, 79 Cornell L Rev 767 (1994).
68. Compare Lawrence Lessig, Translating Federalism: United States v Lopez, 1995 Supreme Court Review 125 (1996).
69. See Michael Klarman, Antifidelity, 70 S Cal L Rev 381 (1997).
70. 312 US 52 (1941).
71. The Court pointedly declined to address the argument that "federal power in this field, whether exercised or unexercised, is exclusive." Id at 62.
72. Id at 67.
73. Id at 68.
74. Id at 67.
75. Natsios, 181 F3d at 97, affd, Crosby, 120 S Ct 2298. See also Maryland, 451 US at 746 (citing Hines for proposition that an "Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject."); Boyle v United Technologies, 487 US 500, 508 (1988) ("fact that the area in question is one of unique federal concern changes what would otherwise be a conflict that cannot produce preemption into one that can.").
76. See Frederick W. Marks III, Independence on Trial: Foreign Affairs and the Making of the Constitution (LSU, 1973); Bradford Perkins, The Cambridge History of American Foreign Relations: The Creation of a Republican Empire, 1776-1865, at 54-80 (1993).
77. See Frederick W. Marks III, Independence on Trial: Foreign Affairs and the Making of the Constitution (LSU, 1973); Bradford Perkins, The Cambridge History of American Foreign Relations: The Creation of a Republican Empire, 1776-1865, at 54-80 (1993).
78. See Goldsmith, 83 Va L Rev at 1655-59 (cited in note 3).
79. See, e.g., Jack N. Rakove, Solving a Constitutional Puzzle: The Treatymaking Clause as a Case Study, 1 Persp in Am Hist 233, 236-50 (1984).
80. See US Const, Preamble; Alexander Hamilton, The Federalist Papers 1; see generally Curtis A. Bradley and Jack L. Goldsmith, The Abiding Relevance of Federalism to U.S. Foreign Relations, 92 Am J Intl L 675 (1998).
81. See US Const, Preamble; Alexander Hamilton, The Federalist Papers 1; see generally Curtis A. Bradley and Jack L. Goldsmith, The Abiding Relevance of Federalism to U.S. Foreign Relations, 92 Am J Intl L 675 (1998).
82. For overviews, see David L. Shapiro, Federalism: A Dialogue 36 (Northwestern, 1995); Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U Chi L Rev 1484 (1987).
83. For overviews, see David L. Shapiro, Federalism: A Dialogue 36 (Northwestern, 1995); Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U Chi L Rev 1484 (1987).
84. This is what happened, for example, with the dozens of state and local divestment laws with respect to South Africa in the 1980s, which resulted in pressure on the national government to do the same. See Michael Shuman, Dateline Main Street: Courts v Local Foreign Policies, 86 Foreign Policy 158, 160 (1992).
85. For example, states have been aggressive in international economic affairs in areas where the federal government has either been unwilling or unable to provide adequate local assistance. See Earl H. Fry, The U.S. States and Foreign Economic Policy: Federalism in the "New World Order," in Brian Hocking, ed, Foreign Relations and Federal States 124 (Leicester Press, 1993); John M. Kline, State and Local Boundary Spanning Strategies in the United States: Political, Economic, and Cultural Transgovernmental Interactions, cited in Jong S. Jun and Deil Spencer Wright, eds, Globalization and Decentralization: Institutional Contexts, Policy Issues, and Intergovernmental Relations in Japan and the United States, 329-37 (Georgetown, 1996).
86. For example, states have been aggressive in international economic affairs in areas where the federal government has either been unwilling or unable to provide adequate local assistance. See Earl H. Fry, The U.S. States and Foreign Economic Policy: Federalism in the "New World Order," in Brian Hocking, ed, Foreign Relations and Federal States 124 (Leicester Press, 1993); John M. Kline, State and Local Boundary Spanning Strategies in the United States: Political, Economic, and Cultural Transgovernmental Interactions, cited in Jong S. Jun and Deil Spencer Wright, eds, Globalization and Decentralization: Institutional Contexts, Policy Issues, and Intergovernmental Relations in Japan and the United States, 329-37 (Georgetown, 1996).
87. State and local governments often tailor their spending to comport with local conceptions of morality in numerous contexts beyond international human rights at issue in Crosby. For example, some state and local governments refuse to buy wood from rain forests, see, e.g., Ariz Rev Stat Ann § 34-201 (I) (West 1998); Tenn Code Ann § 4-3-1112 (1998), establish purchasing preferences for goods made from recycled content, see, e.g., NYC Admin Code § 6-122 (Law Co-Op 1999), and bar the purchase of products made in sweatshops, see, e.g., North Olmstead, Ohio, Resolution § 97-9 (1998).
88. Curtis A. Bradley, A New American Foreign Affairs Law? 70 U Colo L Rev 1089, 1099 (1999); compare Lisa L. Martin, Democratic Commitments: Legislatures and International Cooperation (Princeton, 2000) (domestic democratic processes enhance international credibility).
89. Curtis A. Bradley, A New American Foreign Affairs Law? 70 U Colo L Rev 1089, 1099 (1999); compare Lisa L. Martin, Democratic Commitments: Legislatures and International Cooperation (Princeton, 2000) (domestic democratic processes enhance international credibility).
90. This includes the President's broad "emergency" powers to preempt under IEEPA, see 50 USC § 1702, his power to preempt pursuant to executive agreements, see United States v Belmont, 301 US 324 (1937), and his residual inherent Executive power, see Dames & Moore v Regan, 453 US 654, 673-74 (1981). For elaboration of this point, see Goldsmith (cited in note 3) at 1681-86.
91. See the 1994 General Agreement on Tariffs and Trade (GATT), codified at 19 USC § 3512 (1994); North American Free Trade Agreement (NAFTA), codified at 19 USC § 3312 (2000).
92. 28 USC 1608 (2000).
93. See Curtis A. Bradley and Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 Penn L Rev 399, 416-23 (2000).
94. For example, the Senate modified or denied consent to numerous treaties, both before and after the Seventeenth Amendment, on the ground that the treaties interfered with local state prerogatives. See Bradley, 97 Mich L Rev at 419-22 (cited in note 5). For other examples in this vein, see Goldsmith (cited in note 3).
95. Peter J. Spiro, Foreign Relations Federalism, 70 U Colo L Rev 1223, 1253 (1999).
96. See Ernest A. Young, "Dual Federalism," Concurrent Jurisdiction, and the Foreign Affairs Exception, 69 GW L Rev (forthcoming).
97. United States v Curtiss-Wright Export Corp., 299 US 304, 316-18 (1936).
98. See, e.g., United States v Pink, 315 US 203, 233 (1942) ("Power over external affairs is not shared by the States; it is vested in the national government exclusively."); Belmont, 301 US at 331 ("In respect of our foreign relations generally, state lines disappear. As to such purposes the State . . . does not exist."); The Chinese Exclusion Case, 130 US 581, 606 (1889) ("For local interests the several States of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power.").
99. See, e.g., Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U Pa L Rev 1245, 1296-99 (1996); John Norton Moore, Federalism and Foreign Relations, 1965 Duke L J 248, 275-76.
100. See, e.g., Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U Pa L Rev 1245, 1296-99 (1996); John Norton Moore, Federalism and Foreign Relations, 1965 Duke L J 248, 275-76.
101. See Banco Nacional de Cuba v Sabbatino, 376 US 398 (1964); Zschernig v Miller, 389 US 429 (1968).
102. See G. Edward White, The Transformation of the Constitutional Regime of Foreign Relations, 85 Va L Rev 1 (1999); Joel R. Paul, The Geopolitical Constitution: Executive Expediency and Executive Agreements, 86 Cal L Rev 671 (1998).
103. See G. Edward White, The Transformation of the Constitutional Regime of Foreign Relations, 85 Va L Rev 1 (1999); Joel R. Paul, The Geopolitical Constitution: Executive Expediency and Executive Agreements, 86 Cal L Rev 671 (1998).
104. See sources cited in note 86. The leading cases were Curtiss-Wright Export Corp., 299 US 304; Missouri v Holland, 252 US 416 (1920); Pink, 315 US at 229; and Belmont, 301 US 324.
105. Allen-Bradley Local v Board, 315 US 740, 749 (1942) (internal citations eliminated). See also Hillsborough County v Automated Medical Laboratorie, Inc., 471 US 707, 719 (1985): [In Hines] the Court inferred an intent to pre-empt from the dominance of the federal interest in foreign affairs because "the supremacy of the national power in the general field of foreign affairs . . . is made clear by the Constitution," and the regulation of that field is "intimately blended and intertwined with responsibilities of the national government." Needless to say, those factors are absent here. Rather, as we have stated, the regulation of health and safety matters is primarily, and historically, a matter of local concern.
106. See text at note 2 above.
107. 181 F3d at 74.
108. These points about the consequences of globalization for the distinction between domestic and foreign affairs are standard in the literature. For elaborations, see Goldsmith, 83 Va L Rev 1617 (cited in note 3); Spiro, 70 U Colo L Rev 1223 (cited in note 80).
109. These points about the consequences of globalization for the distinction between domestic and foreign affairs are standard in the literature. For elaborations, see Goldsmith, 83 Va L Rev 1617 (cited in note 3); Spiro, 70 U Colo L Rev 1223 (cited in note 80).
110. See Breard, 523 US 371.
111. See, e.g., Clifford J. Levy, Giuliani May Again Trim Diplomatic Parking, New York Times (April 20, 1997).
112. Barclays Bank PLC v Franchise Tax Bd, 512 US 298 (1994).
113. These clashes are not new. Numerous intractable foreign relations disputes in U.S. history have resulted from the application of state law. But they are more pervasive, and their resolution is more intractable.
114. See White, 85 Va L Rev 1 (cited in note 86).
115. Compare Louis Henkin, Foreign Affairs and the United States Constitution 150 (Oxford, 2d ed 1996).
116. As Justice Breyer noted in a different context: Courts cannot easily draw the proper basic lines of authority. The proper local/ national/international balance is often highly context specific. And judicial rules that would allocate power are often far too broad. Legislatures, however, can write laws that more specifically embody that balance. Specific regulatory schemes, for example, can draw lines that leave certain local authority untouched . . . . That is why the modern substantive federalist problem demands a flexible, context specific legislative response. College Savings Bank v Florida Prepaid Postsecondary Education Expense Board, 119 S Ct 2219, 2239 (1999) (Breyer, J, dissenting).
117. The best example is De Canas v Bica, 424 US 351 (1976) (applying presumption against preemption, and invoking state police powers, in concluding that California law prohibiting employer from employing illegal alien not preempted by federal immigration laws).
118. For a summary and empathetic analysis of this trend, see Ashutosh Bhagwat, Purpose Scrutiny in Constitutional Analysis, 85 Cal L Rev 297 (1997).
119. Compare Edward T. Swaine, Negotiating Federalism: State Bargaining and the Dormant Treaty Power, 49 Duke L J 1127, 1251 (2000) ("a purpose inquiry [for foreign affairs preemption] has the same problem as the effects approach: before considering how much state activity is too much, or what purposes are illegitimate, we must first establish more clearly the constitutional basis for the claim of interference").
120. See id at 1250-51.
121. See Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Harvard, 1999); Mark R. Tushnet, Taking the Constitution Away from the Courts (Princeton, 1999); James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law (Little, Brown, 1893).
122. See Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Harvard, 1999); Mark R. Tushnet, Taking the Constitution Away from the Courts (Princeton, 1999); James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law (Little, Brown, 1893).
123. See Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Harvard, 1999); Mark R. Tushnet, Taking the Constitution Away from the Courts (Princeton, 1999); James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law (Little, Brown, 1893).
124. Dinh, 88 Georgetown L J at 2098 (cited in note 36). The vertical axis in the chart resembles, but is not identical to, Dinh's more general analysis of preemption doctrines.
125. See Zschernig, 389 US at 436.
126. Id at 440, 441.
127. See Goldsmith, 83 Va L Rev 1617 (cited in note 3).
128. See Japan Line Ltd v County of Los Angeles, 441 US 434, 451 (1979).
129. See Peter J. Spiro, The States and Immigration in an Era of Demi-Sovereignties, 35 Va J Intl L 121, 164 (1994).
130. Compare Japan Line, 441 US at 450-54 (invalidating state tax that poses "acute" risk of offense to foreign nation) with Container Corp. of America v Franchise Tax Bd, 463 US 159, 194-95 (1983) (enforcing state law where offense to foreign nation is "attenuated at best").
131. See Henkin, Foreign Affairs and the United States Constitution 139-40 (cited in note 97) (Sabbatino recognizes a "legislative" power in federal courts).
132. See id.
133. Congress's power to revise dormant foreign affairs preemption decisions flows from the justification for the doctrine, namely, protection of political branch prerogatives. As in the dormant commerce context, it would make no sense to limit a power of the federal political branches in the name of protecting that power. See Henkin, Foreign Affairs and the United States Constitution at 164-65 (cited in note 97); Martin H. Redish, Federal Jurisdic- tion: Tensions in the Allocation of Judicial Power 137-38 (Michie, 2d ed 1990).
134. Congress's power to revise dormant foreign affairs preemption decisions flows from the justification for the doctrine, namely, protection of political branch prerogatives. As in the dormant commerce context, it would make no sense to limit a power of the federal political branches in the name of protecting that power. See Henkin, Foreign Affairs and the United States Constitution at 164-65 (cited in note 97); Martin H. Redish, Federal Jurisdic-tion: Tensions in the Allocation of Judicial Power 137-38 (Michie, 2d ed 1990).
135. The federal common law of foreign relations is placed somewhat lower than the other two in recognition of the fact that courts sometimes ostensibly point to enacted law in exercising this power. To the extent courts do this, their analysis becomes more like field or obstacle preemption. Since this form of "delegated" federal common law of foreign relations has not been the subject of academic focus, I will limit my remarks to consideration of "pure" federal common law of foreign relations.
136. See Freightliner Corp. v Myrick, 514 US 280, 287 (1995).
137. English v General Electric Co., 496 US 72, 79 (1990).
138. Rice v Santa Fe Elevator Corp., 331 US 218, 230 (1947).
139. English, 496 US at 79 n 5.
140. See id.
141. See, e.g., New York State Conference v Travelers, 514 US 645, 655-67 (1995); Medtronic, Inc. v Lohr, 518 US 470, 484 (1996); Frightliner Corp. v Myrick, 514 US 280, 289 (1995); Barnett Bank v Nelson, 517 US 25, 31 (1996).
142. As the Court has noted. See Geier v American Honda Motor Co., 529 US 861 (2000).
143. Compare Karen A. Jordan, The Shifting Preemption Paradigm: Conceptual and Interpretive Issues, 51 Vand L Rev 1149, 1178 (1998).
144. Viet Dinh puts the point this way: Obstacle preemption stands at the midway point between conflict and field preemption. Like conflict preemption, it displaces only those state laws that are inconsistent with federal law. Like field preemption, the relevant law is not a specific provision or even a statute, but rather some broad regulatory scheme or independent interests external to the supremacy clause conflict analysis. Dinh, 88 Georgetown L J at 2105 (cited in note 56).
145. See, e.g., Jordan, 51 Vand L Rev 1149 (cited in note 122); Dinh, 88 Georgetown L J 2086 (cited in note 36); Nelson, 86 Va L Rev 225 (cited in note 36).
146. See, e.g., Jordan, 51 Vand L Rev 1149 (cited in note 122); Dinh, 88 Georgetown L J 2086 (cited in note 36); Nelson, 86 Va L Rev 225 (cited in note 36).
147. See, e.g., Jordan, 51 Vand L Rev 1149 (cited in note 122); Dinh, 88 Georgetown L J 2086 (cited in note 36); Nelson, 86 Va L Rev 225 (cited in note 36).
148. See Swaine, Crosby as Foreign Relations Law (cited in note 14).
149. Some believe that the states retained powers of "external sovereignty" in the postrevolutionary period, and that the United States acquired these powers via the Articles and the Constitution rather than directly from Great Britain. See, e.g., David M. Levitan, The Foreign Relations Power: An Analysis of Mr. Justice Sutherland's Theory, 55 Yale L J 467, 478-90 (1946). Others believe, with Justice Sutherland, that the states never possessed foreign relations powers. See, e.g., Richard B. Morris, The Forging of the Union Reconsidered: A Historical Refutation of State Sovereignty Over Seabeds, 74 Colum L Rev 1056, 1088-89 (1974). The truth is probably that the issue was contested during the period 1776-89. See Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Politics of the British Empire and the United States, 1607-1788, at 153-80 (University of Georgia, 1986).
150. Some believe that the states retained powers of "external sovereignty" in the postrevolutionary period, and that the United States acquired these powers via the Articles and the Constitution rather than directly from Great Britain. See, e.g., David M. Levitan, The Foreign Relations Power: An Analysis of Mr. Justice Sutherland's Theory, 55 Yale L J 467, 478- 90 (1946). Others believe, with Justice Sutherland, that the states never possessed foreign relations powers. See, e.g., Richard B. Morris, The Forging of the Union Reconsidered: A Historical Refutation of State Sovereignty Over Seabeds, 74 Colum L Rev 1056, 1088-89 (1974). The truth is probably that the issue was contested during the period 1776-89. See Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Politics of the British Empire and the United States, 1607-1788, at 153-80 (University of Georgia, 1986).
151. Some believe that the states retained powers of "external sovereignty" in the postrevolutionary period, and that the United States acquired these powers via the Articles and the Constitution rather than directly from Great Britain. See, e.g., David M. Levitan, The Foreign Relations Power: An Analysis of Mr. Justice Sutherland's Theory, 55 Yale L J 467, 478- 90 (1946). Others believe, with Justice Sutherland, that the states never possessed foreign relations powers. See, e.g., Richard B. Morris, The Forging of the Union Reconsidered: A Historical Refutation of State Sovereignty Over Seabeds, 74 Colum L Rev 1056, 1088-89 (1974). The truth is probably that the issue was contested during the period 1776-89. See Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Politics of the British Empire and the United States, 1607-1788, at 153-80 (University of Georgia, 1986).
152. See Dennis James Palumbo, The States and American Foreign Relations 147-92 (1960) (unpublished Ph.D. dissertation); Goldsmith, 83 Va L Rev at 1643-58 (cited in note 3).
153. See Dennis James Palumbo, The States and American Foreign Relations 147-92 (1960) (unpublished Ph.D. dissertation); Goldsmith, 83 Va L Rev at 1643-58 (cited in note 3).
154. See Henkin, Foreign Affairs and the Constitution 239 (cited in note 97).
155. Sabbatino, 376 US 398; Zschernig, 389 US 429.
156. See, e.g., Container Corp. of America v Franchise Tax Bd, 463 US 159, 194 (1983) (Court lacks capacity to "determine precisely when foreign nations will be offended by particular acts" and "nuances" of "the foreign policy of the United States . . . are much more the province of the Executive Branch and Congress than of this Court"); Chicago & S Air Lines Inc. v Waterman SS Corp., 333 US 103, 111 (1948) (fine-grained foreign policy determinations are "of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry").
157. The Court has never again applied the dormant foreign relations preemption doctrine announced in Zschernig. Soon after Zschernig, the Court dismissed factually similar cases for lack of a substantial federal question, see Gorun v Fall, 393 US 398 (1969); Ioarmou v New York, 391 US 604 (1968) (per curiam), leading some to question the Court's continuing adherence to the doctrine. See Harold G. Maier, The Bases and Range of Federal Common Law in Private International Matters, 5 Vand J Transnatl L 133, 141-45 (1971).
158. The Court has never again applied the dormant foreign relations preemption doctrine announced in Zschernig. Soon after Zschernig, the Court dismissed factually similar cases for lack of a substantial federal question, see Gorun v Fall, 393 US 398 (1969); Ioarmou v New York, 391 US 604 (1968) (per curiam), leading some to question the Court's continuing adherence to the doctrine. See Harold G. Maier, The Bases and Range of Federal Common Law in Private International Matters, 5 Vand J Transnatl L 133, 141-45 (1971).
159. What follows is a very compressed form of arguments made at length in Goldsmith, 83 Va L Rev at 1664-98 (cited in note 3);
160. Goldsmith, 70 U Colo L Rev at 1410-24 (cited in note 39).
161. In contrast to the Supreme Court, lower courts have expanded the doctrine significantly to justify federalization of various contract, tort, and property disputes as well as procedural issues (such as choice of law, forum non conveniens, and the enforcement of foreign judgments). See Goldsmith (cited in note 3), at 1632-39. Even when there is no obviously foreign element in a case (such as a foreign citizen or nation), commentators have urged courts to use a dormant foreign affairs preemption rationale to preempt various state laws (such as the death penalty and prison practices) that conflict with customary international law. See id at 1639-41.
162. See Goldsmith, 83 Va L Rev 1617 (cited in note 3); Spiro, 70 U Colo L Rev 1223 (cited in note 80).
163. See Goldsmith, 83 Va L Rev 1617 (cited in note 3); Spiro, 70 U Colo L Rev 1223 (cited in note 80).
164. Compare Thayer, The Origin and Scope of the American Doctrine of Constitutional Law (cited in note 103).
165. See Container Corp. of America v Franchise Tax Board, 463 US 159 (1983).
166. 512 US 298 (1994)
167. Id at 320 (internal citations omitted).
168. Id at 328 (internal citations omitted).
169. Id at 331.
170. Id at 328-30.
171. Id at 327; see also id at 326 ("Congress implicitly has permitted the States to use the worldwide combined reporting method."); id at 331 (Blackmun, J, concurring) (stating that majority opinion relies on "congressional inaction to conclude 'that Congress implicitly has permitted the States to use the worldwide combined reporting method'").
172. See, e.g., Spiro, 70 U Colo L Rev 1223 (cited in note 80).
173. See Goldsmith, 70 U Colo L Rev 1395 (cited in note 39).
174. This was the approach in Sabbatino. 146 W.S. Kirkpatrick & Co. v Environmental Tectonics Corp., 493 US 400 (1990).
175. Japan Whaling Ass'n v American Cetacean Society, 478 US 221 (1986).
176. Hartford Fire Insurance Co. v California, 509 US 764 (1993); EEOC v Arabian Am Oil Co., 499 US 244 (1991).
177. See Cipollone v Liggett Group, 505 US 504, 547-48 (1992) (Scalia, J, concurring).
178. 424 US 351
179. Id at 358.
180. The president of the trade group that filed the lawsuit, for example, said the ruling would "help put an end to state and local efforts to make foreign policy." See USA*Engage Press Release, Supreme Court Rules Massachusetts Burma Law Unconstitutional, June 19, 2000.
181. One possible implication of the decision is that pending alien tort statute litigation by Burmese plaintiffs against Burmese officials, see, for example, Doe v Unocal, 110 F Supp 2d 1294 (CD Cal 2000), is impliedly repealed by the federal Burma sanctions. The reasons the Court gave for concluding that Congress intended the President alone to construct a unitary foreign policy against Burma cut against allowing private parties to bring human rights suits pursuant to the ATS.
182. 530 US at 362 n 8.
183. Id.
184. Id.
185. Contrary to what some have suggested, the Court also declined to embrace any such "foreign affairs" preemption presumption earlier in the term in United States v Locke, 529 US 89 (2000). Locke held that Washington state regulations concerning remedies for oil spills were preempted by the federal Port and Waterways Safety Act of 1972 (PWSA). In the course of its analysis, the Court stated: The state laws now in question bear upon national and international maritime commerce, and in this area there is no beginning assumption that concurrent regulation by the State is a valid exercise of its police powers. Rather, we must ask whether the local laws in question are consistent with the federal statutory structure, which has as one of its objectives a uniformity of regulation for maritime commerce. No artificial presumption aids us in determining the scope of appropriate local regulation under the PWSA . . . . Id at 108-09. This passage does not remotely embrace a presumption in favor of preemption for foreign relations statutes. First, the passage is concerned with maritime trade and navigation safety, a much narrower category than foreign affairs law. Second, the Court's conclusion is based not on its naked identification of federal interests, but rather on the fact that Congress had created an "extensive federal statutory and regulatory regime" that traces its provenance to the early nineteenth century. Id at 108. Third, the passage establishes that only (a) there is no presumption against preemption, and not that (b) there is a presumption in favor of preemption. These are not the same things.
186. Crosby, 530 US at 362 n 8.
187. Ernie Young claims that Crosby "departed from normal rules of preemption based on its view that the cases implicated foreign affairs." See Young (cited in note 81). By "normal rules," Young has in mind the presumption against preemption. He thinks the Crosby court "water[ed]-down" this presumption, and embraced a presumption a canon that favors preemption for "federal statutes that have a foreign affairs component." Id. Young's analysis rests on the mistaken premise that the presumption against preemption was the only relevant canon here. In fact, as explained in Section II, the Mines canon favoring preemption for foreign relations statutes has been around just as long as the presumption against preemption. Young's conclusion that the Court watered down the presumption against preemption thus begins from an inappropriate baseline. The Court was faced with conflicting canons and declined to rely on either.
188. Hines, 312 US at 401-03.
189. Crosby, 530 US at 362.
190. See id at 362-63 (referring to the "express investiture of the President with statutory authority to act for the United States in imposing sanctions with respect to the government of Burma, augmented by the flexibility to respond to change by suspending sanctions in the interest of national security"); id at 363 ("Within the sphere defined by Congress, then, the statute has placed the President in a position with as much discretion to exercise economic leverage against Burma, with an eye toward national security, as our law will admit"); id ("The President has been given this authority not merely to make a political statement but to achieve a political result, and the fullness of his authority shows the importance in the congressional mind of reaching that result. It is simply implausible that Congress would have gone to such lengths to empower the President if it had been willing to compromise his effectiveness by deference to every provision of state statute or local ordinance that might, if enforced, blunt the consequences of discretionary Presidential action."); id at 364 (state statute "undermines the President's intended statutory authority"); id ("the state Act reduces the value of the chips created by the federal statute").
191. Id at 364.
192. See id ("Congress's calibrated Burma policy is a deliberate effort 'to steer a middle path'").
193. Id at 366 (citing § 570(c)).
194. Id.
195. Id at 367.
196. Id.
197. See Breard, 523 US 371 (upholding state right to execute foreign national in face of vigorous foreign protest and International Court of Justice provisional order); Federal Republic of Germany v United States, 526 US 111 (1999) (same); Barclays Bank, 512 US at 324-29 (1994) (foreign government protests against California tax irrelevant to Foreign Dormant Commerce Clause analysis); Hartford Fire Insurance Co. v California, 509 US 764, 798-99 (1993) (declining to credit British protests or, more broadly, to consider comity considerations in applying Sherman Act extraterritorially); United States v Alvarez-Machain, 504 US 655, 667 (1992) (foreign government objections to legality of abducting foreign national irrelevant).
198. Crosby, 530 US at 369.
199. See id ("We have, after all, not only recognized the limits of our own capacity to determine precisely when foreign nations will be offended by particular acts, but consistently acknowledged that the nuances of the foreign policy of the United States . . . are much more the province of the Executive Branch and Congress than of this Court.") (internal quotations and citations deleted).
200. Ed Swaine has questioned whether the Court read Congress's intent accurately in this respect. See Swaine, Crosby as Foreign Relations Law (cited in note 14). The important point for present purposes, however, is that rightly or wrongly, the Court perceived the need to place responsibility for the relevance of foreign protests in Congress and not on its own authority.
201. See Crosby, 530 US at 362-64. On judicial deference to executive branch views in foreign relations, see Curtis A. Bradley, Chevron Deference and Foreign Affairs, 86 Va L Rev 649 (2000).
202. Crosby, 530 US at 369.
203. Id.
204. See Mark Tushnet, Globalization and Federalism in a Post-Printz World, 36 Tulsa L J 11, 19 (2000).
205. See Swaine, 41 Va J Intl L 481 (cited in note 14).
206. Compare Jon Elster, Alchemies of the Mind: Rationality and the Emotions (1999) (discussing the "civilizing force of hypocrisy").
207. See Tushnet (cited in note 176); Swaine, 49 Duke L J 1127 (cited in note 101).
208. See Tushnet (cited in note 176); Swaine, 49 Duke L J 1127 (cited in note 101).
209. The Court has never focused on this issue extensively, but in various cases throughout its history it has sent mixed signals in passing. Compare Guaranty Trust Co. v United States, 304 US 126, 143 (1938) ("[E]ven the language of a treaty wherever reasonably possible will be construed so as not to
210. See Goldsmith, 70 U Colo L Rev at 1413 (cited in note 39).
211. See Julian G. Ku, The Delegation of Federal Power to International Organizations: New Problems with Old Solutions, 85 Minn L Rev 71 (2000).