Foreign affairs federalism: A revisionist approach

Vanderbilt Law Review

Volumn 66, Issue 3, 2013, Pages 723-794

  Abebe, Daniel ^b   Huq, Aziz Z ^a  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

^b NONE

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[No Author keywords available]

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EID: 84877269376     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (266)

1. See Arizona v. United States, 132 S. Ct. 2492, 2497-98 (2012) (describing core provisions). SB 1070 created new, state-level, immigration-related crimes, such as working in the state without authorization and failing to carry an immigration document; allowed police to arrest people suspected of being removable from the United States; required police to investigate the immigration status of those lawfully stopped, detained, or arrested; and enabled immigration enforcement activities by public employees. Id.
2. See, e.g., Beason-Hammon Alabama Taxpayer and Citizen Protection Act, 2011 Ala. Adv. Legis. Serv. 535 (LexisNexis)
3. Illegal Immigration Reform and Enforcement Act of 2011, 2011 Ga. Code Ann. Adv. Legis. Serv. 252 (LexisNexis)
4. Illegal Immigration Enforcement Act, 2011 Utah Adv. Legis. Serv. 21 (LexisNexis) (codified in scattered sections of UTAH CODE ANN. tits. 76, 77)
5. as amended by Act of Mar. 15, 2011, 2011 Utah Adv. Legis. Serv. 18 (LexisNexis).
6. See, e.g., Gabriel J. Chin & Marc L. Miller, The Unconstitutionality of State Regulation of Immigration Through Criminal Law, 61 DUKE L.J. 251, 252 (2011) (arguing that state immigration prosecutions are "irremediably unconstitutional")
7. Gabriel J. Chin, Carissa Byrne Hessick, Toni Massaro & Marc L. Miller, A Legal Labyrinth: Issues Raised by Arizona Senate Bill 1070, 25
8. GEO. IMMIGR. L.J. 47, 77 (2010) (addressing concerns about state power to regulate immigration and preemption by federal law).
9. United States v. Arizona, 703 F. Supp. 2d 980, 986 (D. Ariz. 2010), aff'd, 641 F.3d 339 (9th Cir. 2011), aff'd in part, rev'd in part, 132 S. Ct. 2492 (2012).
10. In Chamber of Commerce v. Whiting, the Court upheld Arizona's alien employment law, which allowed the suspension and revocation of business licenses for employing unauthorized aliens and required every employer to verify the employment eligibility of hired employees through a specific Internet-based system. The Court emphasized the "high threshold [that] must be met if a state law is to be pre-empted for conflicting with the purposes of a federal Act." 131 S. Ct. 1968, 1985 (2011)
11. quoting Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 110 (1992) (Kennedy, J., concurring in part, concurring in the judgment).
12. Transcript of Oral Argument at 56, Arizona v. United States, 132 S. Ct. 2492 (2012) (No. 11-182), available at http://www.supremecourt.gov/oral- arguments/argument-transcripts/11-182.pdf. We say "even" because Justice Sotomayor is not one who would have been expected ex ante to disfavor the government's position in the case.
13. David A. Martin, Reading Arizona, 98 VA. L. REV. IN BRIEF 41, 45 (2012).
14. Arizona v. United States, 132 S. Ct. 2492, 2501-09 (2012) (invalidating criminal penalties on the nonpossession of immigration documents and applications for unauthorized work, and also the power of warrantless arrest, but upholding, with limitations, police power to require the production of immigration papers).
15. See, e.g., Edward Sifuentes, Three USD Professors Say Arizona Law Is Constitutional, N. COUNTY TIMES (May 13, 2010, 7:44 PM), http://www.nctimes.com/ news/local/sdcounty/article-9631a761-1a36-597b-8467-2173655b4465.html ("Professor Lawrence Alexander, who teaches constitutional law at USD, said that [the constitutional] argument would fail because the Arizona law does not conflict with federal immigration law.").
16. Arizona, 132 S. Ct. at 2498.
17. Id. (quoting Hines v. Davidowitz, 312 U.S. 52, 64 (1941)).
18. Some scholars point to "a structural change . . . that has begun to transform the global order of unitary nation-states into a system that empowers subfederal units such as the American states." CHRISTOPHER P. BANKS & JOHN C. BLAKEMAN, THE U.S. SUPREME COURT AND NEW FEDERALISM: FROM THE REHNQUIST TO THE ROBERTS COURT 190 (2012). This implies that foreign affairs federalism cases will continue to arise with some frequency before the Supreme Court.
19. See De Canas v. Bica, 424 U.S. 351, 356 (1976) (upholding California regulation of alien employment against preemption challenge)
20. Hines v. Davidowitz, 312 U.S. 52, 74 (1941) (invalidating Pennsylvania's 1939 Alien Registration Act)
21. Chy Lung v. Freeman, 92 U.S. 275, 279, 281 (1875) (invalidating California bonding requirement for certain international passengers).
22. See Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 388 (2000) (invalidating Massachusetts statute that imposed penalties on companies dealing with Burma)
23. Zschernig v. Miller, 389 U.S. 429, 436 (1968) (invalidating Oregon escheat law that imposed reciprocal requirements that disabled citizens of certain Communist Bloc countries from inheriting property).
24. The Court's opinion in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), can also be situated in this class.
25. See Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 415 (2003) (invalidating California insurance law related to unresolved Holocaust-related claims).
26. These cases involve preemption of state common law claims respecting contract or property interests. See United States v. Pink, 315 U.S. 203, 241-42 (1942) (affirming dismissal of a suit to recover the assets of a New York branch of a Russian insurance company)
27. United States v. Belmont, 301 U.S. 324, 332 (1937) (reversing dismissal of an action by the federal government to recover a sum of money deposited by a Russian corporation).
28. See Barclays Bank PLC v. Franchise Tax Bd., 512 U.S. 298, 331 (1994) (upholding California's worldwide reporting requirement for corporate income tax)
29. Japan Line, Ltd. v. Cnty. of L.A., 441 U.S. 434, 448 (1979) (invalidating application of ad valorem property tax on foreign shipping).
30. See Medellín v. Texas, 552 U.S. 491, 522-23 (2008) (holding that the President lacks authority to delay Texas executions based on an International Court of Justice judgment)
31. Sanchez-Llamas v. Oregon, 548 U.S. 331, 359-60 (2006) (finding that consular rights treaty did not oust state procedural bar rules).
32. See, e.g., Faculty Senate of Fla. Int'l Univ. v. Winn, 616 F.3d 1206, 1208 n. 2, 1210 (11th Cir. 2010) (per curiam) (rejecting challenge to state ban on use of university funds for travel to listed "terrorist state[s]")
33. Movsesian v. Victoria Versicherung AG, 629 F.3d 901, 903 (9th Cir. 2010), rev'g 578 F.3d 1052 (2009) (considering state law tort suit based on human rights violations against Armenians)
34. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 518-19 (M.D. Pa. 2007) (invalidating local immigration regulation).
35. Arizona v. United States, 132 S. Ct. 2492, 2498 (2012)
36. quoting Hines v. Davidowitz, 312 U.S. 52, 64 (1941). values. We also do not offer a precise qualitative welfarist analysis. Again in common with most public law analysis, our evaluation of different rules' welfare effects necessarily relies on some estimation on our part.
37. Arizona v. United States, 132 S. Ct. 2492, 2498 (2012)
38. quoting Hines v. Davidowitz, 312 U.S. 52, 64 (1941).
39. For a cogent and insightful development of this point in the immediate aftermath of the Arizona decision, see Eric Posner, The Imperial President of Arizona, SLATE (June 26, 2012), http://www.slate.com/articles/news-and-politics/ jurisprudence/2012/06/the-supreme-court-s-arizona-immigration-ruling-and-the- imperial-presidency-.html.
40. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543, 546 (1954) (noting that states play a "crucial role in the selection and the composition of the national authority").
41. For canonical statements of this principle, see LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 14-15, 149-69 (2d ed. 1996)
42. Harold Hongju Koh, Is International Law Really State Law?, 111 HARV. L. REV. 1824, 1846-52 (1998).
43. United States v. Pink, 315 U.S. 202, 233 (1942)
44. United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 (1936) (indicating that the President alone has the power to negotiate with foreign nations).
45. See generally Daniel Abebe, The Global Determinants of U.S. Foreign Affairs Law, 49 STAN. J. INT'L L. 1 (forthcoming 2013) (manuscript on file with authors).
46. Compare Curtis A. Bradley, The Treaty Power and American Federalism, 97 MICH. L. REV. 390, 394 (1998) (arguing that the federal government's "plenary authority" under the Treaty Power is inconsistent with American federalism)
47. David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 MICH. L. REV. 1075, 1080 (2000) (supporting the Treaty Power as consistent with federalism).
48. Compare Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815, 816 (1997) (no) (Pubitemid 127467195)
49. Carlos M. Vasquez, Customary International Law as U.S. Law: A Critique of the Revisionist and Intermediate Positions and a Defense of the Modern Position, 86 NOTRE DAME L. REV. 1495, 1501 (2011) (yes).
50. Timothy J. Conlan, Robert L. Dudley & Joel F. Clark, Taking On the World: The International Activities of American State Legislatures, 34 PUBLIUS 183, 184 (2004), available at http://publius.oxfordjournals.org/content/34/3/ 183.full.pdf ("[S]tate and local governments in the United States have become increasingly involved in international affairs.")
51. EARL H. FRY, THE EXPANDING ROLE OF STATE AND LOCAL GOVERNMENTS IN U.S. FOREIGN AFFAIRS 67-76 (1998) (discussing state and local economic and trade initiatives)
52. Faculty Senate of Fla. Int'l Univ. v. Winn, 616 F.3d 1206, 1210 (11th Cir. 2010).
53. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).
54. Timothy J. Conlan, Robert L. Dudley & Joel F. Clark, Taking On the World: The International Activities of American State Legislatures, 34 PUBLIUS 183, 184 (2004), available at http://publius.oxfordjournals.org/content/34/3/ 183.full.pdf ("[S]tate and local governments in the United States have become increasingly involved in international affairs.")
55. EARL H. FRY, THE EXPANDING ROLE OF STATE AND LOCAL GOVERNMENTS IN U.S. FOREIGN AFFAIRS 67-76 (1998) (discussing state and local economic and trade initiatives)
56. Faculty Senate of Fla. Int'l Univ. v. Winn, 616 F.3d 1206, 1210 (11th Cir. 2010).
57. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).
58. Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2111 (1990) (noting canon's reliance on "something external to legislative desires")
59. William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 597 (1992) (noting that clear statement rules protect constitutional values that otherwise would not be directly judicially enforced).
60. Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 316-17 (2000) (detailing the operation and advantages of canons that serve nondelegation principles).
61. See, e.g., Demore v. Kim, 538 U.S. 510, 517 (2003) (requiring a clear statement from Congress before eliminating jurisdiction to review an agency action).
62. See, e.g., NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500-01 (1979) (requiring a clear statement of statutory authority for an agency action that impinged on First Amendment interests).
63. See Gregory v. Ashcroft, 501 U.S. 452, 467-70 (1991) (using a clear statement rule to shield states' ability to determine the forms of their own government structures, a federalism value not directly enforced by the Court)
64. Solid Waste Agency v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 172 (2001) (requiring clear statement with respect to jurisdiction over navigable waters).
65. See Public Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 466 (1989) (construing the Federal Advisory Committee Act narrowly lest it "infring[e] unduly on the President's Article II power to nominate federal judges and violat[e] the doctrine of separation of powers").
66. For a general defense of a pro-presidential canon on institutional competence grounds, see Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign Relations Law, 116 YALE L.J. 1170, 1224 (2007).
67. For a claim in a classic article published in these pages to the effect that this is endemic to the operation of legal canons, see Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 VAND. L. REV. 395, 401 (1950) (contending that "there are two opposing canons on almost every point").
68. Hines v. Davidowitz, 312 U.S. 52, 59 (1941) (describing Pennsylvania law).
69. CAL. LABOR CODE § 2805(a), repealed by 1988 Cal. Stat., ch. 946, § 1 (stating, in relevant part, that "[n]o employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers").
70. See De Canas, 424 U.S. at 352-54 (rehearsing this argument).
71. Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1985 (2011)
72. quoting Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 110 (1992) (Kennedy, J., concurring).
73. See Arizona, 132 S. Ct. at 2498-99 (discussing the connection of immigration and foreign affairs concerns).
74. Exchange of Communications Between the President of the United States and Maxim M. Litvinov People's Commissar for Foreign Affairs of the Union of Soviet Socialist Republics (Nov. 16, 1933), reprinted in 28 AM. J. INT'L L. 2 (Supp. 1934).
75. E.g., United States v. Pink, 315 U.S. 203, 213 (1942).
76. See United States v. Belmont, 85 F.2d 542, 544 (2d Cir. 1936) (describing New York policy).
77. Zschernig v. Miller, 389 U.S. 429, 430-31 (1968) (describing Oregon law). The Court had previously upheld such state property rules against a facial challenge
78. See Clark v. Allen, 331 U.S. 503 (1947).
79. See Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997
80. enacted by the Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, § 570, 110 Stat. 3009 (1996).
81. Crosby, 530 U.S. at 369-70 (quotation omitted).
82. Agreement Concerning the Foundation "Remembrance, Responsibility and the Future," U.S.-Ger., July 17, 2000, 39 I.L.M. 1298.
83. Garamendi, 539 U.S. at 413-14.
84. U.S. CONST. art. I, § 8, cl. 3. For a useful survey of the doctrine, see Anthony J. Colangelo, The Foreign Commerce Clause, 96 VA. L. REV. 949, 966 (2010).
85. Japan Line, Ltd. v. Cnty. of L.A., 441 U.S. 434 (1979) (invalidating application of ad valorem property tax on foreign shipping).
86. Id. at 453-54. For an early, nonfatal application of the "one voice" test, see Wardair Canada, Inc. v. Fla. Dep't of Revenue, 477 U.S. 1, 9-13 (1986) (finding no uniform federal policy).
87. Barclays Bank PLC v. Franchise Tax Bd., 512 U.S. 298, 331 (1994).
88. So much is also evident from pre-Medellín cases that declined either to regulate directly state court criminal procedure or to oust procedural bars in habeas litigation pursuant to the Vienna Convention on Consular Relations ("VCCR"). Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006)
89. accord Breard v. Greene, 523 U.S. 371 (1998).
90. Medellín, 552 U.S. at 498.
91. Id. at 504-13 (searching for congressional intent of self-execution respecting the Convention and effectively imposing a default rule of nonexecution); accord Sanchez-Llamas, 548 U.S. at 347 ("[W]here a treaty does not provide a particular remedy, either expressly or implicitly, it is not for the federal courts to impose one on the States through lawmaking of their own.").
92. Medellín, 552 U.S. at 524-32 (analyzing Youngstown question).
93. Id. (citing Brecht v. Abrahamson, 507 U.S. 619, 635 (1993)).
94. Medellín is not the only case in this area of law. See also Sanchez-Llamas, 548 U.S. at 331
95. accord Breard v. Greene, 523 U.S. 371 (1998).
96. M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 VA. L. REV. 1127, 1138 (2000). The functionalist/formalist divide is familiar from debates on the separation of powers, and we adapt it mutatis mutandi for use here because it provides a useful set of labels for organizing the existing literature.
97. Thomas W. Merrill, The Constitutional Principle of Separation of Powers, 1991 SUP. CT. REV. 225, 231.
98. Theories of constitutional interpretation differ on what the source of authority is for a judge's action-the historical fact of ratification or contemporary acceptance of the Constitution. See Adam M. Samaha, Dead Hand Arguments and Constitutional Interpretation, 108 COLUM. L. REV. 606, 627-40 (2008) (discussing problems of constitutional authority). Theories also differ as to how much discretion judges should possess.
99. See J. HARVIE WILKINSON, III, COSMIC CONSTITUTIONAL THEORY 11-103 (2012) (describing and critiquing several leading theories of constitutional interpretation on the ground that they endow judges with too much authority). These two questions-on whose authority, and by which institution?-can usefully be understood as organizing (if implicitly) questions in ongoing debates on constitutional hermeneutics.
100. Arizona v. United States, 132 S. Ct. 2492, 2511-22 (2012) (Scalia, J., dissenting).
101. Ramsey, supra note 27, at 346; accord MICHAEL D. RAMSEY, THE CONSTITUTION'S TEXT IN FOREIGN AFFAIRS 264-82 (2007) (setting forth the basic structural and historical argument); id. at 288-99 (extending that argument to claims of executive preemption).
102. Compare PHILLIP R. TRIMBLE, INTERNATIONAL LAW: UNITED STATES FOREIGN RELATIONS LAW 10-46 (2002) (advocating broad view of presidential authority)
103. Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 MICH. L. REV. 545, 551-52 (2004) (arguing against a broad view on textualist and historical grounds)
104. Michael P. Van Alstine, Executive Aggrandizement in Foreign Affairs Lawmaking, 54 UCLA L. REV. 309 (2006) (examining the executive's constitutional authority in formal foreign affairs and his ability to compel compliance).
105. See Henry Paul Monaghan, Supremacy Clause Textualism, 110 COLUM. L. REV. 731, 781 (2010) ("[A]ll forms of originalism seem . . . to assume much greater clarity about the original understanding than in fact existed.").
106. See Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231, 234 (2001) (arguing that "the Constitution establishes a presumption that the President will enjoy those foreign affairs powers that were traditionally part of the executive power"); cf. id. at 255 n.97 (bracketing federalism concerns).
107. Morrison v. Olsen, 487 U.S. 654, 689-90 & n.28 (1988).
108. Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321, 1330 (2001) (arguing that "the Supremacy Clause recognizes only the 'Constitution,' 'Laws,' and 'Treaties' of the United States as 'the supreme Law of the Land' ")
109. RAMSEY, supra note 109, at 285-86; accord Bradford R. Clark, Constitutional Compromise and the Supremacy Clause, 83 NOTRE DAME L. REV. 1421, 1424-25 (2008) (arguing federalism is designed to give political minorities power to prevent constitutional changes).
110. Clark, supra note 27, at 1575-76; accord Michael D. Ramsey, Executive Agreements and the (Non)Treaty Power, 77 N.C. L. REV. 133, 240 (1998).
111. In particular, we find Professor Monaghan's elegant brief against Supremacy Clause textualism to be devastating. Id. at 756-81.
112. See Aziz Z. Huq, Enforcing (but not Defending) 'Unconstitutional' Laws, 98 VA. L. REV. 1001 (2012) (analyzing enforcement-litigation gaps in terms of their effect on constitutional values).
113. Id.; see also Aziz Z. Huq, When Was Judicial Restraint?, 100 CALIF. L. REV. 579 (2012) (charting and explaining historical development of judicial review in terms of changing national political forces). To be clear, we do not deny that the relevant institutional equilibrium is general and not specific to particular cases. The Court thus often has considerable retail discretion, and we also do not deny that the scope of this retail discretion is a function of how capable of responding the political branches are, which might change over time.
114. Cf. Gillian Metzger, The Constitutional Legitimacy of Freestanding Federalism, 122 HARV. L. REV. F. 98, 105 (2009) (arguing against the rejection of nontextual sources of constitutional meaning on the ground that "the costs associated with [the resulting] disruption to settled practice and precedent outweigh the asserted benefits of respecting constitutional processes and compromise").
115. See, e.g., United States v. Jones, 132 S. Ct. 945 (2012) (holding that police attachment of a GPS tracker to a vehicle's undercarriage was a search for Fourth Amendment purposes).
116. See, e.g., Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 861-82 (1989) (discussing, and rejecting, the constitutionality of flogging as used at the time of the Founding on Eighth Amendment grounds).
117. Goldsmith, Federal Courts, supra note 29, at 1663; accord Schaefer, supra note 27, at 220-21 (asserting that a dormant foreign affairs doctrine makes sense in a post-Cold War environment).
118. For a general account of relevant institutional trends, see Aziz Z. Huq, Imperial March, DEMOCRACY, Winter 2008, at 44, 46-53 (summarizing historical trends).
119. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM 7 (2010).
120. See Roderick Hills, The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 MICH. L. REV. 813, 815 (1998) (describing the demise of dual-sovereignty theories).
121. See Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395, 403 (1995) ("[I]n at least some cases, a changed reading could be consistent with fidelity. For some changed readings simply accommodate changes in context, by aiming to find a reading in the new context that has the same meaning as a different reading had in a different context.").
122. See PETER ONUF & NICHOLAS ONUF, FEDERAL UNION, MODERN WORLD: THE LAW OF NATIONS IN AN AGE OF REVOLUTIONS, 1776-1814, at 95 (1993) ("The move toward federal union followed from the failure of confederal arrangements to guarantee harmony among the states and Congress's resulting inability to conduct foreign policy.").
123. See, e.g., Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725, 1727 (1996) (noting the Framers' focus on Congress as the most dangerous branch, but then observing that "[n]ever has the executive branch been more powerful, nor more dominant over its two counterparts, than since the New Deal").
124. For a useful account of how congressional oversight has foundered in respect to intelligence issues, see AMY B. ZEGART, EYES ON SPIES: CONGRESS AND THE UNITED STATES INTELLIGENCE COMMUNITY 55-84 (2011).
125. ERIC A. POSNER & ADRIAN VERMEULE, THE EXECUTIVE UNBOUND: AFTER THE MADISONIAN REPUBLIC 8-12 (2010).
126. See, e.g., Julian Ku & John Yoo, Hamdan v. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch, 23 CONST. COMMENT. 179, 200 (2006) (arguing that the executive branch's ability to act on new information absent a new case makes that branch better suited to foreign affairs powers)
127. Julian Ku & John Yoo, Beyond Formalism in Foreign Affairs: A Functional Approach to the Alien Tort Statute, 2004 SUP. CT. REV. 153, 154-55 (engaging in a "functionalist" approach by relying on institutional competence arguments)
128. Eric A. Posner & Adrian Vermeule, The Credible Executive, 74 U. CHI. L. REV. 865, 865 (2007) ("In emergencies, and in the areas of foreign policy and national security, even more discretion flows to the executive because its institutional advantages in speed, decisiveness, force, and secrecy become pronounced, and because power must be concentrated to meet threats.").
129. Many functionalist arguments are little more than a recitation of the claim that the executive always knows best. For a skeptical view of that claim, see Aziz Z. Huq, Structural Constitutionalism as Counterterrorism, 100 CALIF. L. REV. 887, 904-18 (2012).
130. A third functionalist inquiry, offered by Professor Schaefer, "would ask if the primary purpose of the state law is to change or criticize the policy of a foreign government or governments." Schaefer, supra note 27, at 248-49. Absent some reason to think that legislative motivations have an independent normative salience-as they arguably do in discrimination law and the First Amendment-it is hard to discern a reason for organizing the jurisprudence around so empirically slippery and analytically discredited a concept as legislative purpose. Cf. Kenneth A. Shepsle, Congress Is a 'They,' Not an 'It': Legislative Intent as Oxymoron, 12 INT'L. REV. L. & ECON. 239 (1992) (arguing that because Congress is comprised of many individuals with diverse motivations, legislation rarely has a singular joint goal).
131. Goldsmith, Statutory Foreign Affairs Preemption, supra note 29, at 177.
132. Cf. Goldsmith, Federal Courts, supra note 29, at 1668 (denying judicial competence in foreign affairs matters); id. at 1680-98 ("There is little reason to think that state control over matters not governed by enacted federal law affects U.S. foreign relations in a way that warrants preemption . . . . The political branches are quite capable of identifying and responding to any adverse consequences of [state] behavior.").
133. Goldsmith, Statutory Foreign Affairs Preemption, supra note 29, at 210 (claiming that it is difficult for "courts to identify and weigh genuine U.S. foreign relations interests and to balance the trade-offs of those interests against the benefits of state control").
134. Cf. Goldsmith, Federal Courts, supra note 29, at 1668 (denying judicial competence in foreign affairs matters); id. at 1680-98 ("There is little reason to think that state control over matters not governed by enacted federal law affects U.S. foreign relations in a way that warrants preemption . . . . The political branches are quite capable of identifying and responding to any adverse consequences of [state] behavior.").
135. Goldsmith, Statutory Foreign Affairs Preemption, supra note 29, at 210 (claiming that it is difficult for "courts to identify and weigh genuine U.S. foreign relations interests and to balance the trade-offs of those interests against the benefits of state control").
136. Matthew C. Stephenson, The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs, 118 YALE L.J. 2 (2008) (describing how clear statement rules enforce constitutional values by increasing the enactment costs of particular types of legislation)
137. Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 TEX. L. REV. 1549, 1585 (2000) (proposing "the concept of 'resistance norms'-that is, constitutional rules that raise obstacles to particular governmental actions without barring those actions entirely"). On the second point, Goldsmith seems to assume a sharp divide between state and federal regulatory domains. Goldsmith, Statutory Foreign Affairs Preemption, supra note 29, at 184 ("State sovereignty ends precisely at the point to which federal power, properly exercised, extends."). His own analysis of the overlap between state and federal regulation interests, however, amply demonstrates that this picture is somewhat misleading. In the domains in which state and federal regulatory interests overlap, moreover, it is hardly nonsensical to suggest that a "resistance norm" (to use Young's phrase) be employed to ensure Congress does not incidentally or unintentionally trench on state regulatory interests. Finally, Goldsmith's reliance on Commerce Clause jurisprudence is a non sequitur. Just because the Court is willing to enforce directly a policy value through one mechanism in one domain does not mean it should not enforce the same value through a different mechanism in a different statutory domain. The Court's Commerce Clause jurisprudence only sporadically touches on most federal regulation.
138. Gillian E. Metzger, Administrative Law as the New Federalism, 57 DUKE L.J. 2023, 2048 (2008) (emphasizing "the Court's unwillingness to curb congressional regulatory authority on constitutional federalism grounds"). And as Justice Breyer acutely noted, "the practical importance of preserving local independence, at retail . . . by applying preemption doctrine with care" is wholly distinct, different, and arguably more consequential than "the occasional constitutional effort to trim Congress' commerce clause power at the edges."
139. Egelhoff v. Egelhoff, 532 U.S. 141, 160 (2001) (Breyer, J., dissenting).
140. Goldsmith, Statutory Foreign Affairs Preemption, supra note 29, at 177.
141. Goldsmith, Statutory Foreign Affairs Preemption, supra note 29, at 177.
142. Caleb Nelson, Preemption, 86 VA. L. REV. 225, 232 (2000).
143. Nelson's view is widely shared; for various reiterations over the past decades, see Viet D. Dinh, Reassessing the Law of Preemption, 88 GEO. L.J. 2085, 2085-86 (2000)
144. Catherine M. Sharkey, Inside Agency Preemption, 110 MICH. L. REV. 521, 524 (2012) (voicing a similar concern about the coherence of preemption doctrine)
145. Ernest A. Young, "The Ordinary Diet of the Law": The Presumption Against Preemption in the Roberts Court, 2011 SUP. CT. REV. 253, 256 (same).
146. Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1985 (2011).
147. See Arizona v. United States, 132 S. Ct. 2492, 2501-09 (2012) (holding three of four challenged sections of Arizona's Support Our Law Enforcement Act were preempted).
148. Compare Altria Grp., Inc. v. Good, 555 U.S. 70 (2008) (applying such a presumption)
149. Riegel v. Medtronic, Inc., 552 U.S. 312 (2008) (refusing to do so).
150. Goldsmith, Statutory Foreign Affairs Preemption, supra note 29, at 213.
151. Ernest A. Young, Dual Federalism, Concurrent Jurisdiction, and the Foreign Affairs Exception, 69 GEO. WASH. L. REV. 139, 171 (2001).
152. Carlos Manuel Vazquez, W(h)ither Zschering?, 46 VILL. L. REV. 1259, 1261 (2001) (arguing that "the [Crosby] Court's preemption analysis was anything but ordinary" and is fairly characterized as "narrow only if its approach to preemption were confined to suits implicating foreign relations").
153. Goldsmith, Foreign Courts, supra note 29, at 1681-83
154. Goldsmith, Statutory Foreign Affairs Preemption, supra note 29, at 191-92.
155. Consider in this regard the Food and Drug Administration's struggle to regulate tobacco, and the Court's denial of such authority in the teeth of a fairly clear statement of agency authority based on a mass of contrary legislative behavior. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125-29 (2000) (finding that cigarettes and smokeless tobacco do not fall within "combination products").
156. Outside the foreign affairs context, scholars have emphasized how the realization of constitutional rights has been the work of Congress and the courts acting in complex and dynamic interactions. See, e.g., Evan Caminker, "Appropriate" Means-Ends Constraints on Section 5 Powers, 53 STAN. L. REV. 1127, 1172-73 (2001) (focusing on realization of racial equality interests).
157. See, e.g., Aziz Z. Huq, Forum Choice for Terrorism Suspects, 61 DUKE L.J. 1415, 1443-54 (2012) (cataloguing several different ways in which the political courts can manipulate jurisdiction for epistemic ends or to minimize agency costs in the national-security domain).
158. For the coining of this term, see Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543, 543 (1954) (describing how federalism guards against tyranny).
159. See JOHN HARTELY, DEMOCRACY AND DISTRUST 73-104 (1980) (developing a process-based theory of individual rights protection).
160. Theories of judicial review based on political process have been criticized on the ground that they lack a baseline for ascertaining when political-branch process is sufficient. See, e.g., Lawrence Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 YALE L.J. 1063, 1073 (1980) ("[H]ow we are supposed to distinguish . . . 'prejudice' from principled, if 'wrong,' disapproval. Which groups are to count as 'discrete and insular minorities'? Which are instead to be deemed appropriate losers . . . ?"). This has some force, but a proponent of such theories might respond that even in the absence of a baseline, theories based on political process failure guide courts by providing information about where comparatively more or less judicial investment is warranted, even if it cannot say precisely how much investment is ever needed in any one place.
161. Lynn A. Baker & Mitchell N. Berman, Getting off the Dole: Why the Court Should Abandon Its Spending Doctrine, and How a Too-Clever Congress Could Provoke It to Do So, 78 IND. L.J. 459, 476 (2003).
162. For empirical evidence of this effect, see Lynn A. Baker, Constitutional Ambiguities and Originalism, 103 NW. U. L. REV. 495, 535-36 (2009) (listing per capita transfers for the ten largest and smallest states).
163. For a discussion of possible definitions of federalism goods, see Aziz Z. Huq, Tiers of Scrutiny in Enumerated Powers Jurisprudence, 80 U. CHI. L. REV. (forthcoming 2013) (on file with authors).
164. Larry Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 223 (2000)
165. William H. Riker, The Senate and American Federalism, 49 AM. POL. SCI. REV. 452, 455 (1955) (showing that the Senate has historically failed to reflect states' interests in any systematic way).
166. Efforts to excise treaties from the Supremacy Clause during the 1950s, known collectively as the Bricker Amendment, point toward the presence, at least in some periods, of more general hostility to the binding effects of international law. Oona A. Hathaway, Sabria McElroy & Sara Aronchick Solow, International Law at Home: Enforcing Treaties in U.S. Courts, 37 YALE J. INT'L L. 51, 68-70 (2012).
167. Accord Kenneth Roth, The Charade of United States Ratification of International Human Rights Treaties, 1 CHI. J. INT'L L. 347, 347 (2000) (arguing that the U.S. approach to human rights treaties is characterized by "fear that international standards might constrain the unfettered latitude of the global superpower, and arrogance in the conviction that the United States, with its long and proud history of domestic rights protections, has nothing to learn on this subject from the rest of the world").
168. Cf. MAXWELL L. STEARNS & TODD J. ZYWICKI, PUBLIC CHOICE CONCEPTS AND APPLICATIONS IN LAW 112 (2009) ("Scholars commit the nirvana fallacy when they identify a defect in a given institution and then, based upon the perceived defect, propose fixing the problem by shifting decisional responsibility somewhere else.").
169. An early and important law and economics account of statutory interpretation favors preference-tracking default rules of statutory construction. See William M. Landes & Richard A. Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J.L. & ECON. 875, 879 (1975) (arguing that courts enforce deals struck by interest groups in the form of laws). For the purposes of this Article, we do not distinguish between the preferences of a historical enacting Congress and those of a current Congress.
170. Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 COLUM. L. REV. 2027, 2084 (2002) [hereinafter Elhauge, Preference-Eliciting Statutory Default Rules] (drawing this distinction and favoring current legislators' preferences). But Elhauge includes pro-federalism canons somewhat akin to our ultimate recommendation under this rubric.
171. Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 COLUM. L. REV. 2162, 2250-51 (2002) (discussing the federalism canon in Gregory v. Ashcroft, 501 U.S. 452, 461 (1991)).
172. Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 YALE L.J. 87, 93 (1989).
173. Elhauge, Preference-Eliciting Statutory Default Rules, supra note 192, at 2165.
174. The description and analysis of interest-group dynamics in legislatures is the domain of public choice scholarship. Cf. STEARNS & ZYWICKI, supra note 190, at 49-53 (summarizing economic theory of regulation).
175. But see Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. REV. 1, 28 (2007) (proposing an antipreemption default rule as a way of promoting "an open and vigorous debate on the floor of Congress").
176. Further, it will be difficult for courts to identify any subcategory of cases in which a preference-eliciting rule is warranted. See Elizabeth Garrett, Preferences, Laws, and Default Rules, 122 HARV. L. REV. 2104, 2137 (2009) (arguing that "the institutional capacity of judges to apply the preference-eliciting canons seems particularly questionable").
177. See, e.g., Nw. Austin Mun. Util. Dist. No. 1 v. Holder, 557 U.S. 193, 203-06 (2009) (invoking federalism as a reason to narrowly construe the Voting Rights Act)
178. Gregory v. Ashcroft, 501 U.S. 452, 461 (1991) (applying pro-federalism canon to limit intrusions on state government functions).
179. See, e.g., BFP v. Resolution Trust Corp., 511 U.S. 531, 544 (1994) (reading federal bankruptcy statute in light of state property law norms)
180. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (discussing presumption against preemption).
181. Cf. Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223, 1253 (1999) (noting "legislative inertia," even on foreign affairs-related matters, in Congress).
182. For a defense of preference-estimating canons along these lines, see Cass R. Sunstein, Must Formalism Be Defended Empirically?, 66 U. CHI. L. REV. 636, 649-50 (1999) (noting that default rules can affect the preferences of relevant actors). Moreover, canons are a way to ensure that "existing understandings" are not changed "any more than is needed to implement the statutory objective."
183. David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. REV. 921, 925 (1992).
184. Michael McConnell has noted that this question about the continuing role of the states can be asked more generally. Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. CHI. L. REV. 1484, 1491 (1987) ("That the states should retain substantial independent authority is not self-evident.").
185. Cf. Richard H. Fallon, Jr., The "Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U. CHI. L. REV. 429, 439 (2002) ("There is no agreed-upon definition of constitutional federalism.").
186. Arizona v. United States, 132 S. Ct. 2492, 2511 (2012) (Scalia, J., dissenting)
187. Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002) ("The preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities.").
188. Judith Resnik & Julie Chi-hye Suk, Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty, 55 STAN. L. REV. 1921, 1923 (2003) (describing the Court's use of dignity in analyzing federalism interests as "a return to an older conception of the sovereign" under monarchical rule)
189. Peter J. Smith, States as Nations: Dignity in Cross-Doctrinal Perspective, 89 VA. L. REV. 1, 6-8 (2003) (suggesting that the concept of state sovereignty should be given meaning by drawing on international law).
190. Cf. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139, 151 (1993) (Stevens, J., dissenting) (calling the dignity rationale "embarrassingly insufficient").
191. See, e.g., United States v. Lopez, 514 U.S. 549, 577 (1995) (Kennedy, J., concurring) ("Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory.").
192. See, e.g., New York v. United States, 505 U.S. 144, 168-75 (1992) (protecting state legislatures from "commandeering").
193. Note that we list here only the potential benefits of decentralization. We do not claim that decentralization does not have detriments-such as destructive races to the bottom and spillover effects-only that they are not relevant to the current point. For a comprehensive taxonomy and analysis of both costs and benefits, see JENNA BEDNAR, THE ROBUST FEDERATION: PRINCIPLES OF DESIGN 25-52 (2009) (outlining both benefits and problems with federalism).
194. Note that we list here only the potential benefits of decentralization. We do not claim that decentralization does not have detriments-such as destructive races to the bottom and spillover effects-only that they are not relevant to the current point. For a comprehensive taxonomy and analysis of both costs and benefits, see JENNA BEDNAR, THE ROBUST FEDERATION: PRINCIPLES OF DESIGN 25-52 (2009) (outlining both benefits and problems with federalism).
195. Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180, 2218 (1998).
196. See Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485, 1551-52 (1994) (noting stepping stone function).
197. Preferences can vary over whether or when international law should trump state law. See Julian G. Ku, Gubernatorial Foreign Policy, 115 YALE L.J. 2380, 2388-92 (2006) (describing governors' divergent reactions to International Court of Justice rulings on American death penalty cases).
198. See Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 425-26 (2003) (noting the presence of "roughly 5,600 documented Holocaust survivors" in California, but also criticizing "the weakness of the State's interest . . . in regulating [the insurance industry for the purpose of mitigating its reliance on profits gained through exploitation of the Holocaust]"). The Court's failure here is made more egregious by the compelling normative interests on the side of Holocaust survivors, but the point has more general application. Consider, for example, the Apartheid-related divestiture movement.
199. See Note, State and Local Anti-South African Action as an Intrusion upon the Federal Power in Foreign Affairs, 72 VA. L. REV. 813, 815 (1986) (discussing state, county, and municipal actions restricting trade with South Africa).
200. Bans on vote trading mean that intensely held preferences cannot be satisfied through buying others' stakes in a single political forum, making the multiplicity of forums a useful means of allowing citizens to register intensity. For an illuminating account of the connection between intensity of preferences and bans on vote trading, see Saul Levmore, Voting with Intensity, 53 STAN. L. REV. 111, 113 (2000) ("The obvious question in the case of voting rights is whether intense preferences can be accommodated without shifting enormous power to wealthier citizens.").
201. In particular, problems of multiple taxation may render state interventions problematic. See, e.g., Japan Line, Ltd. v. Cnty. of L.A., 441 U.S. 434, 448 (1979) (invalidating application of ad valorem property tax on foreign shipping).
202. The Ninth Circuit Court of Appeals recently held that there was no conflict between U.S. federal policy regarding the Armenian genocide and a California statute extending the statute of limitations for claims of descendants of Armenians involving insurance policies purchased by their ancestors prior to 1923. Movsesian v. Victoria Versicherung AG, 629 F.3d 901 (9th Cir. 2010).
203. CAL. INS. CODE §§ 13800-07 (West 2003).
204. See Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 405-06 (2003) (describing early negotiations).
205. For a more general theory of the importance of domestic constraints in international negotiations, see Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two Level Games, 42 INT'L ORG. 427 (1988) (discussing entanglement of domestic and international politics).
206. Cristina M. Rodríguez, The Significance of the Local in Immigrant Regulation, 106 MICH. L. REV. 567, 572 (2008) (advocating an integrated approach to immigration reform that involves both states and the federal government).
207. See Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 367 (2000) (describing 1996 Mass. Acts 239, ch. 130).
208. Richard B. Bilder, The Role of States and Cities in Foreign Relations, 83 AM. J. INT'L L. 821, 821-22 (1989) (describing economic efforts partnerships, immigration-related policies, and South Africa-related divestiture policies).
209. See, e.g., Judith Resnik, Foreign as Domestic Affairs: Rethinking Horizontal Federalism and Foreign Affairs Preemption in Light of Translocal Internationalism, 57 EMORY L.J. 31, 56-57 (2007) (documenting state and local action to implement the Convention on the Elimination of Discrimination Against Women)
210. THE FEDERALIST NO. 45, at 294-95 (James Madison) (I. Kramnick ed., 1987).
211. Andrzej Rapaczynski, From Sovereignty to Process: The Jurisprudence of Federalism After Garcia, 1985 SUP. CT. REV. 341, 374.
212. This assumes that "federalism . . . must operate so as to keep centrifugal and centripetal forces in rough equipoise," Josh Chafetz, Multiplicity in Federalism and Separation of Powers, 120 YALE L.J. 1084, 1092 (2011), notwithstanding changed circumstances that, as a matter of first principles, might justify a rebalancing of authority between national and subnational units. We accept arguendo the stipulated goal of "rough equipoise" as a restatement of the commonly accepted views of American federalism; we do not mean (at least here) to suggest there are no reasons to doubt this common wisdom.
213. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).
214. THE FEDERALIST NO. 58, at 394 (James Madison) (I. Kramnick ed., 1987)
215. See U.S. CONST. art. I, § 2 (linking state electoral qualifications to federal electoral qualifications).
216. Brian Galle & Mark Seidenfeld, Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power, 57 DUKE L.J. 1933, 1939, 1948-83 (2008) (arguing that "for the most part, agencies outperform" other federal branches as allocators of policy-setting power)
217. Catherine Sharkey, Federalism Accountability: "Agency-Forcing" Measures, 58 DUKE L.J. 2125, 2127-28 (2009).
218. Nina A. Mendelson, A Presumption Against Agency Preemption, 102 NW. U. L. REV. 695, 695-718 (2008) (discussing lack of institutional competence of agencies in preempting state law)
219. See Steven Croley, White House Review of Agency Rulemaking: An Empirical Perspective, 70 U. CHI. L. REV. 821, 843-45 (2003) (documenting state contacts with OIRA).
220. For the most recent of these, see Preemption: Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 24,693, 24,693-94 (May 20, 2009)
221. Exec. Order No. 13,132, 3 C.F.R. 206 (2000), reprinted as amended in 3 U.S.C. § 301 (2006) (entitled "Federalism").
222. Recent examples of cooperative regulatory schemes that reserve significant roles for state exercises of discretionary authority are the Patient Protection and Affordable Care Act and the Dodd-Frank Act. See Gillian E. Metzger, Federalism Under Obama, 53 WM. & MARY L. REV. 567, 614 (2011) (discussing structures of Dodd-Frank Act that provide state officials with a direct role in administrative decisionmaking).
223. See Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 YALE L.J. 1256, 1271-84 (2009) (providing examples)
224. Philip J. Weiser, Federal Common Law, Cooperative Federalism, and the Enforcement of the Telecom Act, 76 N.Y.U. L. REV. 1692, 1698-1703 (2001) (describing local tailoring, interstate competition, and experimentation as reasons for cooperative federalism).
225. See, e.g., Nicole Huberfeld, Bizarre Love Triangle: The Spending Clause, Section 1983, and Medicaid Entitlements, 42 U.C. DAVIS L. REV. 413, 462 (2008) (noting that the federal agency responsible for Medicaid "is notoriously uninterested in enforcing the terms of State plans against the states; instead it seeks cooperation, when it makes demands at all")
226. Abigail R. Moncrieff, The Supreme Court's Assault on Litigation: Why (and How) It Might Be Good for Health Law, 90 B.U. L. REV. 2323, 2328 (2010) ("The problem today is not a lack of regulatory presence but rather a lack of regulatory rigor.").
227. See RENA STEINZOR ET AL., BEHIND CLOSED DOORS AT THE WHITE HOUSE: HOW POLITICS TRUMPS PROTECTION OF PUBLIC HEALTH, WORKER SAFETY, AND THE ENVIRONMENT 8 (2011), available at http://www.progressivereform.org/articles /OIRA-Meetings-1111.pdf (discussing the politics of OIRA review).
228. For seminal studies of bureaucracy in the foreign policy-making domain, see Graham Allison & Mort Halperin, Bureaucratic Politics: A Paradigm and Some Policy Implications, 24 WORLD POL. 40, 42 (1972) (emphasizing bureaucratic dynamics).
229. For an early challenge to this claim, see Robert J. Art, Bureaucratic Politics and American Foreign Policy: A Critique, 4 POL'Y SCI. 467, 486 (1973) (doubting the explanatory force of models that focus exclusively on bureaucratic dynamics without accounting for external partisan political forces).
230. See GRAHAM ALLISON & PHILIP ZELLIKOW, ESSENCE OF DECISION 166-70 (2d ed. 1999) (emphasizing the importance of "standard operating procedures" in determining policy outcomes); Art, supra note 282, at 479 (exploring limits of presidential control)
231. Barton J. Bernstein, Understanding Decision-Making: United States Foreign Policy and the Cuban Missile Crisis, 25 INT'L SECURITY 134, 159-64 (2000) (emphasizing importance of hierarchy and presidential leadership). Even critics of the bureaucratic politics paradigm nevertheless concede the importance of "factors that are either determined or strongly influenced by organizational or bureaucratic considerations."
232. David A. Welch, The Organizational Process and Bureaucratic Politics Paradigm, 17 INT'L SECURITY 112, 138 (1992).
233. Martin A. Smith, U.S. Bureaucratic Politics and the Decision to Invade Iraq, 14 CONTEMP. POL. 91, 97 (2008).
234. For an acute analysis of the connection between domestic politics and military conflicts, see James D. Fearon, Domestic Political Audiences and the Escalation of Political Disputes, 88 AM. POL. SCI. REV. 577, 586 (1994).
235. BEDNAR, supra note 217, at 25 ("In general, security is promoted through command coordination, implying centralization of foreign policy and war-making."); accord CURTIS A. BRADLEY & JACK L. GOLDSMITH, FOREIGN RELATIONS LAW 208-09 (4th ed. 2011)
236. see also JAMES MADISON, Vices of the Political System of the United States, in JAMES MADISON: WRITINGS 69, 71 (Jack N. Rakove ed., 1999) (framing flaws in the Articles of Confederation in terms of modern conceptualization of collective action problems).
237. Larry D. Kramer, Madison's Audience, 112 HARV. L. REV. 611, 618 (1999).
238. U.S. CONST. art. I, § 10, cl. 3 ("No State shall, without the Consent of Congress . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay . . . .").
239. But cf. Matthew C. Waxman, National Security Federalism in the Age of Terror, 64 STAN. L. REV. 289, 307-09 (2012) (arguing that some decentralization of intelligence powers is inevitable).
240. This can be understood as a claim about the negative externalities that arise from states' free riding. Cf. Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 STAN. L. REV. 115, 138 (2010) (linking free riding to the need for national solutions).
241. One of the authors has elsewhere developed some reasons for caution about standard collective action federalism arguments. See generally Aziz Z. Huq, Does the Logic of Collective Action Explain Federalism Doctrine?, 66 STAN. L. REV. (forthcoming 2013) (on file with authors). The argument developed here does not rely on the species of broad-brush, wholesale arguments critiqued in that article.
242. There are different conceptions of democratic peace theory. For greater discussion, see Michael W. Doyle, Kant, Liberal Legacies, and Foreign Affairs, 12 PHIL. & PUB. AFF. 205 (1983).
243. There are different conceptions of democratic peace theory. For greater discussion, see Michael W. Doyle, Kant, Liberal Legacies, and Foreign Affairs, 12 PHIL. & PUB. AFF. 205 (1983).
244. The United Nations is the most salient example of this type of organization. N.D. WHITE, KEEPING THE PEACE: THE UNITED NATIONS AND THE MAINTENANCE OF INTERNATIONAL PEACE AND SECURITY 3 (2d ed. 1997) ("The principal function of the United Nations is to maintain international peace and security.").
245. John J. Mearsheimer, The False Promise of International Institutions, INT'L SECURITY, Winter 1994-95, at 7 (arguing that "institutions . . . hold little promise for promoting stability in the post-Cold War world," because institutions "are based on the self-interested calculations of great powers" and thus "have no independent effect on state behavior").
246. LELAND M. GOODRICH & ANNE P. SIMONS, THE UNITED NATIONS AND THE MAINTENANCE OF INTERNATIONAL PEACE AND SECURITY 597-603 (1955) (describing the purpose of the United Nations as the "maintenance of international peace and security," which is accomplished through the actions of their collective members in various principal United Nations organizations).
247. Roger P. Alford, The Proliferation of International Courts and Tribunals: International Adjudication in Ascendance, 94 AM. SOC'Y INT'L L. 160 (2000)
248. Suzannah Linton & Firew Kebede Tiba, The International Judge in an Age of Multiple International Courts and Tribunals, 9 CHI. J. INT'L L. 407, 408 (2009) ("Within this evolving international system, legal disputes are increasingly brought for resolution before judicial or quasi-judicial institutions.").
249. For example, Human Rights Watch regularly provides detailed reports on human rights abuses, health, environmental protection, corporate responsibility, and state counterterrorism efforts, among other things. Reports, HUMAN RIGHTS WATCH, http://www.hrw.org/publications/reports (last visited Jan. 17, 2013).
250. ARTHUR A. STEIN, WHY NATIONS COOPERATE: CIRCUMSTANCE AND CHOICE IN INTERNATIONAL RELATIONS 11 (1990) ("Indeed, the realists' very distinction between different international systems as unipolar, bipolar, and multipolar is drawn from economics.")
251. Joanne Gowa, Bipolarity, Multipolarity, and Free Trade, 83 AM. POL. SCI. REV. 1245, 1255-56 (1989) (demonstrating that bipolar international political systems are more advantageous than multipolar systems in free trade because of stronger incentives for alliance and lower chances of exit)
252. Edward D. Mansfield, Concentration, Polarity, and the Distribution of Power, 37 INT'L STUD. Q. 105, 110-12 (1993) (arguing that polarity is more useful when combined with an analysis of concentration of power).
253. See JOHN J. MEARSHEIMER, THE TRAGEDY OF GREAT POWER POLITICS 55-67 (2001) (summarizing how power in international politics is based on latent, or socioeconomic, power, and military power)
254. KENNETH N. WALTZ, THEORY OF INTERNATIONAL POLITICS 193 (1979)
255. See Eric A. Posner, Kathryn E. Spier & Adrian Vermeule, Divide and Conquer, 2 J. LEGAL ANALYSIS 417, 426-27 (2010) (modeling divide and conquer strategies as, inter alia, a Stag Hunt game, and explaining how third-party bribes can yield suboptimal outcomes for participants).
256. For arguments that the United State is often hegemonic, see Stephen G. Brooks & William C. Wohlforth, American Primacy in Perspective, FOREIGN AFF., July-Aug. 2002, at 20-21 ("If today's American primacy does not constitute unipolarity, then nothing ever will.")
257. Ian L.G. Wadley, U.S. and Them: Hubs, Spokes, & Integration with Reference to Transboundary Environment and Resource Issues, 21 BERKELEY J. INT'L L. 572, 578-79 (2003) (noting American attempts to maintain good state-to-state relationships while preserving its status as a hegemonic state).
258. Background Paper on SIPRI Military Expenditure Data, 2011, STOCKHOLM INT'L PEACE RES. INST., 2 (Apr. 17, 2011), http://www.sipri.org/research/ armaments/milex/sipri-factsheet-on-military-expenditure-2011.pdf.
259. See Krittivas Mukherjee & Alister Doyle, World Leaders Try to Save Troubled Climate Talks, REUTERS (Dec. 16, 2009), http://in.reuters.com/article/ 2009/12/16/idINIndia-44776420091216 (describing divisive climate talks at Copenhagen in which U.S. negotiators were locked in debate and unable to reach an agreement accommodating their preferences).
260. Alien Tort Claims Act, 28 U.S.C. § 1350 (1948)
261. Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 261 (2d Cir. 2007) (ruling that plaintiffs may sue defendant corporations for violations of international law related to Apartheid under the Alien Tort Claims Act)
262. Kadic v. Karadzic, 70 F.3d 232, 242-44 (2d Cir. 1995) (reversing the lower court and finding claims of genocide, war crimes, torture, and summary execution in Bosnia-Herzeovina to be sufficiently alleged under the Alien Tort Claims Act).
263. United States v. Pink, 315 U.S. 203, 227-28 (1942)
264. United States v. Belmont, 301 U.S. 324, 330 (1937) (allowing the President to resolve outstanding claims between Russia and the United States without the advice and consent of the Senate).
265. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 688 (1981) (holding that the President has power to settle by executive order claims that are "a necessary incident to the resolution of a major foreign policy dispute between our country and another, and where, as here, we conclude that Congress acquiesced to the President's action").
266. See Highlights of the Supreme Court's 2003-2004 Term: References for Sosa v. Alvarez-Machain (June 29, 2004), CORNELL UNIV. L. SCH. LEGAL INFO. INST., http://www.law.cornell.edu/supct/background/03-339-ref.html (last visited Jan. 20, 2013) (listing various amicus filings).