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13.3 Federalism Concerns in Foreign Affairs

5 min read•july 30, 2024

Federalism in foreign affairs is a complex balancing act. The Constitution gives the federal government broad powers in international matters, but states still have some say. This tension has led to ongoing debates and court cases about who controls what.

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The Supreme Court has often sided with federal authority in foreign affairs, citing the need for a unified national voice. But some decisions have allowed state involvement, creating a nuanced landscape where the line between federal and state power remains blurry.

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Federal vs State Power in Foreign Affairs

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Constitutional Grants of Federal Foreign Affairs Powers

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  • The Constitution grants the federal government significant powers related to foreign affairs (making treaties, regulating foreign commerce, declaring war)
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  • These broad federal powers can potentially conflict with the Tenth Amendment's reservation of powers to the states, creating tension between federal foreign affairs authority and state sovereignty
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  • The establishes that federal law, including treaties, takes precedence over conflicting state laws, further complicating the balance between federal and state power in foreign affairs
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  • The concept of , in which both the federal and state governments have separate and independent powers, adds complexity to the division of authority in foreign affairs
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Judicial Interpretation of Federal vs State Authority in Foreign Affairs

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  • The courts have grappled with defining the boundaries between federal foreign affairs powers and state sovereignty, often favoring federal authority in cases of direct conflict
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  • In (1936), the Supreme Court recognized the federal government's broad authority in foreign affairs, describing it as "the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations"
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  • In (1968), the Supreme Court struck down an Oregon statute that restricted inheritance rights of non-resident aliens, holding that the law intruded upon the federal government's exclusive authority over foreign affairs
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  • However, in Barclays Bank PLC v. Franchise Tax Board of California (1994), the Supreme Court upheld a California tax law that affected foreign corporations, finding that it did not interfere with the federal government's ability to speak with "one voice" in foreign affairs
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Preemption Doctrine in Foreign Affairs

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Overview of Preemption Doctrine

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  • The doctrine holds that federal law supersedes conflicting state law when Congress has expressly or implicitly intended to occupy a field or when state law conflicts with federal law
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  • In the context of foreign affairs, courts have applied the preemption doctrine to invalidate state laws that interfere with the federal government's conduct of foreign policy or international relations
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  • The Supreme Court has recognized that the federal government's foreign affairs powers are "exclusive and plenary," suggesting a broad application of the preemption doctrine in this area
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Application and Criticism of Preemption Doctrine in Foreign Affairs

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  • The preemption analysis in foreign affairs cases often involves a fact-specific inquiry into the nature and extent of the state law's impact on federal authority and international relations
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  • In (2000), the Supreme Court struck down a Massachusetts law that restricted state purchases from companies doing business with Burma (Myanmar), finding that it was preempted by federal sanctions legislation
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  • In (2003), the Supreme Court invalidated a California law requiring insurance companies to disclose Holocaust-era policies, holding that it interfered with the federal government's foreign policy objectives
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  • The application of the preemption doctrine in foreign affairs has been criticized for its potential to unduly restrict state action and for the lack of clear guidance on the boundaries of federal preemption
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Dormant Foreign Affairs Power

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Overview of Dormant Foreign Affairs Power

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  • The dormant foreign affairs power is a judicial doctrine that prohibits states from engaging in activities that intrude upon the federal government's exclusive authority over foreign affairs, even in the absence of a conflicting federal law
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  • This doctrine is rooted in the notion that the nation must speak with "one voice" in foreign affairs and that state actions that undermine this unity are unconstitutional
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Application and Criticism of Dormant Foreign Affairs Power

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  • The Supreme Court has applied the dormant foreign affairs power to strike down state laws that have more than an incidental effect on foreign affairs or that create a risk of conflicting with federal foreign policy
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  • In Zschernig v. Miller (1968), the Supreme Court invalidated an Oregon statute that restricted inheritance rights of non-resident aliens, holding that it had "more than 'some incidental or indirect effect in foreign countries'" and intruded upon the federal government's exclusive foreign affairs power
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  • Critics argue that the dormant foreign affairs power is an overly broad and ill-defined doctrine that unduly restricts state action and lacks clear constitutional grounding
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  • The application of the dormant foreign affairs power has been inconsistent, with courts struggling to articulate clear standards for determining when state action impermissibly intrudes upon federal foreign affairs authority
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Federal vs State Authority in Foreign Affairs

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Historical Debates on Federal vs State Authority in Foreign Affairs

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  • The division of foreign affairs powers between the federal and state governments has been a source of controversy since the nation's founding, with the Federalist Papers and early Supreme Court cases addressing this issue
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  • In the Federalist Papers, Alexander Hamilton argued for a strong federal government with exclusive authority over foreign affairs, while Anti-Federalists advocated for greater state autonomy
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  • Early Supreme Court cases, such as (1796) and (1817), affirmed the supremacy of federal treaties over conflicting state laws
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Contemporary Debates on Federal vs State Authority in Foreign Affairs

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  • The rise of globalization and the increasing importance of international trade and investment have heightened tensions between federal and state authority in foreign affairs
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  • Contemporary debates have focused on issues such as state sanctions against foreign countries (e.g., Iran and Sudan), state regulation of foreign investment, and state involvement in international climate change agreements (e.g., Paris Agreement)
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  • In Crosby v. National Foreign Trade Council (2000), the Supreme Court struck down a Massachusetts law restricting state purchases from companies doing business with Burma (Myanmar), finding it preempted by federal sanctions legislation
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  • Scholars and policymakers continue to grapple with the appropriate balance between federal and state authority in foreign affairs, seeking to ensure national uniformity while preserving state autonomy and experimentation
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  • The resolution of these debates has significant implications for the conduct of U.S. foreign policy and the ability of states to address global challenges and engage with the international community
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