Constraints on State-Level Foreign Policy: (Re)Justifying, Refining and Distinguishing the Dormant Foreign Affairs Doctrine

This article concludes that the Supreme Court’s reliance on, and clarification of, the dormant foreign affairs doctrine with a purpose-review test would allow state and local officials to discharge their responsibilities to act in accordance with the U.S. Constitution.Part II of this Article examines the policy arguments both for and against state-level foreign policies. These prudential arguments fall into five general categories: fairness/retaliation, efficiency/expertise, democratization, effectiveness, and the new post-Cold War geopolitical environment. The ends desired in allowing active state-level foreign policies can be achieved even in an environment in which states face severe restrictions on establishing their own foreign policies. In short, state-level foreign policies are not sound as a prudential matter.Part III engages in a multi-modal interpretation of the Constitution’s provisions on foreign affairs. The text of the Constitution explicitly prohibits the states from engaging in foreign relations in certain ways. The real question, however, is whether limits exist beyond these explicit textual prohibitions. The multi-modal interpretation of the Constitution undertaken in this Part admits that there are conflicting indications in the text and drafting history of the Constitution but still finds plenty of support for the existence of a dormant foreign affairs doctrine.Part IV focuses on an analysis of the Supreme Court’s opinion in the Zschernig case. This Part of the Article examines the three possible doctrinal tests under the dormant foreign affairs doctrine: threshold effects, balancing, and purpose review. This Article expresses a strong preference for purpose review because courts are best able to engage in this type of review independent of the views of the executive branch and foreign governments. Purpose review will lead to more consistent results among lower courts, it better respects traditional areas of state regulation and federal political branch views on whether certain international obligations should be self-executing, and, most importantly, it provides the best guidance to state and local officials assessing the constitutionality of their own actions.Part V continues the discussion of the test that should be adopted under the dormant foreign affairs doctrine by examining a potential market participant exception to the doctrine. A market-participant exception should be rejected under the dormant foreign affairs doctrine because justifications for the exception under the dormant Commerce Clause are inapplicable in the context of the dormant foreign affairs doctrine.Part VI distinguishes the dormant foreign affairs doctrine from the dormant Foreign Commerce Clause. In particular, the discussion reduces the additional prongs of analysis undertaken in dormant Foreign Commerce Clause cases to their bare bones and draws lessons for the dormant foreign affairs doctrine.Part VII explores whether federal actors can authorize actions by the states that would otherwise run afoul of the dormant foreign affairs doctrine. It is well-established that Congress can authorize actions by the states that otherwise violate the dormant Commerce Clause, but authorizations of state actions otherwise violating the dormant foreign affairs doctrine will often require approval by both Congress and the President. But some actions, specifically those in areas of federal power that are not only exclusive but non-delegable, could never be authorized.Part VIII critically examines the Supreme Court’s rulings in Crosby and Garamendi that have created confusion and a lack of clarity. It also looks at post-Garamendi lower court cases. These cases reveal a degree of confusion regarding the doctrine among some lower courts but also indicate that a majority of lower courts continue to apply the dormant foreign affairs doctrine (with heavy emphasis on purpose review).Part IX discusses the relative importance of courts vis-a-vis state officials in applying the dormant foreign affairs doctrine. The reality is that courts do not have the opportunity to constrain the states in many instances. Many businesses are simply not anxious to risk a public backlash by challenging state-level foreign policy measures in court. While the National Foreign Trade Council, a coalition of over 300 businesses engaged in international trade, has overcome the fear of being a plaintiff in a couple of instances, faithful application of constitutional constraints by state officials and representatives is ultimately required. Such faithfulness could be enhanced through Supreme Court clarification as lower courts’ opinions have jurisdictional limits.Part X examines whether the Supreme Court’s own rules of judicial restraint would prevent the Court from providing further clarity in a future case. A review of the cases suggests the Court could properly base a ruling on the dormant foreign affairs doctrine even when preemption grounds are also present.