States' Rights and Foreign Policy: Some Things Should Be Left to Washington

Author(s): Brannon P. Denning and Jack H. McCall

Source: Foreign Affairs, Vol. 79, No. 1 (Jan. - Feb., 2000), pp. 9-14
Published by: Council on Foreign Relations
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 States' and
Rights
Foreign Policy
SomeThings ShouldBe Left toWashington

Brannon P. Denning and Jack H. McCall

In thewaning days of apartheid, South or atomic weapons outside city limits.

Africa found itself the subject of sanctions Again, although the constitutionality of
imposed not only by Congress but by a such ordinances was questioned, few
states court were
number of U.S. and municipalities challenges brought. As with
as well. These measures
ranged from the anti-apartheid sanctions, no case made
requirements that the state or city in it to the
Supreme Court.

question rid itself of holdings in South In the early 1990s, as first the Cold
Africa or in companies doing business War and then apartheid ended, so did
to that corporations state and local
there requirements forays into foreign policy.
bidding for government contracts likewise But today this subfederal assertiveness is
divest. Although the apartheid regime back with a vengeance. China, Burma

sought to challenge some of these laws, (Myanmar), Nigeria, North Korea, Cuba,
little litigation resulted, in part because and Switzerland have found themselves
few lawyers wished to associate themselves state and local sanctions
targeted by
with such a loathsome government. adopted in the face of strong State Depart
Local sanctions were not unprecedented. ment criticism.
This time, however, the
Decades earlier, in the 1960s, U.S. states actual subjects of the sanctions?mainly
had occasionally forbidden government American companies faced with the
from communist countries or Hobsons choice of abandoning overseas
purchases
that most state materials be markets or lucrative
required losing government
bought domestically. In the 1980s, at the contracts?are
challenging the statutes
same time as the apartheid battle, some in court. And they
are
winning. One such
cities declared themselves "nuclear-free case is about to be heard by the
Supreme
zones" and sought to nuclear waste Court, and the outcome there should be
keep

Brannon P. Denning isAssistant Professor at Southern Illinois Univer

sity School of Law. Jack H. McCall is an Associate at Hunton &

Williams in Knoxville, Tennessee.

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 Brannon P. Denning and lackH. McCall
similar. Local are
sanctions area.
being struck (The very purpose for giving this
down, as well should. their power to had been to end
they Despite Washington
laudable motives, such laws are not only the conflicting state commercial
policies
bad policy?they are unconstitutional. that plagued the country under the Ar
ticles of Confederation.) The appeals
LETTER OF THE LAW court
rejected Massachusetts' argument
InNational
Foreign
Trade Councilv. Natsios, that it had a right not to support, directly
decided in June 1999, theU.S. Court of or
indirectly, regimes whose human

Appeals for the First Circuit struck down rights records it found objectionable.
aMassachusetts statute that banned com Laudable humanitarian aims, the court
panies with direct or indirect business held, did not license states to violate
interests in Burma from for the Constitution.
competing
state contracts. The statute s terms were the court found Massachusetts'
Finally,
so broad that if a company owned a sub to the sanctions that
approach contrary
sidiary in Burma, the parent company Congress itself had adopted. According
would be deemed to be "doing business to the Constitution, federal laws are
with Burma" and be prohibited from supreme; state laws expressly or implicitly
on contracts to to in conflict with those of Congress must
bidding supply goods
Massachusetts?even if the subsidiary was give way. Sometimes Congress explicitly
in a completely different line of business. declares an intent to
preempt similar
A federal district court had first struck state laws. More
frequently, Congress
down the statute in November 1998, ruling remains silent, and courts must determine
it an encroachment on the whether there is any room for the states
impermissible
federal to conduct to action or
prerogative foreign supplement congressional
affairs. The decision reminded states that whether such would conflict
supplements
federalism is a two-way street:
just
as the with the intended congressional scheme.
states have in which the federal In NatsioSy the court concluded that al
spheres
government may not intrude, Washington though the goals of the federal and state
is supreme in the areas assigned to it by the were
legislation regarding Burma similar,
Constitution. "State interests," the district the state sanctions conflicted with those

judge wrote, "no matter how noble, do not of Congress and could not stand.
s exclusive The appeals court offered Massachusetts
trump the federal government
foreign affairs power." the following consolation: "The passage
When its turn came, the court of of the Massachusetts Burma Law has

appeals
went even further. It found that resulted in significant attention being
in addition to the Consti to the Burmese
transgressing brought government's
tutions structural boundaries, the statute human rights record.
Indeed, itmay be
discriminated against foreign commerce, that the Massachusetts law was a catalyst
which states are forbidden to do. The for federal action." The court also noted
Constitution grants Congress the power the role that Massachusetts' congressional
to trade; courts have representatives played in crafting a federal
regulate foreign
long inferred from that grant limitations response. "Nonetheless," it concluded, "the
on a state's power to discriminate in this conduct of this nation's foreign affairs can

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 States' Rights and Foreign Policy
not be on behalf of land mines, the opposition of the
effectively managed despite
all of the nations citizens if each of the U.S. government?a result unthinkable

many state and local governments pursues 25 or 30 years ago. Policy entrepreneurship
its own foreign policy." among ngos out to abolish the death
The First Circuit s decision isbinding penalty has driven
recent
challenges
to
inMaine, Massachusetts, death sentences on non-U.S.
precedent only imposed
New Hampshire, Rhode Island, and citizens, on
grounds that they were arrested
Puerto Rico, and Massachusetts has and held in violation of the Vienna Con
it to the U.S. Court, vention on Consular Relations
(which
appealed Supreme
which has yet to hear the case. Meanwhile, guarantees detainees in foreign countries
29 other state and local governments the right to contact their consulates). Sim
outside the First Circuit have passed or ilarly,ngos have furnishedmuch of the
proposed 42 similar sanctions. Passage impetus for the state and local sanctions.
of 15 other such laws was attempted but Meanwhile, state have
policymakers
has failed in 13 states or been emboldened to a more active
municipalities play
so far. no new statutes or role in foreign affairs, once to
Although thought
ordinances have been passed since the be the exclusive province of the federal
Natsios decision?even in the wake of government. And why not? After all, states
recent crises in East Timor and Pakistan, compete for business, many
foreign
which otherwise have provoked states with urban centers host
might large foreign
them?proponents of local sanctions consulates, and some contain large
beyond the jurisdiction of the First numbers of resident aliens or recent
Circuit, vowing to fight for the right immigrants who retain close ties to their
to dictate have refused homelands. Given the new realities of
foreign policy,
to laws or suspend international relations, defenders of the
repeal existing
their operation. sanctions claim, state and local govern
ments should take the lead in
combating
DELUSIONS OF GRANDEUR international human rights abuses. Their
What has so emboldened cities and states? should not be asked
taxpayers, they add,
Two factors stand out: the increased role to support
repressive
or the
regimes
for the states on that do business with them.
brought by globalization, companies
and the rise of nongovernmental organi Little direction in the devolution
zations (ngos), particularly those promot debate has come from the federal executive

ing human rights worldwide. The latter branch, and state and local governments
have succeeded in the classical have interpreted this silence as tacit ap
replacing
view of international relations and inter state for the
proval. Apparent disregard
national law as high-level affairs conducted Vienna consular convention was motivated
elite policymakers with one in not so much to international
among by indifference
which grassroots now reach as the State
organizations agreements by ignorance;
millions worldwide through the Internet Department, until recently, made little
and the fax machine. An American-led effort to educate state and local law enforce
NGOwas for the drafting ment
largely responsible agencies about their responsibilities
and adoption of the recent treaty banning under the convention. Likewise, although

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 Brannon P Denning and lackH. McCall
the State made its opposition agreements, or compacts with
Department foreign
to some local sanctions known, the Clinton powers; from war; and from
making
administration did not file a brief in laying certain taxes on
foreign
commerce

Natsiosy apparently fearful of offending without congressional

consent.
human rights activists and sanctions* It is hardly credible to look at the
congressional supporters. Constitutions assignment of power and
its proscriptions on state involvement in
TALKING 'BOUT THE CONSTITUTION and to argue that, absent
foreign affairs
Subfederal sanctions have a visceral an express ban, states are free to
impose
appeal, particularly given the horrible sanctions on
foreign countries. Such an
as
human rights records of targets such argument epitomizes interpretative liter
Burma. Sanctions have even the alism at its most wooden and ignores the
captured
hearts and minds of those holding wildly historical context in which constitutional

divergent political views: anticommunist powers were assigned. For all that the
conservatives cherish them as tools to use original supporters and opponents of

against nations like Cuba and China, while constitutional ratification disagreed, both
liberals and human rights activists invoke sides would have accepted the absolute
them to bash regimes like Indonesias. necessity for uniformity in the conduct
Yet despite their peculiar transideological of foreign relations. Few dissented from
charm, local sanctions represent an attempt James Madison's statement in the Feder
states to co-opt the power to set
foreign alist no. 42 that the powers to conduct
by
as
policy?a power that the Constitution, foreign affairs constitute "an obvious and
the courts have long recognized, quite essential branch of the federal adminis

clearly allocates to
Washington. tration." "If we are to be one nation in
Articles I and II of the Constitution any respect," Madison wrote, "it clearly
for the conduct of foreign and to be in respect to other nations."
place primacy ought
military affairs squarely with Congress Alexander Hamilton noted elsewhere
and the president. The regulation and that since the actions of the individual
taxation of foreign commerce, states in the arena would
immigra foreign policy
tion, declarations of war, the appointment be charged against the United States as
and reception of ambassadors, the defini a whole, the power to set must
policy
tion and punishment of offenses against reside at the federallevel. In the Supreme
international law, the command of U.S. Court's contemporary phraseology, the

forces, the negotiation and United States must "with one

military speak
of treaties?all are left to the voice" on such matters.
approval
federal government. The federal, not Proponents of state and local sanctions
the state, judiciary hears cases dismiss Hamilton's concerns, arguing
involving today
ambassadors, consuls, public ministers, that international actors are now much
states and more Yet when
and controversies involving sophisticated. Japan and
or
foreign countries, citizens, subjects. the European Union protested Massa
states are chusetts' Burma law before theWorld
Moreover, expressly forbidden
byArticle I, Section 10, of theConstitution Trade Organization (wto), the action
from into treaties, alliances, was the United States,
entering brought against

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 States' Rights and Foreign Policy
since Massachusetts, as a subnational commerce; moreover, sanctions, like
has no wto taxes, constitute a
government, standing. "primeval governmental
Similarly, when Switzerland was hit of the sort unavailable to
activity" ordinary
with local sanctions in 1998 for not re commercial actors and are thus beyond the
the bank accounts of Holocaust scope of the exception.
leasing
a retailer
victims, major Swiss responded
American from INTERDICTING IMBECILITY
by boycotting products
states that had neither
imposed
nor in The First Circuit's decision inNatsios
tended to
impose sanctions. should remind statesthat just as there are
There are other, more esoteric, constitu mandated realms into
constitutionally
tional objections to laws likeMassachusetts'. which the federal government cannot
Sanctions burden commerce. As intrude, the federal government also has
foreign
discussed in the Natsios decision, the its own exclusive provinces. Furthermore,
Supreme Court has sharply limited states' policing the demarcation between federal
to interstate and foreign and subfederal as the First
powers regulate governments,
trade. State regulation touching foreign Circuit has done, is the appropriate
commerce has historically been more province of the judiciary.Although
tighdy circumscribed than that affecting Congress has the unquestioned power
commerce between states. After all, a to halt all sanctions initiatives if itwishes,
babble of state regulations would drown out so would divert legislative resources
doing
the "one voice" of the federal government. from other national concerns or force
are allowed, to react
Even where regulations Congress long after damage has
states must not discriminate been done to the nation's
against trading foreign policy.
partners from other states or countries. In this case, moreover, the executive
Yet the current subfederal sanctions do branch an unreliable of
proved guardian
just that. To argue that the restrictions its prerogatives: the Clinton administration,
to interstate and foreign companies wary of unfavorable declined
apply publicity,
alike (i.e., to anyone who trades with to get involved.
is to miss to invalidate
Burma) the point. The relevant Of course, sanctions like
discrimination, which Court Massachusetts' Burma law does not leave
Supreme
case law is between state and local governments without
prohibits, companies
(foreign or domestic) engaged in foreign reasonable alternatives. Subnational gov
commerce and those that are not, or at ernments can, of course, craft nonbinding
least not with the pariah regimes targeted resolutions to condemn
repressive foreign
the statute. More their officials
by regimes. effectively,
Nor, asNatsios does the can
recognized, lobby congressional representatives?
narrow
"market-participant" doctrine who would ignore such requests at their
here to excuse the discrimination. come election time?to act. These
apply peril,
(This doctrine allows states some leeway options
are not foreclosed
by the First
to interfere with commerce when Circuit's decision. If state and local
they
themselves are involved in the wish to exercise their con
directly governments
The a cohesive
transaction.) Supreme Court has stitutional rights in calling for
refused to apply the exception to foreign foreign policy against oppressive govern

FOREIGN AFFAIRS- 2000

January/February [ 13 ]

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 Brannon P Denning and Jack H. McCall

ments, can use means other than

they
sanctions. Private citizens and ngos,
too, can organize boycotts
to pressure
to The Face of Russia
businesses quit countries with poor and
measures Anguish, Aspiration,
human rights records. Such Achievement in Russian Culture
can have a effect, as
powerful apartheid-era H. Billington
James
activism demonstrated.

Supreme Court Justice Joseph Story,

1833 treatise on the
in his influential "With simple elegance,
Billington recreates the
Constitution, wrote that "notwithstanding
face of Russia through its
our boasts of freedom and independence," art...Whether one jour
Americans were victims "of our own neys to Russia by plane
or book, this is a superb
imbecility" in relations with other countries travel companion."
under the Articles of Confederation, be -
Foreign Affairs
cause states insisted on
conducting foreign H. BlLMNCTON
JA.M1S
themselves. Despite the otherwise
policy
welcome invigoration of federalism in the interested in Russia's turbu
"Anyone seriously

legislative and judicial branches of govern

lent past and clouded future would benefit from

reading The Face of Russia."

ment, Washington still must be given pride
-
The Los Angeles Times Book Review
of place in the conduct of foreign affairs
and the regulation of foreign commerce.
Without the central government's lead, Coming in February
the United States risks returning to the
Children in
Balkanization of its national interests War_
Alan and Susan Raymond
that necessitated the Constitution in the
first place.?
More than 2 million
children have died
inwars since 1990.
This is their story.

Through stories, draw

ings, and photo images

based on the documen
tary premiering on HBO, we witness the horrific
war crimes and losses as seen through the eyes of
children who have never known peace in their time.

?MBooksl
Books to watch.
Distributed to the trade by HarperCollinsPublishers.
Availablewherever books are sold.
www.tvbooks.com

[14] FOREIGN AFFAIRS-Volume 79No. 1

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