Ryan Baasch* & Saikrishna B. Prakash**
Though the Constitution conspicuously bars some state involvement in foreign affairs, the states clearly retain some authority in foreign affairs. Correctly supposing that state participation may unnecessarily complicate or embarrass our nation’s foreign relations, the Supreme Court has embraced aggressive preemption doctrines that sporadically oust the states from discrete areas in foreign affairs. These doctrines are unprincipled, supply little guidance, and generate capricious results. Fortunately, there is a better way. While the Constitution permits the states a limited and continuing role, it never goes so far as guaranteeing them any foreign affairs authority. Furthermore, the Constitution authorizes Congress to enact laws necessary and proper for carrying into execution federal powers. We believe that Congress can use this authority to adopt preemption mechanisms that reflect its view of the optimal role of states in international affairs. When it comes to policing state involvement in foreign affairs, Congress, rather than the courts, ought to be in the driver’s seat. Critically, Congress can proactively police the states, meaning that it need not wait for state mischief before enacting legislation. To give a sense of the possible and to alter the terms of a debate focused on judicial policing of the states, we recommend several novel mechanisms of preempting or deterring state intervention in foreign affairs and suggest categories of state law that ought to trigger these mechanisms. The precise mix is for Congress to consider based on its own sense of the vices and virtues of state forays in international affairs and of our existing foreign affairs federalism.
* Law Clerk to Judge Karen LeCraft Henderson, 2015–16. The authors thank John Harrison for helpful conversations and Mary Miller and Jonathan Backer for rather helpful comments.
** James Monroe Distinguished Professor of Law, University of Virginia School of Law. Professor Prakash would like to thank the University of Virginia for summer research support and the excellent law librarians of the University of Virginia.