Citizens Not Subjects: U.S. Foreign Relations Law and the Decentralization of Foreign Policy

After surveying in Part I these judicially created limitations on localities’ actions that affect foreign relations, Part II then explores how international tribunals increasingly circumscribe state and local actions. Although none of these tribunals’ decisions are directly binding on localities, these bodies can penalize the United States as a whole for a locality’s action that brings the U.S. into noncompliance with an international treaty or agreement. In turn, U.S. courts may find that these tribunals’ decisions, or simply a tribunal’s attention to a complaint, constitute enough interference with foreign relations to strike down the locality’s suspect policy. Indeed, the mere threat of U.S. judicial action or scrutiny by an international tribunal may in and of itself be enough to cause a locality to back down from actions it otherwise finds in its interest. Part III defends a limited decentralization of foreign relations. Advocating decentralization in this context is not an argument to necessarily limit the federal government’s role or its trumping power in foreign relations, but rather to legitimize localities as actors in foreign relations as well. The varied voices of the different branches of the federal government and of U.S. non-governmental actors mean that the United States has never truly spoken with “one voice” in foreign relations. Further, there are a number of reasons to believe that localities’ involvement in many aspects of foreign affairs has a positive impact...Part III then argues that courts are ill-suited to determine when localities’ policies unduly damage U.S. foreign relations. Instead, it is better to let the executive and legislative branches use their Constitutional prerogative to decide when to occupy or preempt certain activities within a field of foreign relations. Therefore, the federal judiciary should only strike down a state or local law that affects foreign relations when it is in explicit conflict with the Constitution or has been validly and clearly preempted by the executive or legislative branches... federal judiciary should use these doctrines with caution. Part IV applies the more jurisprudential and theoretical arguments discussed in Parts I, II, and III to a series of examples of localities’ actions that affect foreign relations. Part IV differentiates these actions into five categories. Such actions may: (1) foster exchange and cooperation with other countries; (2) protect or promote local markets and/or values in a manner that affects foreign relations; (3) judge other countries’ behavior; or (4) influence the federal government’s foreign policy. Localities may also (5) adopt or borrow from foreign or international law. It is chiefly actions that are deemed to protect or promote local markets and/or values (category two) that are placed under the greatest scrutiny under international law. Meanwhile, it is both these protective actions (category two) and actions that judge or criticize other countries (category three) that raise the greatest level of suspicion under U.S. jurisprudence. However, Part IV also notes that a restrictive interpretation of foreign relations law has implications for all five categories