Supremacy of the Supremacy Clause: A \u3cem\u3eGaramendi\u3c/em\u3e-Based Framework for Assessing State Law That Intersects with U.S. Foreign Policy

State and local governments across the United States increasingly act in areas that intersect with foreign policy. Federalism concerns and U.S. foreign relations are thus in constant tension. In American Insurance Ass’n v. Garamendi, the U.S. Supreme Court in 2003 both expanded and detracted from where states and localities may permissibly act in areas that touch upon foreign affairs. This Note works within the confines of Garamendi to outline four distinct categories of state action that might intersect with foreign relations. It discusses how lower courts, namely the Ninth Circuit, the Eleventh Circuit, and the Northern District of Illinois, have categorized each type of case in recent interpretations of Supreme Court precedent. This Note does not advocate for or against the Court’s analysis in Garamendi. Rather, it argues that lower courts should minimize inconsistencies—which have become quite common—by categorizing all state actions that touch upon foreign affairs pursuant to this distinct framework in accordance with Garamendi. This Note’s typology acknowledges the Court’s expansion of Supremacy Clause-based conflict preemption in the foreign affairs realm, and it argues that: (1) state actions that add on to existing federal policy—specifically economic sanctions on foreign regimes—are categorically impermissible because such “pile ons” conflict with federal policy, and (2) where there is legitimately no federal policy on a specific subject matter, there can be no conflict. And in the absence of a conflict, states may constitutionally act pursuant to their police powers, even if their actions intersect with foreign affairs. This Note further argues that Garamendi’s expansion of conflict preemption significantly diminishes the weight of the dormant foreign affairs doctrine and that foregoing a Supremacy Clause analysis in favor of Zschernig v. Miller’s dormant foreign affairs doctrine would only be appropriate where a state reaches beyond its police power