Davis: Upstairs, Downstairs: Subnational Incorporation of International Human Rights Law at the End of an Era

Martha F. Davis (Northeastern Univ. - Law) has posted Upstairs, Downstairs: Subnational Incorporation of International Human Rights Law at the End of an Era (Fordham Law Review, forthcoming). Here's the abstract:

Traditionally, states and the federal government maintained an "upstairs, downstairs" relationship when it came to global affairs, with states serving in the background role as the downstairs members of the national household. However, the traditional federal-state relationship in the international affairs arena is increasingly unworkable as states become more and more transnationally active. This is particularly true in the area of human rights implementation, where states have both used their own policies to associate with human rights movements worldwide and have incorporated human rights norms into their own state laws. Federal courts' approach to human rights implementation, however, has failed to recognize these complexities. Instead, through American Insurance Ass'n v. Garamendi and Crosby v. National Foreign Trade Council, the courts have endorsed a regime that generally disfavors human rights implementation on the state level by finding broad federal preemption, even in the absence of any direct conflict between state and federal policy. At the same time, the recent Supreme Court decision of Medellin v. Texas permits states to eschew human rights norms even in the face of a contrary executive memorandum and Senate ratification. Examining these contrasting cases in detail, this essay proposes a series of principles to establish greater scope for subnational human rights implementation through a more sensitive and realistic approach to federal preemption doctrine in an age when states are no longer simply a "downstairs" presence but are directly engaged in the human rights project.