Thursday, July 6, 2017

Galbraith: Cooperative and Uncooperative Foreign Affairs Federalism

Jean Galbraith (Univ. of Pennsylvania - Law) has published Cooperative and Uncooperative Foreign Affairs Federalism (Harvard Law Review, Vol. 130, no. 8, p. 2131, June 2017). Here's the introduction (footnotes omitted):

Foreign affairs are a matter for our national government. On this there was agreement from the beginning, with even the Jeffersonians accepting that the nation should be “one as to all foreign concerns,” albeit “several as to all merely domestic.” The text of the Constitution bestows a cornucopia of foreign affairs powers upon the federal government and explicitly limits the powers of the states. The received wisdom was that, as Alexis de Tocqueville wrote, “[n]ations in relation to each other are but single units” and “[a] nation needs a single government above all to give it the advantage when dealing with foreigners.”

But are foreign affairs exclusively a matter for our national government? And if not, then what can states and local governments do with regard to foreign affairs? Like other separation of powers issues, these questions have been with us throughout our constitutional history, sometimes salient and sometimes muted, expressed through the continued practice of various layers of government and the sporadic interventions of courts. From early on, states have engaged with issues involving both local and transnational dimensions, including immigration, the treatment of foreign nationals, and the use of foreign law.

Today the shared space between what is local and what is transnational is far greater. Just as issues once viewed as local matters increasingly came to be seen as national, so now they are increasingly taken to have transnational significance. Globalization presses on practically every front: trade, environment, security, health, human rights, investment, migration, and more. One prominent effect of this shift has been the rise of transnational regulation through treaties and other forms of international cooperation. The counterpart is the growing extent to which state and local governments act in this shared space. This is the focus of Professors Michael Glennon and Robert Sloane’s thoughtful recent book, Foreign Affairs Federalism: The Myth of National Exclusivity.

Glennon and Sloane frame their project as an attempt to debunk “three pervasive myths about foreign affairs federalism” (p. xv). One of these myths is conceptual, another constitutional, and the third political. The conceptual myth is that there is a “neat distinction” between domestic and foreign affairs (p. xvii). The constitutional myth is “that foreign policy is or should be, with a few minor and inconsequential exceptions, exclusively federal” (p. xviii). The political myth is “that state control equates with conservative — and federal [control] with liberal — political causes” (p. xvi). When put in their strongest form, the three read more like straw men than myths, but Glennon and Sloane use them effectively as foils for their own nuanced claims. Broadly speaking, Glennon and Sloane argue that states and cities constantly engage in activities with transnational implications and that constitutional law should be capacious in permitting these activities.

Central to Glennon and Sloane’s account is a description of the kinds of transnational work that states and cities are doing in practice (pp. 55–76). For the most part, the authors see states and cities as seeking to fill voids left by federal inaction in the transnational space (pp. 45–55). Their account should cheer liberal hearts. States and cities are not just trying to look after their citizens abroad, ensure security at home, and bring in more foreign investment. They are also working to slow climate change, promote human rights, and push back against oppressive foreign regimes. Of course, this is only some states and cities. Others are pursuing policies at the other end of the spectrum, such as laws seeking to crack down on undocumented immigrants. Nonetheless, Glennon and Sloane’s celebration of states, and especially cities, as potential guardians of liberal values feels eerily prescient in the wake of the 2016 election.

Glennon and Sloane draw a contrast between the dynamic state and local practice that they document and the contours of current Supreme Court doctrine. For Glennon and Sloane, the Court gets most issues of federalism and foreign affairs at least a bit wrong, and some quite wrong. They explore numerous aspects of the doctrine — dormant preemption, statutory preemption, the relationship between state law and federal common law, the treaty power, and the ability of states to enter into agreements with foreign governments. It is only in the last of these areas that they are unqualifiedly approving of the current law, and this is because the Supreme Court has not developed doctrine but has instead left untouched an increasingly permissive practice (p. 277). In the other areas, Glennon and Sloane offer careful analysis and thoughtful critiques of existing doctrine. One need not agree with each of their characterizations and preferred solutions to find their book to be an informative and valuable contribution to the literature on federalism and foreign affairs.

Yet Glennon and Sloane’s doctrinal focus does not adequately excavate the ways in which states and local governments engage in foreign affairs and how these ways relate to federal law and practice. It brings to mind a scene in Huckleberry Finn, in which Tom Sawyer insists that he and Huck must dig a tunnel with case-knives rather than pickaxes because he has “read all the books that gives any information about these things [and t]hey always dig out with a case-knife.” After hours of fruitless labor, Tom then sets down his case-knife and says, “Gimme a case-knife.”

Glennon and Sloane’s focus on the constitutional aspects of foreign affairs federalism as determined by the Supreme Court has some kinship with a case-knife. It works very well for some things, but not so well for understanding how various branches and levels of government are empowered or constrained with respect to foreign affairs. One reason for this, which Glennon and Sloane acknowledge, is simply that Supreme Court doctrine is not always a reliable guide to practice in foreign relations law, because the Court’s interventions are sporadic, discrete, and heavily limited by justiciability doctrines. More fundamentally, Glennon and Sloane pay relatively little heed to how actions by the federal political branches may affect the behavior of state and local governments. Instead, they largely assume that state and local governments are engaging against a backdrop of federal inaction. This leads them to pay particular attention to the doctrine of dormant foreign affairs preemption and to emphasize the virtues of states and cities as laboratories of democracy. Where they do consider how action by the federal political branches might affect state and local engagement in foreign affairs, they look almost exclusively at issues of preemption.

But the increasingly transnational nature of our society has done much more than raise the likelihood of state and local involvement in transnational issues. It has also made it much more likely that the federal political branches and state or local governments will find themselves interacting with respect to these issues. Such interactions have long been a mainstay of domestic federalism. The phrase “cooperative federalism” speaks to how the federal political branches can encourage state and local governments to pursue federal policies, including through the use of federal funding. More recently, Professors Jessica Bulman-Pozen and Heather Gerken have used the phrase “uncooperative federalism” to describe the ways in which state and local governments can in turn shape or resist these federal policies. Much of foreign affairs federalism — indeed, I suspect most of foreign affairs federalism — is now cooperative or uncooperative.

Climate policy provides a good example. Glennon and Sloane portray progressive state and local governments as having stepped up to act on climate change mitigation, including by embracing international standards, “despite the federal government’s failure to ratify the Kyoto Protocol” (p. 62). They identify efforts undertaken by California as a leading example (pp. 62–63). Reading their description, one might think that state and local governments are standing alone against climate change and that their legal ability to do so turns on their power to regulate against a backdrop of federal silence. In practice, however, the most important developments with respect to climate regulation have involved interactions between the federal and state political branches. During the George W. Bush Administration, the biggest impact that liberal states had with respect to climate change was likely their distinctly uncooperative decision to sue the Environmental Protection Agency for failing to regulate greenhouse gases under the Clean Air Act. Their victory in that case in turn provided California and other states with some authority to regulate greenhouse gas emissions under the cooperative federalism scheme set forth in the Clean Air Act. At least since that time, debate in the courts around the legality of California’s actions has centered on the scope of the Clean Air Act and administrative law principles, not on dormant foreign affairs preemption.

The interactive nature of foreign affairs federalism means that different tools — pickaxes, perhaps — are needed to understand and evaluate it. As to doctrine, while preemption remains an important issue, cooperative and uncooperative foreign affairs federalism implicates other strands of law as well. Among these are constitutional doctrines that relate to justiciability, like standing, and substantive ones aimed at commandeering and coercive conditions, which manage the extent to which the federal government can encourage or effectively force state and local governments to take certain actions. Looking outside of constitutional law, how state and local governments interact with the federal government in the foreign affairs space is further affected by international law, administrative law, particular statutory schemes, and sometimes even state law. As to practice, the fact that so much of foreign affairs federalism is cooperative or uncooperative has implications for the federal distribution of powers. Congress and the President can each try to enlist state and local governments in ways that enhance their own power at the expense of the other branch.

In what follows, I argue for reorienting the focus of foreign affairs federalism toward its cooperative and uncooperative aspects. In Part I, I situate Glennon and Sloane’s contribution within the broader literature on foreign affairs federalism and describe some of their contributions. In Part II, I briefly examine four of the examples of foreign affairs federalism given by Glennon and Sloane: the sister-cities program, trade sanctions and related measures, the regulation of undocumented immigrants, and climate change mitigation actions. I argue that both the political choices made by state and local governments and the legal consequences of these choices interact closely with a backdrop of federal statutes and executive branch action, while background constitutional principles about state power in the face of federal silence play a distinctly smaller role. In Part III, I draw on scholarly work engaging with cooperative and uncooperative federalism and consider what implications it offers for the foreign affairs context. This literature explores how the federal government can incentivize state and local governments to help advance federal interests, how these state and local governments can in turn influence or resist federal policy, and how both Congress and the executive branch can use state and local action to muster power at the expense of the other branch. At a high level of generality, these insights apply to the foreign affairs context. But because of the added complexity of the foreign affairs context — including its ties to international law and its increased reliance on strong executive power — the specifics cannot simply be imported wholesale. I therefore close by suggesting three sets of ways in which the practice and doctrine associated with cooperative and uncooperative foreign affairs federalism should differ from the domestic context.