Law, College of


Date of this Version



Published in 41 Seton Hall L. Rev. 201 (2011).[pp. 201-318]


A reassessment of United States' constitutional constraints on state-level foreign policy is sorely needed. State engagement in foreign policy was rarely significant until the 1960s. Since that time, state involvement has rapidly expanded in both sheer magnitude and the types of activities undertaken. The most prominent and problematic among these state and local activities in the past fifty-plus years has been three waves of state and local sanction initiatives targeting countries ruled by regimes with repugnant human rights policies. In the mid-1980s, over half of the states and at least 100 localities adopted sanctions legislation against South Africa, most often in the form of divestment requirements for state or city pension funds, procurement restrictions applicable to companies active in South Africa, or both. In the late 1990s, many states and localities targeted Burma (officially known as the Union of Myanmar), a country ruled by an undemocratic military regime with a repugnant human rights record that has included the killing of as many as several thousand pro-democracy demonstrators. More recently, states and localities have targeted the Sudanese government for its participation in the genocide in the Darfur region of the country. Divestment requirements and procurement sanctions continue to be tools of choice for states and localities seeking to use their substantial market leverage to change the behavior of these foreign governments. Unless halted through the faithful application of constitutional constraints by state and local officials, globalization and technological developments that increase access to and the exchange of information concerning conditions and policies in foreign countries will likely facilitate the trend of increased state and local involvement in foreign affairs.

Constraints on state-level foreign policy flow from the Supremacy Clause (in the form of the preemption doctrine), the Foreign Commerce Clause (in the form of the dormant Foreign Commerce Clause), and the amalgam of clauses allocating foreign affairs powers to federal actors and denying them to the states (in the form of the dormant foreign affairs doctrine). In 1968, the Supreme Court in Zschernig v. Miller for the first time relied upon the dormant foreign affairs doctrine to invalidate a state law in an as-applied challenge. This doctrine prohibits certain state foreign policy actions even in instances in which such state actions are not preempted by affirmative acts of the federal government (i.e., where the foreign policy powers of the federal government lie dormant or unutilized). The dormant foreign affairs doctrine is rooted in an exclusive federal government foreign affairs power.6 By definition, if a power is exclusive to the federal government, then states are denied such power irrespective of whether the federal government has utilized its power. The Court has declared the foreign relations power to be exclusive to the federal government since the early 1800s, and a multi-modal interpretation of the Constitution supports a significant degree of federal exclusivity over foreign affairs.

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