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Published in 27 CAN.-U.S. L.J. 35 (2001). Published by Case Western Reserve University School of Law


I would like to take a look at how federalism affects foreign relations law in the United States. About ten years ago some scholars began questioning the foreign affairs orthodoxy, what is sometimes referred to as foreign affairs exceptionalism, in U.S. constitutional law.' They came to be known as the revisionist scholars. Three features characterize foreign affairs exceptionalism. The first feature is Executive Branch preeminence in foreign affairs, in contrast to congressional control. The second feature is judicial law making in foreign affairs. The third feature is the irrelevance of federalism. I am only going to focus in on this third feature, the irrelevance of federalism, and the extent to which this feature remains true, or should remain true, today. The relationship of federalism to U.S. foreign affairs has two aspects to it. First, what limits does the U.S. Constitution place on state involvement in foreign affairs? Second, what limits does the Constitution place on the Federal Government's ability to use its international agreement making powers to impinge on state regulatory authority?

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