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The Role of States and Cities in Foreign Relations

Published online by Cambridge University Press:  27 February 2017

Richard B. Bilder
Richard B. Bilder*
Affiliation:
University of Wisconsin-Madison
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Extract

A major purpose of the Constitution was to place control of foreign relations firmly in the hands of the national Government. In 1788 James Madison wrote in The Federalist: “If we are to be one nation in any respect, it clearly ought to be in respect to other nations.” Yet a recent article, 200 years later, reports approvingly that “more than 1000 U.S. state and local governments of all political stripes are participating in foreign affairs, and their numbers are expanding.” Criticizing this development, another recent article comments: “The national interest demands that local interference in foreign and defense policy be curtailed before the federal government finds itself hamstrung by hundreds of would-be secretaries of state touting their own parochial agendas. … Foreign policy must be made in Washington and not in the citizens’ backyards.” My intent here is briefly to describe the current situation, and to indicate some of the legal and policy factors relevant to assessing the propriety of state and local government involvement in foreign affairs.

Type
Distribution of Constitutional Authority
Information
American Journal of International Law , Volume 83 , Issue 4 , October 1989 , pp. 821 - 831
Copyright
Copyright © American Society of International Law 1989

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References

1 See Holmes v. Jennison, 39 U.S. (14 Pet.) 649, 665–66 (1840) (Taney, C.J.). See also L. Henkin, Foreign Affairs and the Constitution 227 (1972).

2 The Federalist No. 42, at 279 (J. Madison) (J. Cooke ed. 1961).

3 Shuman, Dateline Main Street: Local Foreign Policies, Foreign Pol’y, No. 65, Winter 1986–87, at 154.

4 Spiro, Taking Foreign Policy Away from the Feds, Wash. Q., No. 1, 1988, at 191, 202–03. See also, e.g., Pasley, Twisted Sisters: Foreign Policy for Fun and Profit, New Republic, June 22, 1987, at 14 (“Once left to foreign service officers and an elite corps of millionaire patricians and Ivy League policy groups, foreign policy is now a game that everyone wants to play”).

5 The information that follows in this paragraph is correct as of January 1989. It is based on information supplied by SANE/FREEZE, Washington, D.C.; Sister Cities International, Alexandria, Va.; National Association of State Development Agencies, Washington, D.C.; National League of Cities, Washington, D.C.; Chicago Religious Task Force on Central America; American Committee on Africa, New York, N.Y.; and Investor Responsibility Research Center, Washington, D.C.

For useful coverage of recent developments, see the Bulletin of Municipal Foreign Policy, published quarterly since 1987 by the Local Elected Officials Project, Center for Innovative Diplomacy, Irvine, Cal. For general discussions, see, e.g., Kincaid, Rain Clouds Over Municipal Diplomacy: Dimensions and Possible Sources of Negative Public Opinion, in The New International Cities and the North American Experience (E. H. Fry ed. 1989); Shuman, supra note 3; Spiro, supra note 4; Weigel, Calhoun’s Heirs, or the Balkanization of American Foreign Policy, American Purpose, No. 6, 1987, at 41, reprinted [with a response by Shuman] in Bull. Mun. Foreign Pol’y, No. 1, Winter 1987–88, at 7; Brock, Municipal Hue and Cry Makes Foreign Policy Waves, Insight Mag., Apr. 6, 1987, at 18; Shuman, Spin’s Impossible Quest Against Democracy: A Response, Bull. Mun. Foreign Pol’y, No. 2, Spring 1988, at 7; and Hamilton, California Has a Foreign Policy?, Cal. J., August 1987, at 383. For a selection of relevant legal and other materials, see T. Franck & M. Glennon, Foreign Relations and National Security Law 686–722 (1987).

For earlier discussions, see, e.g., Bilder, East-West Trade Boycotts: A Study in Private, Labor Union, State and Local Interference with Foreign Policy, 118 U. Pa. L. Rev. 841, 882–84, 909–20 (1970); see also, e.g., Note, Ordinances Restricting the Sale of “Communist Goods,” 65 Colum. L. Rev. 310 (1965); Comment, California’s Buy-American Policy: Conflict with the GATT and Constitution, 17 Stan. L. Rev. 119 (1964); Note, Foreign Commerce and State Power: The Constitutionality of State Buy-American Statutes, 12 Cornell Int’l L.J. 109 (1979).

6 See generally, e.g., Note, Federal Preemption and the South African Sanctions: A Survival Guide for States and Cities, 10 Loy. L.A. Int’l & Comp. L.J. 693 (1988) [hereinafter Note, Federal Preemption]; Lewis, Dealing with South Africa: The Constitutionality of State and Local Divestment Legislation, 61 Tul. L. Rev. 469 (1987); Note, State and Local Anti-South Africa Action as an Intrusion upon the Federal Power in Foreign Affairs, 72 Va. L. Rev. 813 (1986); Note, State and Municipal Governments React Against South African Apartheid: An Assessment of the Constitutionality of the Divestment Campaign, 54 U. Cin. L. Rev. 543 (1985); Note, The Constitutionality of State and Local Governments’ Response to Apartheid: Divestment Legislation, 13 Fordham Urb. L.J. 763 (1985). This type of initiative is spreading to issues other than apartheid, such as alleged anti–Roman Catholic discrimination in Northern Ireland.

7 See, e.g., Tayyari v. New Mex. State Univ., 495 F.Supp. 1365 (D.N.M. 1980) (university Regents’ action to deny admission to students whose home governments held or permitted holding U.S. citizens as hostages); Note, Acts by State Governments Affecting Foreign Relations—Decision of New York and New Jersey Governors to deny Soviet airplane clearance to land, Sept. 1983, 25 Harv. Int’l L.J. 200 (1984); and Note, The Town That Wouldn’t Die: The Odd Chronicle of Glen Cove Versus the Russians, in T. Franck & M. Glennon, supra note 5, at 711.

In a related development involving alleged local intrusion into federal control over national defense, over 160 cities and counties have declared themselves “nuclear-free zones.” See generally Stutter, When Citizens Say “No” to Nukes, Kiwanis Mag., November/December 1987, at 30; Martin, The Legality of Nuclear Free Zones, 55 U. Chi. L. Rev. 965 (1988); Borchers & Dauer, Taming the New Breed of Nuclear Free Zone Ordinances: Statutory and Constitutional Infirmities in Local Procurement Ordinances Blacklisting the Producers of Nuclear Weapons Components, 40 Hastings L.J. 87 (1988).

8 22 U.S.C.A. §§5000–5116 (West Supp. 1989).

9 H.R. Res. 548, 99th Cong., 2d Sess., 132 Cong. Rec. H6758 (daily ed. Sept. 16, 1986). For further discussion, see Note, Federal Preemption, supra note 6.

10 See, e.g.. New Abolitionist: Newsletter of Nuclear Free America, May/June 1987, at 3.

11 See Regents of the Univ. of Mich. v. State, No. 83–50309–CZ (Cir. Ct. Ingham County, Aug. 21, 1985) (upholding constitutionality under both U.S. and Michigan constitutions of Michigan statute requiring divestment of the university’s funds from companies doing business with South Africa or USSR), rev’d on state constitutional grounds without addressing federal constitutional issue, 66 Mich. App. 314, 419 N.W.2d 773 (1988), appeal dismissed on stipulation of partus as moot, No. 82674(61) (Sup. Ct. Feb. 23, 1989); Springfield Rare Coin Galleries, Inc. v. Johnson, 115 111. 2d 221, 503 N.W.2d 300 (1986) (Illinois Supreme Court holding unconstitutional an Illinois statute that imposed discriminatory taxes on South African Krugerrands but exempted gold coins of United States and other nations); Board of Trustees v. Mayor of Baltimore, No. 86365065/CE–59858 (Cir. Ct. Balto., Md., July 17,1987) (upholding constitutionality of Baltimore City ordinance requiring divestment of city funds from banks or companies doing business in South Africa), aff’d, Nos. 95 and 104 (Md. Sept. 1, 1989).

For cases relating primarily to alleged intrusion into federal national defense concerns, see Fossella v. Dinkins, 66 N.Y.2d 162, 485 N.E.2d 1017, 495 N.Y.S.2d 352, aff’g, 494 N.Y.S.2d 878, 110 A.D.2d 227, aff’g, 494 N.Y.S.2d 1012, 130 Misc. 2d 52 (Sup. Ct. 1985); Arthur D. Little, Inc. v. Commissioner of Health & Hosp. of Cambridge, 395 Mass. 535, 481 N.E.2d 441 (1985).

12 See as to the following discussion L. Henkin, supra note 1 (to which this article is much indebted); Restatement (Third) of Foreign Relations Law of the United States § 1 Reporters’ Note 5 (1987) [hereinafter Restatement]; see also authorities cited supra notes 3, 4, 5, 6 and 11.

13 See, e.g., United States v. Pink, 315 U.S. 203, 233 (1942); Hines v. Davidowitz, 312 U.S. 52, 63 (1941); United States v. Belmont, 301 U.S. 324, 331 (1937); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936).

14 U.S. Const. Art. I, §10. See also, e.g., Restatement, supra note 12, §201 Reporters’ Note 9; and Rodgers, The Capacity of States of the Union to Conclude International Agreements: The Background and Some Recent Developments, 61 AJIL 1021 (1967). But cf. Holmes v. Jennison, 39 U.S. (14 Pet.) 649 (1840).

15 Curtiss-Wright, 299 U.S. at 316.

16 For a recent summary of current preemption doctrine, see generally California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 280–81 (1987).

17 U.S. Const. Art. I, §8, cl. 3. See generally, e.g., L. Henkin, supra note 1, at 234–37; Brown v. Maryland, 25 U.S. (12 Wheat.) 262 (1827); and Michelin Tire Corp. v. Wages, 423 U.S. 276 (1976).

18 See Wardair Canada, Inc. v. Florida Dep’t of Revenue, 477 U.S. 1 (1986); Reeves, Inc. v. Stake, 447 U.S. 429, 437–38 n.9 (1980); Japan Line Ltd. v. County of L.A., 441 U.S. 434, 451, 456 (1979); see also Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159, 184 (1983); Restatement, supra note 12, §1 Reporters’ Note 5.

19 Japan Line, 441 U.S. at 449 (quoting Michelin Tire, 423 U.S. at 285).

20 389 U.S. 429, reh’g denied, 390 U.S. 974 (1968).

21 389 U.S. at 432. For further discussion, see L. Henkin, supra note 1, at 238–44; see generally authorities cited supra notes 3, 6 and 7.

22 331 U.S. 503(1947).

23 Id. at 517.

24 Zschernig, 389 U.S. at 434–35.

25 Id. at 437.

26 Id. at 440.

27 Some later opinions have suggested that Zschernig can be narrowly interpreted as proscribing only state or local statutes or other measures or activities that involve detailed inquiry into the nature or operation of a foreign government and, in particular, judicial inquiries and decisions criticizing and “sitting in judgment” on foreign governments. See, e.g., L. Henkin, supra note 1, at 240; Shames v. Nebraska, 323 F.Supp. 1321, 1322 (D. Neb. 1971), aff’d, 408 U.S. 901 (1972); Goldstein v. Cox, 396 U.S. 471 (1970), dismissing appeal from 299 F.Supp. 1389 (S.D.N.Y. 1968); Gorun v. Fall, 287 F.Supp. 725 (D. Mont. 1968), aff’d, 393 U.S. 398 (1969); Bjarsch v. DiFalco, 314 F.Supp. 127 (S.D.N.Y. 1970); Mora v. Battin, 303 F.Supp. 660 (N.D. Ohio 1969); and In re Guirgin, 155 Mont. 18, 466 P.2d 83 (1970).

28 For state or lower court cases in which parties have invoked Zschernig as a basis for seeking to invalidate state or local laws, sometimes successfully and sometimes not, see, e.g., cases cited supra note 11; United States v. Glen Cove, 322 F.Supp. 149 (E.D.N.Y), off’d per curiam, 450 F.2d 884 (2d Cir. 1971); New York Times Co. v. City of N.Y. Comm’n on Human Rights, 79 Misc. 2d 1046, 362 N.Y.S.2d 321 (Sup. Ct. 1974), aff’d, 49 A.D.2d 851, 314 N.Y.S.2d 9 (1975), aff’d, 41 N.Y.2d 345, 393 N.Y.S.2d 312, 361 N.E.2d 963 (1977); Bethlehem Steel Corp. v. Board of Comm’rs, 276 Cal. App. 2d 221, 80 Cal. Rptr. 800 (1969); Columbus v. Miqdadi, 195 N.E.2d 923 (Mun. Ct. 1963).

29 See L. Henkin, supra note 1, at 476–77 n.51.

30 See id. at 244–45; Restatement, supra note 12, §1 Reporters’ Note 5.

31 Clark, 331 U.S. at 517.

32 Zschernig, 389 U.S. at 434. But cf. Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159, 194 (1983). See also De Canas v. Bica, 424 U.S. 351, 355–56 (1976).

33 See Restatement, supra note 12, §201 Reporters’ Note 9; see also L. Henkin, supra note 1, at 229–34; Rodgers, supra note 14.

34 See L. Henkin, supra note 1, at 241.

35 Cf., e.g., the congressional enactment of the Comprehensive Anti-Apartheid Act, supra note 8. For further discussion, see Note, Federal Preemption, supra note 6, at 695 nn. 15–16.

36 See generally M. Yudoff, When Government Speaks 42–44 (1983); see also Note, The Constitutionality of Municipal Advocacy in Statewide Referendum Campaigns, 93 Harv. L. Rev. 535 (1976).

Of course, even First Amendment protections may be limited to protect compelling national interests, including foreign relations interests. For further discussion, see, e.g., L. Henkin, supra note 1, at 254–55; Restatement, supra note 12, §1 Reporters’ Note 6; id. §721 comment d and Reporters’ Notes 1 and 4. See also United States v. Grace, 461 U.S. 171 (1983); Buckley v. Valeo, 424 U.S. 1 (1976); New York Times Co. v. United States, 403 U.S. 713 (1971); United States v. O’Brien, 391 U.S. 367 (1968); Bond v. Floyd, 385 U.S. 116, 135–36 (1966); Finzer v. Barry, 798 F.2d 1450 (D.C. Cir. 1986); Cispes v. FBI, 770 F.2d 468 (5th Cir. 1985); Frend v. United States, 100 F.2d 691 (D.C. Cir. 1938), cert, denied, 306 U.S. 640 (1939); Jewish Defense League, Inc. v. Washington, 347 F.Supp. 1300 (D.D.C. 1972).

37 A recent poll indicates that many citizens have serious reservations about state and local governments engaging in activities relating to foreign affairs and that most oppose city council resolutions on foreign policy issues. See Advisory Commission on Intergovernmental Relations, Changing Public Attitudes on Governments and Taxes: 1988, at 7–9, 35–37.

Whether municipal governments have authority to adopt initiatives, referendums and resolutions regarding foreign policy issues was raised in several cases during the Vietnam War. See, e.g., Farley v. Healey, 67 Cal. 2d 325, 431 P.2d 650, 62 Cal. Rptr. 26 (1967); State v. Board of Elections, 12 Ohio St. 2d 4, 230 N.E.2d 347 (1967); and Silberman v. Katz, 54 Misc. 2d 956, 283 N.Y.S.2d 895 (Sup. Ct.), aff’d without opinion, 28 A.D.2d 992, 284 N.Y.S.2d 836 (1967). See also Conrad, Direct City Legislation on Foreign Policy Matters, 51 Marq. L. Rev. 426 (1968).

38 L. Henkin, supra note 1, at 240–41.

39 Id.

40 As indicated in note 11 supra, the two state court decisions on this question thus far, the decision of the Circuit Court of Ingham County, Michigan, in Regents of the University of Michigan v. State, and the recent extensive opinion of the Maryland Court of Appeals in Board of Trustees v. Mayor of Baltimore, have both upheld the constitutionality of such divestment legislation. On the other hand, commentators are split on this question. See articles cited supra note 6.