UUnniivveerrssiittyy ooff CChhiiccaaggoo LLaaww SScchhooooll CChhiiccaaggoo UUnnbboouunndd Journal Articles Faculty Scholarship 1997 FFeeddeerraall CCoouurrttss,, FFoorreeiiggnn AAffffaaiirrss,, aanndd FFeeddeerraalliissmm Jack L. Goldsmith Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons RReeccoommmmeennddeedd CCiittaattiioonn Jack L. Goldsmith, "Federal Courts, Foreign Affairs, and Federalism," 83 Virginia Law Review 1617 (1997). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. VIRGINIA LAW REVIEW VOLUME 83 NOVEMBER 1997 NUMBER 8 ARTICLE FEDERAL COURTS, FOREIGN AFFAIRS, AND FEDERALISM Jack L. Goldsmith* INTRODUCTION ........................................................................... 1618 I. THE FEDERAL COMMON LAW OF FOREIGN RELATIONS ............................................................. 1625 A . Or igins ........................................................................... 1625 B .L ogic .................................1.6.3.0........................................... C.S cope .................................1.6.3.2.......................................... 1. Private InternationalL aw ....................................... 1634 2. Dormant Foreign Commerce Clause. .................... 1637 3. State ForeignR elations Activities ........................... 1637 4. Customary InternationalL aw ................................ 1639 II. THE LESSON OF HISTORY ..................................................... 1641 A .E vidence ......................................................................... 1643 B. Significance. ................................................................... 1659 III. A REVISIONIST VIEW ........................................................... 1664 A. The FunctionalC ase for the Federal Common Law of Foreign Relations ........................... 1665 B. The Waning of the Distinctionb etween Domestic and ForeignA ffairs ..................................... 1670 Associate Professor of Law, University of Chicago. Thanks to Curtis Bradley, Bradford Clark, Richard Craswell, David Currie, Barry Cushman, William Fletcher, Barry Friedman, Elizabeth Garrett, Sandra Glover, John Harrison, John Jeffries, Dan Kahan, Larry Kramer, Daryl Levinson, Dan Meltzer, Gerald Neuman, David Strauss, Cass Sunstein, G.E. White, and John Yoo for comments on an earlier draft, and to Michelle DeBortoli, Kristoff Hess, and Vicky Litz for excellent research assistance. 1617 HeinOnline -- 83 Va. L. Rev. 1617 1997 1618 Virginia Law Review [Vol. 83:1617 C. The Neglected Perspective of Separationo f Powers ................................................... 1680 1. The ExaggeratedN eed for the Federal Common Law of Foreign Relations. ..................... 1681 a. Congress. ............................................................. 1681 b. The Executive Branch ....................................... 1684 c. Residual Concerns ................ *.. ......................... 1687 2. The Overlooked Costs of the Federal Common Law of ForeignR elations ...................... 1690 IV. ASSESSMENT AND OBJECTIONS .......................................... 1698 A. Is the Supreme Court Moving in This Di rection?. ............................................................ 1698 B .O bjections. ..................................................................... 1705 1. Intermediate Solutions ............................................. 1705 a. A Narrower,M ore CategoricalA pproach ...... 1705 b. Executive Suggestion ......................................... 1708 c. Mo tive Review .................................................... 1711 2. Indeterminacy of Interpretation.. ............................ 1712 CONCLUSION .............................................................................. 1713 INTRODUCTION F OREIGN affairs law appears immune from the recent spate of revisionist thinking about federalism in the United States. Professor Louis Henkin states the orthodox view well: Federalism... was largely irrelevant to the conduct of foreign affairs even before it began to be a wasting force in U.S. life generally .... Revolution in the national mood in the 1990s has tended to seek to take from the federal government and give to the states, but this trend is not likely to have impact on foreign affairs. At the end of the twentieth century as at the end of the eighteenth, as regards U.S. foreign relations, the states "do not exist." This Article challenges this understanding of the relationship between federalism and foreign affairs in several respects. 'Louis Henkin, Foreign Affairs and the United States Constitution 149-50 (2d ed. 1996). HeinOnline -- 83 Va. L. Rev. 1618 1997 1997] FederalC ourts, ForeignA ffairs, and Federalism 1619 In analyzing the orthodox view, it is important to distinguish between plenary federal power and exclusive federal power. The Constitution establishes plenary federal power by four means. Article I, Section 10 bars states from performing certain foreign affairs functions, such as treaty-making.2 Article I, Section 8 and Article II broadly authorize the federal political branches to conduct foreign relations through the enactment of federal stat- utes, treaties, and executive agreements.' Article VI establishes that these federal enactments are supreme over state law. And Article III extends the federal judicial power to cases involving these federal enactments and to other transnational controver- sies.' Taken together, these provisions give the federal political Article I, Section 10 states: 2 No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal .... No State shall, without the Consent of the Con- gress, lay any Imposts or Duties on Imports or Exports, except what may be ab- solutely necessary for executing it's [sic] inspection Laws .... No State shall lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact... with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. U.S. Const. art. I, § 10. 3E.g., U.S. Const. art. I, § 8, cl. 3 (Congress authorized to "regulate Commerce with foreign Nations"); id. art. I, § 8, cl. 4 (Congress authorized to "establish an uniform Rule of Naturalization"); id. art. I, § 8, cl. 10 (Congress authorized to "define and punish ... Offences against the Law of Nations"); id. art. I, § 8, cl. 11 (Congress authorized to "declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water"); id. art. I, § 8, cl. 14 (Congress authorized to "make Rules for the Government and Regulation of the land and naval Forces"); id. art. I, § 8, cl. 18 (Necessary and Proper Clause); id. art. II, § 2, cl. 2 (President authorized to make treaties with advice and consent of two-thirds of senators present). The Presi- dent's authority to make executive agreements derives sometimes from congressional delegation and sometimes from his own foreign relations powers, including his power as commander-in-chief and his power to receive ambassadors. Id. art. II, §§ 2, 3; see also Henkin, supra note 1, at 54-56 (discussing presidential lawmaking). 4 U.S. Const. art. VI, cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land .... "). Article III states, in relevant part: [The judicial Power shall extend to] all Cases... arising under this Constitution, the Laws of the United States, and Treaties made ... under their Authority;- to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;-to Controversies ... between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. U.S. Const. art. III, § 2, cl. 1. HeinOnline -- 83 Va. L. Rev. 1619 1997 1620 VirginiaL aw Review [Vol. 83:1617 branches comprehensive power to conduct foreign relations with- out interference or limitation by the states.6 This Article does not question this understanding. It does not argue for federalism or enumerated power limits on the federal political branches' authority to enact foreign relations law. In- stead, it challenges the conventional wisdom concerning the al- location of state and federal power in the absence of such a con- trolling federal foreign relations enactment. Sometimes, states act in ways that adversely affect U.S. foreign relations but that do not violate any provision of the Constitution and that are not preempted by federal statute or treaty. For example, states exe- cute aliens, tax multinational corporations, declare themselves refugee sanctuaries, and violate customary international law. At other times, an issue emerges in international litigation that ap- pears to implicate U.S. foreign relations but that is not governed by an enacted federal law. A classic example is the validity for domestic purposes of a foreign act of state; other examples in- clude forum non conveniens and the enforceability of transna- tional forum selection clauses. These and related issues focus attention on the role of federal courts in conducting U.S. foreign relations. They raise an important question of judicial federal- ism: Should federal courts presented with such issues apply state law, or should they instead develop and apply a judge-made fed- eral common law of foreign relations? The conventional view is that courts should develop and ap- ply a federal common law of foreign relations. The justification for this view is essentially as follows. The federal government has the exclusive power to conduct foreign relations free from interference by the states. This power is presumptively lodged in the federal political branches. But as the examples above sug- gest, due to ignorance or inertia the federal political branches will sometimes fail to exercise this power to preempt state activ- ity that adversely affects U.S. foreign relations interests. In such circumstances, the structure of the Constitution establishes a self- executing presumption-analogous to the dormant Commerce Clause-that such activity is governed by federal law. Federal United States v. Belmont, 301 U.S. 324, 331 (1937); Missouri v. Holland, 252 6See U.S. 416,432-35 (1920). HeinOnline -- 83 Va. L. Rev. 1620 1997 1997] Federal Courts, ForeignA ffairs, and Federalism 1621 courts charged with enforcing structural constitutional guarantees must invalidate state laws or acts that impermissibly impinge upon the unique federal foreign relations interest and, when nec- essary, replace them with judge-made rules. Otherwise, parochial state acts could threaten the foreign relations interests, and per- haps the national security, of the entire nation-a situation the Constitution is plainly designed to avoid. In foreign affairs, the nation must speak with one voice, not fifty. The orthodox view concludes that judge-made federal foreign relations law consti- tutes that voice until the federal political branches say otherwise. The federal common law of foreign relations has been rarely invoked in traditional foreign relations contexts such as diplo- matic relations or the regulation of war, because such matters are largely, if not exclusively, governed by enacted federal law. In- stead, the doctrine's primary relevance lies in other areas.7 One such area is private international law. Courts have federalized not only quasi-procedural doctrines like act of state' and the rec- ognition of foreign judgments,9 but also more substantive areas like tort, contract, and property. For example, the United States Court of Appeals for the Fifth Circuit recently held that a tort suit by Peruvian citizens against American and foreign corpora- tions for environmental damage in Peru "implicat[ed] important foreign policy concerns" and thus was governed by the federal common law of foreign relations." Courts have also employed the federal common law of foreign relations under the guise of the "one voice" test that supplements the dormant foreign Com- merce Clause's traditional antidiscrimination analysis.1' They have also used it to preempt state foreign relations activity like reciprocity inheritance statutes.2 Finally, the federal common law of foreign relations is the primary basis for the widely held view that customary international law has the status of federal com- 7S ee infra Section I.C. ' See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,424-27 (1964). ,See, e.g., John Sanderson & Co. (Wool) Pty. Ltd. v. Ludlow Jute Co., 569 F.2d 696, 697 (1st Cir. 1978). 'Torres v. Southern Peru Copper Corp., 113 F.3d 540, 543 (5th Cir. 1997). "See, e.g., Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434,448-51 (1979). ,2See, e.g., Zschernig v. Miller, 389 U.S. 429 (1968). HeinOnline -- 83 Va. L. Rev. 1621 1997 1622 Virginia Law Review [Vol. 83:1617 mon law.'3 By this account, the post-World War II customary international law of human rights-which prohibits, for exam- ple, executions of juveniles and prolonged arbitrary detentions- trumps inconsistent and otherwise valid state law under the Su- premacy Clause." This Article argues that the federal common law of foreign re- lations as currently practiced by courts and understood by schol- ars lacks justification. The argument begins by demonstrating that, contrary to the suggestions of many courts and scholars, there was no judicially enforceable, self-executing federal for- eign relations power for the first 175 years of our constitutional history." After clearing away specious historical claims, the Ar- ticle focuses on more plausible functional arguments made in support of the modem practice.'6 These functional arguments make some sense under a traditional conception of foreign rela- tions as relations among national governments of sovereign na- tion-states, in which the central concerns are military security and diplomacy. The problem is that the traditional conception of foreign affairs has changed to include matters formerly viewed as purely domestic issues, and the federal common law of foreign relations is concerned almost exclusively with these new foreign relations issues. But as the distinction between for- eign and domestic affairs has waned, the criterion of "foreign relations" has lost whatever reliability it might have had as an indicator of matters that should presumptively be governed by federal law.'7 Moreover, it is no longer true, if it ever was, that the national political branches prefer federal regulation of all (or even most) issues that can be characterized as involving for- eign relations. These factors make it more difficult for federal courts to ascertain the need for and content of federal foreign relations law. They also render the development of such law by federal courts normatively problematic in many contexts. For as the category of foreign relations comes to include matters tradi- ,"S ee, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 886-87 (2d Cir. 1980). '4See, e.g., Lea Brilmayer, Federalism, State Authority, and the Preemptive Power of International Law, 1994 Sup. Ct. Rev. 295,322-26, 342. "See infra Part II. ,6S ee infra Section III.A. "See infra Section III.B. HeinOnline -- 83 Va. L. Rev. 1622 1997 1997] FederalC ourts, ForeignA ffairs, and Federalism 1623 tionally regulated by states in which the states have a genuine interest, prevailing understandings of American federalism re- quire that the decision to regulate these matters by federal law be made through political deliberations in which the states have a voice. Functional arguments for the federal common law of foreign relations are further undermined by separation of powers and institutional competence concerns that are usually ignored in this context.8 Courts and scholars have so strongly identified for- eign relations with exclusive federal power that they have failed to consider how the distribution of this federal power among federal political and federal judicial actors affects its exercise. On both institutional competence and substantive legitimacy grounds, the federal political branches are the presumptive mak- ers of nonconstitutional federal law, especially foreign relations law. The federal common law of foreign relations is an excep- tion to this presumption that is justified as a way to prevent states from intruding on federal political branch prerogatives in foreign relations. The doctrine thus assumes that the federal political branches are incapable of monitoring and redressing aberrant state foreign relations activity at an acceptable cost, and that the costs of state foreign relations activity in the face of political branch silence are greater than the costs associated with the federal common law of foreign relations. Both assumptions are wrong. The federal political branches are much better at redressing state intrusions on federal foreign relations prerogatives, and the federal courts much worse, than is commonly thought. Thus, there is little need for a federal common law of foreign relations, and good reason to believe that federal courts do not develop this law in a fashion that achieves its stated goals. Moreover, structural considerations suggest that while the political branches are likely to intervene to re- dress inappropriate state activity in foreign relations, the normal presumptions of legislative inertia apply when federal judges in- appropriately exercise federal common law of foreign relations powers to preempt state law. This asymmetry in likely political branch action results in an arrogation of federal lawmaking 18S ee infra Section III.C. HeinOnline -- 83 Va. L. Rev. 1623 1997 1624 Virginia Law Review [Vol. 83:1617 power by federal courts at the expense of both the states and the federal political branches. Building on these and related points, this Article makes the case for the elimination of the federal common law of foreign re- lations as currently understood. It explains how this conclusion finds substantial support in recent Supreme Court decisions.19 It then defends the conclusion against three other possibilities: a narrower rule-based approach to the federal common law of for- eign relations; federal judicial lawmaking at the behest of the executive branch; and judicial review of state acts on the basis of an impermissible purpose to influence foreign affairs.' The analysis warrants three qualifications at the outset. The first concerns the meaning of "federal common law of foreign relations." I use this phrase and its synonyms to mean judicial foreign relations lawmaking that occurs when there is political branch inaction. I intend to distinguish this situation from one in which a court interprets vague terms or gaps in a treaty or statute. At the margins, this distinction will obviously be hard to maintain. Nonetheless, in every instance of judge-made for- eign relations law under consideration here, there is no plausible statutory or treaty basis for judicial lawmaking, and the courts do not purport to base the law they make on any such source. My analysis will focus on this "pure" judge-made law,21 but in the end I will consider the implications of the analysis for the borderline cases.' The second qualification concerns my focus on federal courts. Some of the issues under consideration here will arise in state courts. To the extent that such cases are governed by federal common law, state courts will have a duty to develop and apply such law. Nonetheless, because the legitimacy of state court de- velopment of federal law in this context derives wholly from the legitimacy of the practice in federal courts, I will focus on fed- eral courts. But the arguments apply with at least as much force 19 See infra Section IV.A. 20S ee infra Section IV.B. Cf. Thomas W. Merrill, The Judicial Prerogative, 12 Pace L. Rev. 327, 328 (1992) 21 (distinguishing judge-made prerogative law from judicial lawmaking under the authority of enacted law). 2 See infra Section IV.B.2. HeinOnline -- 83 Va. L. Rev. 1624 1997 1997] Federal Courts, ForeignA ffairs, and Federalism 1625 to state court development of the federal common law of for- eign relations. Finally, my analysis is limited to the judicial invalidation of state law based on the state law's connection to foreign relations. Some state acts potentially governed by the federal common law of foreign relations will involve discrimination against a foreign nation or person. Such acts thus might implicate antidiscrimina- tion provisions of the Constitution like the Equal Protection Clause or the antidiscrimination component of the dormant for- eign Commerce Clause. This Article does not argue against the validity of these antidiscrimination doctrines. Instead, it argues against an additional level of federal judicial regulation, via fed- eral common law, based on the foreign affairs quotient of state acts that survive such antidiscrimination scrutiny. I. THE FEDERAL COMMON LAW OF FOREIGN RELATIONS This Part explains the origins and logic of the federal common law of foreign relations. It then examines the various and in- creasingly prevalent contexts in which courts have applied the doctrine. A. Origins The federal common law of foreign relations was born in the 1960s but can best be understood against the background of the United States Supreme Court's 1938 decision in Erie Railroad Co. v. Tompkins.' Before Erie, federal courts applied a "general common law" most famously associated with Swift v. Tyson.24 The federal judiciary "resorted to [the general common law] to provide the rules of decision in particular cases without insisting that the law be attached to any particular sovereign."' Federal courts thus applied these rules of decision without apparent authorization from Congress or the Constitution, and without being bound by state court decisions. In Erie, the Court de- clared this practice by federal courts to be an "'unconstitutional - 304 U.S. 64 (1938). 2441 U.S. (16 Pet.) 1 (1842). 21W illiam A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1517 (1984). HeinOnline -- 83 Va. L. Rev. 1625 1997