If the foreign relations power is truly an exclusive federal power, with no role for the states, a logical consequence, the Supreme Court has held, is that some state laws impinging on foreign relations are invalid even in the absence of a relevant federal policy. There is, in effect, a “dormant” foreign relations power. The scope of this power remains undefined, however, and its constitutional basis is debated by scholars.

The exclusive nature of the federal foreign relations power has long been asserted by the Supreme Court. In 1840, for example, the Court declared that “it was one of the main objects of the constitution to make us, so far as regarded our foreign relations, one people, and one nation; and to cut off all communications between foreign governments, and the several state authorities.” 1 A hundred years later the Court remained emphatic about federal exclusivity. “No State can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the States; it is vested in the national government exclusively. It need not be so exercised as to conform to state laws or state policies, whether they be expressed in constitutions, statutes, or judicial decrees. And the policies of the States become wholly irrelevant to judicial inquiry when the United States, acting within its constitutional sphere, seeks enforcement of its foreign policy in the courts.” 2

It was not until 1968, however, that the Court applied the general principle to invalidate a state law for impinging on the Nation’s foreign policy interests in the absence of an established federal policy. In Zschernig v. Miller3 the Court invalidated an Oregon escheat law that operated to prevent inheritance by citizens of Communist countries. The law conditioned inheritance by nonresident aliens on a showing that U.S. citizens would be allowed to inherit estates in the alien’s country, and that the alien heir would be allowed to receive payments from the Oregon estate “without confiscation.” 4 Although a Justice Department amicus brief asserted that application of the Oregon law in this one case would not cause any “undu[e] interfer[ence] with the United States’ conduct of foreign relations,” the Court saw a “persistent and subtle” effect on international relations stemming from the “notorious” practice of state probate courts in denying payments to persons from Communist countries.5 Regulation of descent and distribution of estates is an area traditionally regulated by states, but such “state regulations must give way if they impair the effective exercise of the Nation’s foreign policy.” If there are to be travel, probate, or other restraints on citizens of Communist countries, the Court concluded, such restraints “must be provided by the Federal Government.” 6

Zschernig lay dormant for some time, and, although it has been addressed recently by the Court, it remains the only holding in which the Court has applied a dormant foreign relations power to strike down state law. There was renewed academic interest in Zschernig in the 1990s, as some state and local governments sought ways to express dissatisfaction with human rights policies of foreign governments or to curtail trade with out-of-favor countries.7 In 1999, the Court struck down Massachusetts’s Burma sanctions law on the basis of statutory preemption, and declined to address the appeals court’s alternative holding applying Zschernig.8 Similarly, in 2003, the Court held that California’s Holocaust Victim Insurance Relief Act was preempted as interfering with federal foreign policy reflected in executive agreements, and, although the Court discussed Zschernig at some length, it saw no need to resolve issues relating to its scope.9

Dictum in Garamendi recognizes some of the questions that can be raised about Zschernig. The Zschernig Court did not identify what language in the Constitution mandates preemption, and commentators have observed that a respectable argument can be made that the Constitution does not require a general foreign affairs preemption not tied to the Supremacy Clause, and broader than and independent of the Constitution’s specific prohibitions10 and grants of power.11 The Garamendi Court raised “a fair question whether respect for the executive foreign relations power requires a categorical choice between the contrasting theories of field and conflict preemption evident in the Zschernig opinions.” Instead, Justice David Souter suggested for the Court, field preemption may be appropriate if a state legislates “simply to take a position on a matter of foreign policy with no serious claim to be addressing a traditional state responsibility,” and conflict preemption may be appropriate if a state legislates within an area of traditional responsibility, “but in a way that affects foreign relations.” 12 We must await further litigation to see whether the Court employs this distinction.13

Footnotes

1

Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 575–76 (1840). See also United States v. Belmont, 301 U.S. 324, 331 (1937) ( “The external powers of the United States are to be exercised without regard to state laws or policies. . . . [I]n respect of our foreign relations generally, state lines disappear” ); The Chinese Exclusion Case, 130 U.S. 581, 606 (1889) ( “For local interests the several States of the Union exist; but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power” ); Hines v. Davidowitz, 312 U.S. 52, 63 (1941) ( “Our system of government . . . requires that federal power in the field affecting foreign relations be left entirely free from local interference” ).

2

United States v. Pink, 315 U.S. 203, 233–34 (1942). Chief Justice Harlan Stone and Justice Owen Roberts dissented.

3

389 U.S. 429 (1968).

4

In Clark v. Allen, 331 U.S. 503 (1947), the Court had upheld a simple reciprocity requirement that did not have the additional requirement relating to confiscation.

5

389 U.S. at 440.

6

Id. at 440, 441.

7

See, e.g., Michael D. Ramsey, The Power of the States in Foreign Affairs: The Original Understanding of Foreign Policy Federalism, 75 Notre Dame L. Rev. 341 (1999); Carlos Manuel Vazquez, Whither Zschernig?, 46 Vill. L. Rev. 1259 (2001); Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 Va. L. Rev. 1617 (1997); Peter J. Spiro, Foreign Relations Federalism, 70 U. Colo. L. Rev. 1223 (1999). See also Louis Henkin, Foreign Affairs and the Constitution 149–69 (2d ed. 1996).

8

Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 374 n.8 (2000). For the appeals court’s application of Zschernig, see Nat’l Foreign Trade Council v. Natsios, 181 F.3d 38, 49–61 (1st Cir. 1999).

9

Am. Ins. Ass’n v. Garamendi, 539 U.S. at 419 & n.11 (2003).

10

It is contended, for example, that Article I, § 10’s specific prohibitions against states engaging in war, making treaties, keeping troops in peacetime, and issuing letters of marque and reprisal would have been unnecessary if a more general, dormant foreign relations power had been intended. Similarly, there would have been no need to declare treaties to be the supreme law of the land if a more generalized foreign affairs preemptive power existed outside of the Supremacy Clause.

11

Arguably, part of the “executive power” vested in the President by Art. II, § 1 is a power to conduct foreign relations.

12

539 U.S. at 419 n.11.

13

Justice Ruth Bader Ginsburg’s dissent in Garamendi, joined by the other three Justices, suggested limiting Zschernig in a manner generally consistent with Justice David Souter’s distinction. Zschernig preemption, Justice Ginsburg asserted, “resonates most audibly when a state action ‘reflects a state policy critical of foreign governments and involve[s] sitting in judgment on them.’” 539 U.S. at 439 (quoting Henkin, supra note 7, at 164). But Justice Ginsburg also voiced more general misgivings about judges’ becoming “the expositors of the Nation’s foreign policy.” Id. at 442. In this context, see Goldsmith, supra, at 1631, describing Zschernig preemption as “a form of the federal common law of foreign relations.”