STATE FOREIGN POLICIES AFTER THE BURMA CASE

By JACK GOLDSMITH
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The Supreme Court recently invalidated a Massachusetts statute that limited state purchases from companies doing business with Burma (also known as Myanmar), a nation with a notorious record of human rights abuses. The Court's decision was heralded in many quarters as the death knell for state foreign relations activities. The president of the trade group that filed the lawsuit said the ruling would "help put an end to state and local efforts to make foreign policy." Many commentators expressed similar sentiments.

These views are wrong. The Court decided only that Congress's own Burma sanctions preempted the Massachusetts sanctions. It carefully avoided any suggestion that state foreign affairs activities are invalid in the absence of some preemptive action by Congress. The decision therefore has no implications for state foreign relations activities beyond state laws regulating transactions with Burma.

It may seem incongruous that states would enjoy any role in foreign affairs. The Constitution, after all, was designed to ensure that the federal government had sufficient authority to check state foreign relations activities. But except for a few central foreign relations powers -- such as declaring war and making treaties -- the Constitution does not extinguish state authority to influence foreign affairs. Instead, it gives the President and Congress broad powers to decide when state acts harm the national foreign relations interest and thus must be preempted. Under this constitutional scheme, state laws that implicate foreign relations have been traditionally viewed as valid in the absence of a controlling federal statute or treaty.

It is true that state laws have greater impact on international relations today than in the past. Globalization has blurred the distinction between domestic and foreign affairs, and international law now regulates matters once governed by domestic law alone. Competitive global markets require state officials to be active in international economic and political affairs. Some state criminal laws, especially state death penalty laws, implicate international law and provoke foreign policy controversy. Communication advances have facilitated unprecedented links between local communities in the United States and communities abroad -- links that sometimes create international tensions. The Elian Gonzalez incident illustrated how state family law principles can implicate foreign relations. The application of state tort and contract law in international cases has provoked foreign complaints as well.

These state laws and activities are not, as many contend, inherently illegitimate simply because of their international consequences. The goal of our Constitution was to create a more perfect domestic order. The allocation of authority between national and local government is no less important to this end than the establishment of a national government that can successfully conduct foreign relations. Foreign relations and federalism are competing values for the federal political branches to weigh when determining what the national interest requires. And the political branches often prefer local autonomy over international harmony. In contexts ranging from tax to trade to human rights to judicial procedure, they have preserved state prerogatives in the face of international regulation and foreign outcry.

Ironically, the Massachusetts Burma statute illustrates the wisdom of the Framers' system of allowing states to act in foreign affairs until preempted by Congress. In disassociating itself from Burma's oppressive regime, Massachusetts put the Burma issue on the federal political radar screen and induced the federal government to act. In the absence of a residual role for states in foreign affairs, the federal government might never have responded to the situation in Burma. So even in foreign relations contexts, states can serve as useful "laboratories of experimentation," to borrow a phrase often used to defend our system of sharing power between national and state governments.

The Supreme Court's decision in the Burma case leaves the difficult balance of federalism and foreign relations in the hands of elected federal officials who are both politically accountable and expert in foreign affairs. In this regard, the Court's decision is perhaps less significant for its statutory preemption analysis than for the analysis it declined to embrace. The lower courts had invalidated the Massachusetts law on the basis of an independent judicial determination that the Massachusetts law adversely affected U.S. foreign relations. The Supreme Court had no need to exercise this "judicial foreign affairs preemption" doctrine in light of its narrower statutory preemption holding. But the Court's pointed emphasis that the policy it was applying flowed from a federal statute suggests that the Court was apprehensive about invalidating the statute under its own authority.

And with good reason. In the absence of a federal legislative policy to guide them, courts are ill-suited to make the tradeoff between the competing concerns of local autonomy and international relations, for they lack both democratic accountability and foreign policy expertise. Many believe that federal court scrutiny of state foreign relations activities is less dangerous than fifty states pursuing parochial foreign policies. This argument is too court-centered. It overlooks the federal political branches' power to clamp down on untoward state foreign relations activities. It also fails to recognize that an independent judicial foreign affairs power would only discourage Congress and the President from taking these constitutional responsibilities seriously.

It is impossible to know whether these concerns informed the Supreme Court's narrow statutory ruling in the Burma case. The Burma case does reveal, however, that the President and Congress can quickly and effectively address foreign relations concerns. Judges should vigorously enforce federal treaties and foreign relations statutes when they conflict with state law. But an independent judicial power to invalidate state laws related to foreign relations is both unwise and unnecessary.


Jack Goldsmith is a Professor of Law at the University of Chicago.