Academic journal article The Yale Law Journal

Gubernatorial Foreign Policy

Academic journal article The Yale Law Journal

Gubernatorial Foreign Policy

Article excerpt



     A. Defining a Gubernatorial Foreign Policy
     B. Examples of Gubernatorial Foreign Policy
        1. Responding to Demands by Foreign Governments and
        2. International Agreements
           a. Bilateral Agreements
           b. Multilateral Agreements
        3. Executive Actions Pursuant to Statutory Authorization

     A. A Constitutional Space for a Gubernatorial Foreign Policy
        1. The Retreat from Federal Exclusivity
        2. Commandeering
           a. New York v. United States and Printz v. United States
           b. Commandeering and Foreign Affairs
     B. Expanding the Constitutional Space
        1. Responding to Foreign Demands
        2. Treaty Limitations

     A. Building a Gubernatorial Foreign Policy Capacity
     B. Accommodating Globalization While Preserving Federalism



In May 2004, the office of Governor Brad Henry of Oklahoma became the unlikely focal point of relations between Mexico and the United States. Osbaldo Torres, a Mexican national convicted of multiple murders by Oklahoma courts, was scheduled to be executed on May 18. Not only was the Mexican government urgently lobbying the governor's office on Torres's behalf, but the Governor was also considering a judgment issued by the International Court of Justice (ICJ) purporting to require him to suspend Torres's execution and to order a new hearing to consider the effect of treaty violations on Torres's conviction and sentence. (1) At the same time, attorneys for Tortes were urgently seeking an order from Oklahoma's highest court of criminal appeals to stay the execution based on the ICJ's order. (2)

On the morning of May 13, the Oklahoma court suspended the execution and ordered a new hearing pursuant to the ICJ judgment. (3) A few hours later, Governor Henry announced at a press conference that he had commuted Torres's sentence to life imprisonment, thereby removing most of the legal basis for Torres's appeal under the ICJ judgment. (4)

As the Governor, the state's highest criminal court, the Mexican government, and the ICJ struggled to resolve Torres's fate, one entity was curiously absent: the U.S. federal government. According to news reports, the State Department had contacted Governor Henry's office but had merely urged him to consider the ICJ's judgment. (5) The federal government did not intervene in the litigation in the Oklahoma state courts. The Governor was not ordered by the President to commute Torres's sentence. Rather, the Governor exercised his own discretion in making that decision. (6)

The President's passivity is surprising because it is an axiom of U.S. foreign relations law that the President is the leading authority, perhaps even the "sole organ," (7) for the conduct of U.S. foreign policy. Moreover, it is nearly as axiomatic that state governments are not granted an independent role in conducting foreign policy. (8) Yet in this case, a potentially important diplomatic issue was left entirely to the discretion of the Governor of Oklahoma and the Oklahoma state courts. Indeed, although the State Department issued statements in previous ICJ cases involving similar issues, none of the statements "ordered" or "commanded" the governors in those cases; each governor made an independent decision about whether and how to comply with the ICJ's judgments. (9)

To be sure, in a subsequent case involving the effect of the same ICJ judgment on a Texas execution, the President intervened by releasing a memorandum purporting to order the Texas courts to follow the ICJ's judgment. (10) The constitutionality of this order will be tested in the near future, but even if upheld, it applies only to state courts, and not to governors. …

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