The Undersea World of Foreign Relations Federalism

By Swaine, Edward T. | Chicago Journal of International Law, Fall 2001 | Go to article overview

The Undersea World of Foreign Relations Federalism


Swaine, Edward T., Chicago Journal of International Law


Long before "Judge Wapner's Animal Court," commercial television broadcast a nature series perhaps equally relevant to the law-"The Undersea World of Jacques Cousteau." The show was popular because of what it revealed about a world still mysterious to many of us. It also appealed, however, because it managed to maintain that air of mystery-the sense of a truly distinct world that could not be wholly disclosed, a sense conveyed even more plainly in the titles of Cousteau's Oscarwinning documentaries, "Le Monde du Silence" and "Le Monde sans Soleil." This theme undoubtedly owed a great deal to its narrator: more of an explorer, showman, and advocate than scientist, Cousteau had both a keen sense of drama and a healthy instinct for leaving the details to others.

Cousteau's oceans come to mind, improbably enough, in contemplating the Supreme Court's approach to the world of foreign relations federalism. One of the field's attractions is that it looks so different from the rest of the law, partly because there simply isn't much real doctrine to worry about. If we have learned anything from the groundbreaking scholarship of the last five years, it's that the most fiercely held shibboleths-including the orthodox view that the federal government holds a monopoly in external relations, and the complete vulnerability of states to the enforcement of international law in federal courts-have little binding precedent for or against them. The Supreme Court moved first from a period in which few cases seem to have arisen, to one in which it distinguished the world of foreign relations by issuing sweeping paeans to national power, and now to an era in which it says virtually nothing, leaving the little precedent to languish unexplained.

This reticence may have begun thirty years ago, in the wake of Cousteau's own silent world, but has been most evident in the last ten years. In 1994, for example, the Court upheld California's controversial worldwide combined reporting method for assessing state corporate franchise taxes on multinationals, dismissing claims that the state policy interfered with the "one voice" America needed to conduct foreign relations-perhaps because of the particulars of congressional deliberation, and perhaps because the Court was rejecting sub silentio any "dormant" constitutional limits on state authority.1 Last summer, the Court's eagerly-awaited opinion in Crosby v National Foreign Trade Council masterfully imparted as little wisdom as possible: the Court struck down Massachusetts's Burma procurement law on statutory preemption grounds, avoiding claims that the law violated dormant foreign relations preemption and the dormant Foreign Commerce Clause, and even refusing to explain its approach to questions of statutory preemption in foreign relations cases.2

In the meantime, judges and lawyers with less discretionary dockets must persevere in deciding cases and rendering advice. In a recent case, for example, the US District Court for the Southern District of Florida wrestles with whether it should enjoin a local ordinance restricting Miami-Dade County from doing business with anyone also doing business with Cuba or Cuban nationals. The court confessed that it was difficult to decide given "[a] dearth of established precedent in this evolving area of the law," and looked forward (in vain, as it turned out) to Crosby's resolution of the matter.3 In the interim, the court guessed that it should enjoin the ordinance, based on a rather extreme theory of constitutional preemption and statutory field preemption. A month later, but again prior to Crosby, the US District court for the Eastern District of California enjoined California's Holocaust Victim Insurance Relief Act, which required insurance companies doing business in California to disclose European policies issued between 1920 and 1945, on the grounds that the act interfered with the national government's exclusive authority over foreign relations, violated the dormant Foreign Commerce Clause, and was preempted to boot. …

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