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The Abiding Relevance of Federalism to U.S. Foreign Relations

Published online by Cambridge University Press:  27 February 2017

Curtis A. Bradley  and
Jack L. Goldsmith
Curtis A. Bradley
Affiliation:
University of Colorado School of Law
Jack L. Goldsmith
Affiliation:
University of Chicago Law School
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Extract

The international law community has heavily criticized the United States’ handling of the Breard case. These criticisms are understandable. Perhaps because of the rush of time, the explanations by the Department of Justice and the Supreme Court for failing to stop Breard’s execution brushed over important issues of domestic and international law. In addition, Virginia’s decision to proceed with the execution, and the federal Government’s decision not to block it, may have reflected insufficient respect for international law and institutions. These decisions may also adversely affect U.S. relations with other nations and weaken consular protection of U.S. citizens abroad. These criticisms, however, tell only part of the story. In particular, they do not consider countervailing considerations grounded in the Constitution’s allocation of authority between the federal and state governments.

Type
Agora: Breard
Information
American Journal of International Law , Volume 92 , Issue 4 , October 1998 , pp. 675 - 679
Copyright
Copyright © American Society of International Law 1998

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References

1 See, e.g., United States v. Pink, 315 U.S. 203, 233 (1942) (“Power over external affairs is not shared by the States; it is vested in the national government exclusively.”); United States v. Belmont, 301 U.S. 324, 331 (1937) (“[I]n respect of our foreign relations generally, state lines disappear. As to such purpose the State … does not exist.”); 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.”); see also United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 316 (1936) (“[S]ince the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source.”).

2 See, e.g., Lea Brilmayer, Federalism, State Authority, and the Preemptive Power of International Law, 1994 Sup. Ct. Rev. 295, 304, 332 n.109; Louis Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555, 1559 (1984); Harold Hongju Koh, Is International Law Really State Law? 111 Harv. L. Rev. 1824, 1846–47 (1998).

3 See, e.g., Louis Henkin, Foreign Affairs and the United States Constitution 191, 197 (2d ed. 1996) (“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.’ ”); Lori Fisler Damrosch, The Role of the United States Senate Concerning “Self-Executing” and “Non-Self-Executing” Treaties, 67 Chi.-Kent L. Rev. 515, 530 (1991); Gerald L. Neuman, The Global Dimension of RFRA, 14 Const. Commentary 33, 46–48 (1997).

4 See, e.g., Daniel Chow, Limiting Erie in a New Age of International Law: Toward a Federal Common Law of International Choice of Law, 74 Iowa L. Rev. 165, 167, 182–83 (1988); John Norton Moore, Federalism and Foreign Relations, 1965 Duke L.J. 248, 275–76; Donald T. Trautman, Toward Federalizing Choice of Law, 70 Tex. L. Rev. 1715, 1735–36 (1992).

5 See Statement Amicus Curiae of International Law Professors George A. Bermann, David D. Caron, Abram Chayes, Lori Fisler Damrosch, Richard N. Gardner, Louis Henkin, Harold Hongju Koh, Andreas Lowenfeld, W. Michael Reisman, Oscar Schachter, Anne-Marie Slaughter, and Edith Brown Weiss at 1, Republic of Paraguay v. Gilmore, 118 S.Ct. 1352 (1998) (No. 97-1390).

6 Id. at 8–9.

7 The federal Government acknowledged that the Vienna Convention had been violated, apologized to Paraguay, and took several new steps to ensure that federal, state, and local officials would be aware of, and comply with, the consular notification and consultation provisions of the Vienna Convention. See Brief for the United States as Amicus Curiae at 10, 12, Breard v. Greene, 118 S.Ct. 1352 (1998) (Nos. 97-8214, 97-1390).

8 Id. at 48.

9 Id. at 51.

10 Letter from U.S. Secretary of State Madeleine K. Albright to Governor of Virginia James Gilmore (Apr. 13, 1998).

11 See Republic of Paraguay v. Allen, 134 F.3d 622, 627–29 (4th Cir. 1998); Breard v. Pruett, 134 F.3d 615, 619–20 (4th Cir. 1998); Republic of Paraguay v. Allen, 949 F.Supp. 1269, 1272–73 (E.D. Va. 1996); Breard v. Netherland, 949 F.Supp. 1255, 1263 (E.D. Va. 1996).

12 Breard v. Greene, 118 S.Ct. 1352, 1356 (1998).

13 See U.S. Const., Preamble; The Federalist No. 1 (Alexander Hamilton).

14 See, e.g., The Federalist Nos. 45, 46 (James Madison).

15 See Frederick W. Marks III, Independence on Trial: Foreign Affairs and the Making of the Constitution (2d ed. 1986); The Federalist Nos. 3, 4 (John Jay).

16 U.S. Const. Art. I, §10.

17 See, also in this Agora, Carlos Manuel Vázquez, Breard and the Federal Power to Require Compliance with ICJ Orders of Provisional Measures, infra pp. 683, 684–85. It is worth noting that the famous Supreme Court dicta regarding the irrelevance of federalism to foreign relations, see supra note 1, all came in cases in which the political branches had affirmatively acted to create federal law.

18 This is not to say that in the foreign affairs area the federal political branches have unlimited authority to preempt the states. The Constitution creates a federal Government of limited and enumerated powers, and it reserves to the states and the people the powers not delegated to the federal Government. See, e.g., City of Boerne v. Flores, 117 S.Ct. 2157, 2162 (1997); United States v. Lopez, 514 U.S. 549, 552 (1995); U.S. Const. amend. X. There may be some instances, therefore, in which the federal political branches will lack the authority to override state law, even pursuant to a treaty. See generally Curtis A. Bradley, The Treaty Power and American Federalism, 97 Mich. L. Rev. (forthcoming).

19 See generally Dennis J. Palumbo, The States and American Foreign Relations (1960); Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 Va. L. Rev. 1617, 1650–58 (1997).

20 See, e.g., U.S. Senate Resolution of Advice and Consent to Ratification of the International Covenant on Civil and Political Rights, 138 Cong. Rec. S4781 (daily ed. Apr. 2, 1992), reprinted in 89 AJIL 109, 111 (1995).

21 See Peter J. Spiro, The States and International Human Rights, 66 Fordham L. Rev. 567, 574–75 (1997).

22 See Brian Hocking, Localizing Foreign Policy: Non-Central Governments and Multilayered Democracy 130–51 (1993).

23 Barclays Bank PLC v. Franchise Tax Bd., 512 U.S. 298, 331 (1994). This decision may have eliminated the remnants of the dormant foreign affairs preemption doctrine announced in Zschernig v. Miller, 389 U.S. 429 (1968). See 512 U.S. at 332 (Scalia, J., concurring); Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 865 (1997); Goldsmith, supra note 19, at 1699–1701. Professor Kirgis suggests in this Agora that Zschernigh still good law, and that it “appl[ies] to the Breard situation” to the extent that it is properly read as “prohibit[ing] states from ‘intruding’ on the exclusive national authority in foreign affairs.” Frederic L. Kirgis, Zschernig v. Miller and the Breard Matter, infra p. 704, 707. Even if Zschernig retained such vitality, however, it is hard to see how it would be relevant to the Breard litigation, where extant federal statutes and the federal Executive supported Virginia's nondiscriminatory application of its rules limiting postconviction relief.

24 See 19 U.S.C. §3512 (1994) (GATT); 19 U.S.C. §3312 (NAFTA).

25 The United Nations Charter obligates the United States to “comply with the decision of the International Court of Justice in any case to which it is a party.” UN Charter Art. 94(1). It is not clear, however, whether the Provisional Measures Order in the Breard case qualifies as a “decision” under this provision. Nor is it clear whether the ICJ intended the Provisional Measures Order to be binding and, if so, what power the ICJ has to issue such an order. See Brief for the United States as Amicus Curiae, supra note 7, at 49–51.

26 The Constitution may control the resolution of some of these questions through, for example, its limitations on federal court jurisdiction in the 11th Amendment. See Breard v. Greene, 118S.Ct. 1352, 1356 (1998).

27 It is far from clear, however, that Virginia's exhaustion and procedural default doctrines conflict with the Vienna Convention in a way that would require preemption. The Convention states that the rights it confers “shall be exercised in conformity with the laws and regulations of the receiving State.” Vienna Convention on Consular Relations, Apr. 24, 1963, Art. 36(2), 21 UST 77, 596 UNTS 261. As the Supreme Court noted, “By not asserting his Vienna Convention claim in state court, Breard failed to exercise his rights under the Vienna Convention in conformity with the laws of the United States and the Commonwealth of Virginia.” Breard, 118 S.Ct. at 1355 (emphasis added). To be sure, the Convention also states that “said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.” Id. It is unclear what “full effect” means here. But it is not self-evident that a limitation on postconviction relief denies full effect to the rights in the Convention, any more than applying such a limitation to U.S. constitutional rights precludes them from having full effect.

28 See The Chinese Exclusion Case, 130 U.S. 581, 600–02 (1889); Whitney v. Robertson, 124 U.S. 190, 194 (1888); Head Money Cases, 112 U.S. 580, 599 (1884).

29 See 28 U.S.C.A. §2254(a), (e) (West Supp. 1998); see also Breard, 118 S.Ct. at 1355.

30 In the Breard litigation, a decision by the Executive to compel Virginia's compliance with the ICJ Order might well have had an adverse impact on other foreign relations interests by, for example, causing a backlash in the Senate with respect to U.S. payment of dues in the United Nations or participation in the proposed international criminal court. See Anne-Marie Slaughter, On a Foreign Death Row, Wash. Post, Apr. 14, 1998, at A15.

31 There are many judicial decisions, in addition to those in the Breard case, that confirm this country's dualist approach to international obligations. See, e.g., Reid v. Covert, 354 U.S. 1, 17 (1957) (plurality) (concluding that treaties and executive agreements are subject to “[t]he prohibitions of the Constitution”); Whitney v. Robertson, 124 U.S. 190, 194 (1888) (holding that a federal statute supersedes a prior inconsistent treaty); Garcia-Mir v. Meese, 788 F.2d 1446, 1453–54 (11th Cir. 1986) (holding that the President and Congress have the domestic authority to override customary international law); see also United States v. Alvarez-Machain, 504 U.S. 655, 668, 670 (1992) (holding that the abduction of a criminal defendant from Mexico, although it “may be in violation of general international law principles,” “does not … prohibit his trial in a court in the United States for violations of the criminal laws of the United States”); Stanford v. Kentucky, 492 U.S. 361, 370 n.1 (1989) (rejecting the argument that the Court should consult international practice in construing the Eighth Amendment because “it is American conceptions of decency that are dispositive”). For additional discussion of the dualist nature of the U.S. relationship with international law, see Curtis A. Bradley, The Breard Case, Our Dualist Constitution, and the Internationalist Conception, 51 Stan. L. Rev. (forthcoming 1999).