Abstract

http://ssrn.com/abstract=2264457
 


 



Foreign Affairs Federalism: A Revisionist Approach


Daniel Abebe


University of Chicago - Law School

Aziz Z. Huq


University of Chicago Law School

May 13, 2013

Vanderbilt Law Review, Vol. 66, No. 3, 2013
U of Chicago, Public Law Working Paper No. 429

Abstract:     
This Article analyzes how federal courts should resolve disputes implicating both federalism and foreign affairs concerns when no textual source of law provides dispositive direction. This challenge, which arises in what Justice Jackson once called the "zone of twilight," occurs with surprising frequency. Most recently, it can be discerned in Justices Kennedy’s and Scalia’s dueling opinions in Arizona v. United States. Analysis of the Arizona opinions suggests that federal judges tend to resolve such zone of twilight disputes by invoking a default presumption either in favor of state or federal control. Scholarship on the appropriate choice of presumption divides methodologically, yielding what can be usefully labeled formalist and functionalist approaches. Neither is satisfactory as presently formulated. Formalist approaches yield incoherent and unsatisfactory responses. Existing functionalist analyses, while sound in general approach, omit crucial considerations. To remedy the ensuing gap in the literature, this Article develops a second-generation functionalist approach for resolving foreign affairs federalism cases in the zone of twilight. Cataloging both the costs and advantages of centralization, we posit that the appropriate judicial presumption should vary over time. Our central thesis is that, while both the states and the federal government have legitimate regulatory interests, the relative strength of their interests depends on geopolitical conditions. To operationalize that insight, the Article offers a parsimonious doctrinal tool, based on the international relations concept of polarity, to determine when the presumption should switch from favoring the states to favoring the federal government.

Number of Pages in PDF File: 75

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Date posted: May 14, 2013  

Suggested Citation

Abebe, Daniel and Huq, Aziz Z., Foreign Affairs Federalism: A Revisionist Approach (May 13, 2013). Vanderbilt Law Review, Vol. 66, No. 3, 2013; U of Chicago, Public Law Working Paper No. 429. Available at SSRN: http://ssrn.com/abstract=2264457

Contact Information

Daniel Y. Abebe (Contact Author)
University of Chicago - Law School ( email )
1111 East 60th Street.
Chicago, IL 60637
United States
7738344164 (Phone)
HOME PAGE: http://www.law.uchicago.edu/faculty/abebe
Aziz Z. Huq
University of Chicago Law School ( email )
1111 East 60th Street
Chicago, IL 60637
United States
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