Anti-Offshoring Legislation and United States Federalism: The Constitutionality of Federal and State Measures Against Global Outsourcing of Professional Services

35 Pages Posted: 8 Jan 2009 Last revised: 29 Jan 2012

Amar Gupta

Massachusetts Institute of Technology (MIT)

Deth Sao

Pace University

Date Written: January 8, 2009

Abstract

This paper seeks to build upon earlier works analyzing U.S. federal and state legislation that conflict with the United States' obligations under international agreements. Several of these earlier works conclude that such conflicting legislation violates the Constitution on a variety of grounds, and is therefore legally invalid.

The findings of this paper both validate and undermine the results of these earlier works, as an analysis of the relationship between state laws, federal laws, and international agreements reveal many areas of legal uncertainty and ambiguity.

This paper is divided into six parts. First, it details the emergence and effect of offshoring of professional services on the U.S. economy. Second, it explores the economic and public policy concerns surrounding offshoring. Third, it addresses federal and state government responses to offshoring. Fourth, it examines the constitutional implications of state offshoring restrictions against government contracts and private entities. Fifth, it focuses on federal legislation against offshoring, and potential conflicts with international agreements. Finally, it concludes with an assessment of the effectiveness of trade dispute settlement mechanisms for services.

Keywords: offshore, offshoring, international agreements

JEL Classification: K4

Suggested Citation

Gupta, Amar and Sao, Deth, Anti-Offshoring Legislation and United States Federalism: The Constitutionality of Federal and State Measures Against Global Outsourcing of Professional Services (January 8, 2009). Texas International Law Journal, Vol. 44, No. 4, p. 629, Summer 2009. Available at SSRN: https://ssrn.com/abstract=1324555

Amar Gupta (Contact Author)

Massachusetts Institute of Technology (MIT) ( email )

77 Massachusetts Avenue
Building 32-256
Cambridge, MA 02139
United States
617-253-0418 (Phone)

Deth Sao

Pace University ( email )

White Plains, NY
United States

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