Executive Foreign Policy and the States: Recent Developments
111 Michigan Law Review First Impressions 28 (2012)
9 Pages Posted: 26 Jul 2014
Date Written: March 31, 2012
On February 23 of this year, the Ninth Circuit Court of Appeals invalidated a California statute permitting victims of the Armenian genocide to file insurance claims, finding that the state's use of the label "Genocide" intruded on the federal government's conduct of foreign affairs. This decision, Movsesian v. Versicherung AG, addresses foreign affairs federalism — the division of authority between the states and the federal government. Just one month later, the Supreme Court weighed in on another foreign affairs issue: the separation of foreign relations powers within the federal government. In Zivotofsky v. Clinton, the Supreme Court ordered the lower courts to help referee a conflict between the executive and legislative branches of the federal government concerning how Jerusalem — born American citizens list their country of birth on their passports. The former case presented an issue of federalism and the latter an issue of separation of powers; yet both cases sought to delineate foreign affairs authority in the United States.
This Essay addresses the relationship between the states and the federal executive in foreign affairs — a federalism question — in light of coming separation-of-powers decisions. Part I briefly outlines foreign affairs federalism: how far into foreign affairs may states reach without stepping into the federal government's exclusive terrain? Part II looks at a particular permutation of this federalism debate, examining the conflict between the states and the national executive. Movsesian, the Armenian genocide case, highlights this state-executive clash. The panel and en banc opinions in Movsesian offered two different approaches to this federalism question, both of which present textual and practical difficulties. Having laid out the problems with these approaches, Part III looks for answers in an unlikely place: decisions about the separation of powers within the federal government. In Zivotofsky, the Supreme Court called for increased judicial participation in contests between Congress and the President in foreign affairs. This command will produce a body of law defining the sphere of exclusive executive authority vis-à-vis Congress. Synthesizing these decisions, Part IV argues that, for structural and pragmatic reasons, courts should bar states as well as Congress from this exclusive executive sphere. The Supreme Court has called upon the courts to articulate the boundaries of executive and legislative authority within the federal government, but in so doing, the courts indirectly will provide guidance about the division between the federal government and the states.
Keywords: foreign affairs, separation of power, federalism
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