42 Pages Posted: 12 Feb 2001
This paper examines the problem of statutory foreign affairs preemption. There are two related interpretive issues. One concerns the proper interpretive default presumption. Should preemption analysis indulge a presumption in favor of the federal government's strong national interest in conducting foreign affairs? Should it instead be biased to protect traditional state prerogatives? Or should no presumption attach in either direction? I argue that neither an interpretive canon favoring federal foreign affairs interests, nor one favoring state interests, is warranted in this context. Considered separately, each canon rests on implausible institutional and empirical assumptions. When a foreign relations statute touches on traditional state prerogatives, both canons are implicated, and both lose coherence. The prudent course is for courts to apply "ordinary" principles of preemption without any presumption in favor of state or federal law, even when they think the statute concerns foreign affairs.
Of course, courts have an array of "ordinary" preemption doctrines at their disposal even after they have resolved the default presumption issue. The second issue, therefore, is: Which preemption doctrine(s) should they apply in the foreign relations context? When a case involves a state law that appears to implicate foreign relations, options for preemption include express preemption, conflict preemption, obstacle preemption, field preemption, dormant commerce clause preemption, dormant foreign affairs preemption, and the federal common law of foreign relations. These doctrines can be compared along two dimensions: (a) the degree to which the political branches have spoken to the preemption issue, and (b) the extent to which preemption doctrines require courts to engage in an independent assessment of the state law's effect on U.S. foreign relations. I argue that, for reasons of institutional competence and political process, and because of the waning of the domestic-foreign affairs distinction, courts should engage in minimalist statutory foreign affairs preemption. They should eschew independent judicial foreign policy analysis, and preempt state law only on the basis of policy choices traceable to the political branches in enacted law. This, I argue in the last Section of the paper, is precisely what the Supreme Court did in its recent decision in Crosby v. National Foreign Trade Council, 120 S Ct 2298 (2000).
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By Eric Posner
By Eric Posner