32 Pages Posted: 12 Jul 2017
Date Written: June 10, 2017
This book review argues for reorienting how we think about federalism in relation to foreign affairs. In considering state and local engagement in foreign affairs, legal scholars often focus on the opportunities and limits provided by constitutional law. Foreign Affairs Federalism: The Myth of National Exclusivity by Michael Glennon and Robert Sloane does precisely this in a thoughtful and well-crafted way. But while the backdrop constitutional principles studied by Glennon and Sloane are important, so too are other types of law that receive far less attention. International law, administrative law, particular statutory schemes, and state law can all affect how state and local governments act in relation to foreign affairs – and can affect how they interact with each other, with the federal government, and with transnational actors.
The scholarly literature on cooperative and uncooperative federalism with respect to domestic issues serves as a starting point for understanding how foreign affairs federalism operates today. This literature explores how the federal government can incentivize state and local governments to help advance federal interests, how these state and local governments can influence or resist federal policy, and how both Congress and the executive branch can use state and local action to muster power at the expense of the other branch. At a high level of generality, these insights apply to issues with transnational dimensions. But because of the added complexity of the foreign affairs context – including its ties to international law and its increased reliance on strong executive power – the specifics cannot simply be imported wholesale. The book review therefore closes by suggesting several ways in which the practice and doctrine associated with cooperative and uncooperative foreign affairs federalism should differ from the domestic context.
Keywords: Foreign Relations Law, Separation of Powers, Transnational Regulation, Preemption, Sister Cities, Trade Sanctions, Climate Change, Global Warming, Immigration
Suggested Citation: Suggested Citation
Galbraith, Jean, Cooperative and Uncooperative Foreign Affairs Federalism (June 10, 2017). Harvard Law Review, Vol. 130, p. 2131, 2017; U of Penn Law School, Public Law Research Paper No. 17-28. Available at SSRN: https://ssrn.com/abstract=2999780