States of Resistance
65 Pages Posted: 17 Oct 2018
Date Written: September 24, 2018
In a recent essay, Dean Harold Hongju Koh argued that “states and localities […] should make clear to the international actors seeking to preserve the Paris accords that Donald Trump does not own the process or speak entirely for America.” California has taken up Dean Koh’s call to arms and is actively challenging U.S. climate policy on the international stage. Dean Koh’s statement, and California’s actions, facially contradict the Supreme Court’s pronouncement in Garamendi that “the exercise of the federal executive [foreign affairs] authority means that state law must give way where, as here, there is evidence of clear conflict between the policies adopted by the two.” Am. Ins. Assn. v. Garamendi, 537 U.S. 1100 (2003). The literature has split over the precise precedential value of Garamendi for the appraisal of the constitutionality of California’s conduct, giving ammunition to claims of a globalist subversion of regular Constitutional order by the nationalist right.
This Article sets out to rebut such claims of subversion. It will re-theorize state participation in foreign affairs through the lens of the transnational legal process and global governance network literatures. In keeping with this literature, the Article submits that governments, including state governments, participate in a multitude of competing global governance networks. These multiple networks inherently create friction with each other due to the resistance by their participants against the norm proposals by participants in other networks. State participation in global governance networks thus necessarily creates resistance to federal foreign policy, and does so along predictable lines mapped in the Article as logically separate “states of resistance.”
Once it is possible to explain the friction between state law and federal policy by means of such states of resistance, it is also possible to reframe the constitutional question posed by Garamendi: When may states participate in global governance networks? And, relatedly, when may states challenge federal foreign policy through their participation in such networks? Consistent with the framework of global governance networks, the Article will submit that all such state conduct must be appraised through the Constitution’s Compact Clause. It will submit that states may challenge the federal government by coordinating their actions consistent with their existing regulatory powers even within the confines of Garamendi. It will further submit that the jurisprudence of the Court, consistent with this frame, considers the relative traditional regulatory interests of the states and federal governments in assessing state conduct.
The Article will meaningfully advance the literature by providing a more precise legal framework for conflict and resistance between states and the federal government on foreign policy questions. This framework can explain how states act as an additional check on federal foreign policy consistent with Garamendi. It does so in a noticeable departure from dominant frameworks in the foreign affairs literature by harmonizing the traditional foreign affairs jurisprudence of the Court critiqued in that literature with a significant role for states to check and participate in the formulation of national foreign policy advocated by that literature.
Keywords: foreign relations law, federalism, constitutional law
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