CFIUS Preemption

25 Pages Posted: 15 Dec 2021 Last revised: 12 Jan 2022

See all articles by Kristen Eichensehr

Kristen Eichensehr

University of Virginia School of Law

Date Written: December 10, 2021

Abstract

Spurred by concerns about a Chinese-owned wind farm, Texas recently enacted the Lone Star Infrastructure Protection Act to prohibit companies and Texas governmental entities from entering into agreements relating to critical infrastructure with companies that have certain ties to China, Iran, North Korea, or Russia. The Texas statute presents an opportunity to consider the preemptive scope of the federal Committee on Foreign Investment in the United States (CFIUS) process, which reviews inbound foreign investments for national security concerns, takes steps to mitigate risks, and occasionally blocks transactions through presidential action. This Essay argues that when state laws, like the Texas statute, purport to apply to areas within CFIUS’s jurisdiction, they pose an obstacle to the federal process and are subject to preemption. However, the Essay also proposes ways to channel state concerns and local knowledge into the CFIUS process and render it more like “cooperative federalism.”

Keywords: National security, preemption, Committee on Foreign Investment in the United States, federalism

Suggested Citation

Eichensehr, Kristen, CFIUS Preemption (December 10, 2021). 13 Harv. Nat. Sec. J. 1 (2022), Virginia Public Law and Legal Theory Research Paper No.2022-04, Available at SSRN: https://ssrn.com/abstract=3985070

Kristen Eichensehr (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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