Think Locally, Act Globally? Dormant Federal Common Law Preemption of State and Local Activities Affecting Foreign Affairs

Abstract

In the late Nineteenth Century, California enacted a statute regulating the arrival of passengers from foreign ports for certain classes of passengers, such as “lewd and debauched women.” In 1939, Pennsylvania passed an Alien Registration Act that required, among other things, aliens to register once a year, pay an annual registration fee, and carry at all times an alien identification card. In the early 1970's, the New York City Commission on Human Rights ordered the New York Times to cease and desist from printing advertisements seeking employees for employment in South Africa. In June of 1980, at the height of the Iran hostage crisis, the Regents of New Mexico State University passed a motion barring “any student whose home government holds, or permits the holding of U.S. citizens hostage” from enrollment at the University until the hostages are released. In 1997, the New York City Council named the street across from the Nigerian Mission to the United Nations and the Nigerian Consulate after the slain wife of a jailed Nigerian dissident. A few years ago, Rajaa Al Mukaddam filed a claim under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law contending that her employment was wrongfully terminated by the Permanent Mission of Saudi Arabia to the United Nations.

These seemingly disparate state and local activities are tied together by their potential impact on foreign affairs - the same characteristic that ultimately brought each of these activities before various courts across the country. Even prior to the founding of the United States, the activities of one part of the country have had effects on the foreign relations of the whole, and various state and local activities will likely always have some 925 international resonance. As the world becomes increasingly interdependent, however, and as states and localities flex their political powers, activities such as those described will probably continue to proliferate at an ever-increasing rate and have ever-increasing effects. The question to be confronted by courts and scholars, then, is not whether such actions exist and will continue to multiply, but what, if anything, the courts should do about them.

This issue wended its way up to the Supreme Court in the 2000 term, in Crosby v. National Foreign Trade Council, in which the Court was asked to evaluate the constitutionality of a Massachusetts law that restricted the authority of the state's agencies to purchase goods or services from companies doing business with Burma. The Court bypassed the question by invalidating the Massachusetts Burma Law on the narrow grounds of the Supremacy Clause, finding it directly preempted by Congress' promulgation of a similar federal law three months after the Massachusetts law. Because the Court found the existing federal statute to be directly on point, the viability of dormant federal common law preemption of state and local activities affecting foreign affairs remains unresolved. The issue that the Court ultimately found not implicated by the facts in Crosby presents a fascinating and complicated area in which federal common law, foreign affairs and the structures underlying the Constitution intersect - and one that the lower courts will have to continue to explore with little guidance. This Article will focus upon the negative spaces left by the Court's *926 most recent, limited, foray into the realm of foreign affairs and attempt to fill some of them in by addressing the question of how we should treat state and local activities that affect foreign affairs in the absence of preemptive Congressional action.

Despite the fact that this issue is familiar to both courts and commentators, neither of these participants in the on-going discussion of the issue has shed much light on what a systemic treatment of the problem should look like. That the Supreme Court has provided the lower courts with insufficient direction is reflected in the profusion of confusing lower court opinions on the subject in which the courts appear to have applied a range of doctrinal tests roughly equal to the range of factual situations before them. The academic commentary has largely focused upon the more abstract problem of whether or not there should be dormant federal common law preemption generally, paying scant attention to the proper scope of such preemption, should it exist. The majority of those who have opined on the subject simply reiterate much of what has already been said; on the question of scope, unfortunately, the result has been “a very sketchy treatment of a complex subject.

That few, including the justices of the Supreme Court, have attempted to tackle the issue of preemption generally and the proper scope of preemption, should it exist, is unsurprising given the difficulty of the endeavor. The problem, after all, lies not in articulating a test that satisfactorily resolves the easy cases - those laws that everyone agrees states should be able to promulgate regardless of their effect on foreign nations and those that everyone agrees states are forbidden from promulgating - but rather in articulating one that provides a satisfactory means of addressing the more difficult cases, such as the Massachusetts Burma law at issue in Crosby and the other factual situations noted previously.

This Article begins with a critical review of the existing arguments on the subject and contends that those in favor of preemption are more persuasive. Then, because a pro-preemption analysis ultimately needs to shift its focus away from generic justifications of preemption itself to the proper 927 scope of that preemption, the remainder of the Article will focus on crafting a principled doctrinal test, grounded in the structures of the Constitution, that attempts to resolve that question. Even if this Article ultimately fails to identify a single ideal doctrinal test that satisfactorily resolves each and every difficult case, it will hopefully provide some descriptive clarity to the situation at hand and indicate some avenues future courts and commentators may find useful in the course of making its normative claims.

Part I will provide an introduction to the types of state and local actions at issue by presenting the essentials of the First Circuit and Supreme Court's decisions in Crosby. This summary will provide a reference point for the analysis in Part II, which will provide a critical review of the current arguments for and against dormant federal common law preemption. Part II will conclude that the text and history of the Constitution, prior caselaw, functional considerations, and the structural relationships of our system of government all militate in favor of preemption. Part III will attempt to make descriptive sense of the current state of the law. It will endeavor to identify the primary concerns of the courts, describe how the courts are currently treating the relevant state and local actions, and attempt to systematize their efforts. Finally, Part IV will embark upon the road towards a doctrinal test delimiting the scope of preemption. It will suggest that the taxonomy of cases introduced in Part III, taken in conjunction with the arguments in favor of preemption presented in Part II, indicate the direction a viable doctrinal test should take.

Keywords: federal jurisdiction, preemption, federal common law preemption