Are We to Be a Nation?: Federal Power vs. 'States? Rights' in Foreign Affairs

Abstract

In recent years, a number of scholars have sought to extend the Supreme Court?s recent ?states? rights? holdings to establish a ?new? foreign affairs law. This attempt has matters exactly backwards. Not only are older, more nationalist precedents well-settled, they better comport with standard techniques of constitutional interpretation. One especially telling example involves the novel prohibition against the Federal government ?commandeering? the states and state officials as set out in New York v. United States and Printz v. United States. These cases attempt to sidestep Garcia v. United States by casting the prohibition as a limit on Federal power rather than a shield created by state sovereignty. They also represent a new species of judicial activism since they lack any convincing basis in text, structure, or original understanding. Moreover, precisely the tack these cases take to avoid domestic precedent leave open the possibility that the Federal government could augment its power to include commandeering through a treaty under Missouri v. Holland. Notwithstanding the delphic opinion by Justice Holmes, the result in Missouri finds finds far greater support in constitutional text, structure and history than do the recent states? rights cases on which the new foreign affairs law would rely.