The Abiding Exceptionalism of Foreign Relations Doctrine
In their article The Normalization of Foreign Relations Law, Professors Ganesh Sitaraman and Ingrid Wuerth argue that “[foreign affairs] exceptionalism . . . is now exceptional,” and that this is a good thing. I agree with much of the authors’ normative argument for “normalization” of foreign affairs doctrine (as they define the term). But the authors overstate the extent to which such normalization has already occurred. There have indeed been some recent Supreme Court decisions that seem to lack the exceptional deference to the Executive that had characterized judicial decision-making in the foreign affairs area in previous years. But foreign affairs doctrine remains resolutely exceptionalist in some areas beyond those identified by the authors as reflecting the “unfinished business” of normalization. When these additional manifestations of exceptionalism are added to the ones the authors have identified, the claim that exceptionalism is now exceptional seems overstated.Part I of this response discusses the authors’ definition of exceptionalism and normalization, which the authors describe as “an independent contribution” of the article, “regardless of whether one agrees with [its] broader normalization thesis.” As noted, their definition collapses the question of normalization with the proper interpretation of the Constitution.Part II challenges the authors’ characterization of some doctrines or decisions as exceptionalist. The authors cite Missouri v. Holland as an example of foreign relations exceptionalism. But the holding of Missouri v. Holland is supported by the constitutional text and is consistent with original intent and the case law preceding the decision.Part III focuses on the judicial enforcement of treaties. As I have written at some length in these pages, the Supremacy Clause establishes that treaties are to be enforceable in the courts in the same circumstances as statutes. Yet the courts have engrafted onto the Supremacy Clause a distinction between self-executing treaties and non-self-executing treaties, with only the latter being judicially enforceable.
The Separation of Powers as a Safeguard of Nationalism
The separation of powers does not necessarily protect the states from having their law displaced by the federal government. Sometimes it does the opposite - it operates to perpetuate the existence of federal laws displacing state law. In such circumstances, the separation of powers is an obstacle to the devolution of legislative authority to the states. Consider the requirements of bicameralism and presentment. Bradford Clark is correct to note that the procedural requirements specified in the Constitution for federal law-making were designed to give a large voice to the states. At the beginning of our history, when the only laws in existence were those of the states, these procedural requirements operated to protect state law from displacement. But, once state law has been displaced by federal law, the requirements of bicameralism and presentment may operate to perpetuate the federal law and thus hinder the devolution of power to the states. The requirements of bicameralism and presentment can thus be either friend or foe to state authority. The fact that the procedures for federal lawmaking are the same whether the federal law would displace state law or devolve power to the states shows that, to the extent they make federal law-making difficult, they operate not to safeguard federalism, but to safeguard the status quo - whether that status quo is pro-state or pro-federal.But the Constitution does not just make federal law-making difficult. It also makes federal law-making easy - at least compared to the regime it replaced (and others that might have been adopted). The Founders sought a balance - a regime that made federal law-making difficult but not too difficult, easy but not too easy. Thus, it might equally be said that the separation of powers safeguards nationalism. Clark's principal doctrinal claim is that the Constitution's specification of lawmaking procedures precludes the recognition of less onerous processes for making federal laws. The analysis just sketched suggests that the validity of this claim does not rest on whether these procedures were designed to safeguard federalism or the status quo. Moreover, because the procedures also function to safeguard nationalism, it is equally illegitimate to require more onerous law-making procedures than contemplated by the Constitution, or to eliminate one such procedure, such as by denying treaties the force of preemptive federal law. Finally, recognition that the constitutionally contemplated law-making procedures are exclusive leaves many of the most important questions unresolved, such as (a) whether the Constitution itself implicitly displaces state legislative authority in certain areas (such as foreign relations or interstate commerce); (b) how broad a preemptive effect to give federal statutes and treaties; (c) whether and under what circumstances statutes or treaties may authorize the Executive Branch to articulate preemptive federal rules; (d) whether judicial decisions erroneously concluding that state law has been displaced by statute, treaty, or federal common law should be overruled; or even (e) whether the Constitution contemplates categories of preemptive federal law not listed in the Supremacy Clause (such as customary international law).
Make Congress Speak Clearly: Federal Preemption of State Tort Remedies
This Article argues that when such statutory ambiguity exists, courts should be extremely wary of finding congressional intent to preempt. The relative judicial willingness-reflected in Cipollone-to find preemption, even when Congress has not made its intent unmistakably clear, threatens to erode bedrock principles of federalism. Historically, clear statement rules have been applied to legislation that threatened to alter the constitutional balance inherent in our system of federalism. Applying these interpretive rules to preemption, courts should exercise extreme caution before disrupting important state interests that the states have spent many years developing though the common law. Few values are more central to federalism than the right of states to provide a compensatory remedy for their injured citizens.