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01/23/2020

Paul Stephan: The Waning of the Federal Common Law of Foreign Relations
Michael Ramsey

Paul B. Stephan (University of Virginia School of Law) has posted The Waning of the Federal Common Law of Foreign Relations (THE RESTATEMENT AND BEYOND – THE PAST, PRESENT, AND FUTURE OF U.S. FOREIGN RELATIONS LAW (Oxford University Press: New York, Sarah A. Cleveland & Paul B. Stephan, eds. 2020)) (28 pages) on SSRN.  Here is the abstract:

The nationalist position, occasionally endorsed by the Supreme Court and widely embraced by foreign relations scholars, maintains that the United States must speak with one voice when dealing with the rest of the world, and that principle justifies the federal judiciary’s stewardship of foreign relations law. The premise seems compelling, but the implication is not. This chapter argues that concentrating authority in the federal judiciary to make foreign relations law in the absence of congressional enactments (either statutes or treaties) both ignores the capacity of the States to promote encounters with foreign actors and the tendency of the federal courts toward entropy, rather than coherence.

The 1987 Third Restatement of the Foreign Relations Law of the United States largely endorsed the nationalist position. Its most ambitious claim was that all international law qualifies as the law of the United States for purposes of the Supremacy Clause and the “arising under” prong of federal court subject-matter jurisdiction. In the absence of enacted federal law, it maintained, the federal courts must make rules that oust State law so as to fulfill the international legal obligations of the United States. As to other, nonobligatory bodies of law that might affect foreign relations, the Third Restatement asserted that courts must be vigilant to ensure that the States not adopt law in a way that intrudes into foreign relations.

After initially inspiring courts and scholars alike to pursue the one-voice idea, the Third Restatement later faced a revisionist critique. The Supreme Court began to limit the federal common law of foreign relations as it reined in more generally the lawmaking powers of the lower federal courts. The new Fourth Restatement follows that lead. It confirms that many important legal doctrines that affect the foreign-relations interests of the United States rest on State law, unless and until the federal political branches enact something else. According to the Fourth Restatement, the existence of plenary federal power over foreign relations does not automatically translate into exclusive federal authority.

This chapter argues that the Fourth Restatement not only captures the temper of the times, but that good functional arguments support its position. The growth of international commerce and connectivity since the 1980s has greatly increased pressure on the States to adopt laws that promote foreign contacts and business. Moreover, it has become apparent that a sprawling and diverse federal judiciary cannot pursue nationally uniform law except under stringent conditions that limit, rather than expand, judicial discretion to make law. The Supreme Court accordingly sees its task as inducing lawmaking by Congress and the executive. It pursues this goal by barring the lower courts from adopting stopgaps. As a result, the federal common law of foreign relations has shrunk and may disappear.

Agreed, and good riddance.  As argued here, the federal common law of foreign relations, as a judge-created preemption of state law outside the limits of the Supremacy Clause, is contrary to the Constitution's text and original meaning.  If a state law "intrudes" so much into foreign relations that it causes serious difficulties, Congress can override it.  If Congress, for whatever reason, can't come up with a simple majority to override, the state law stands.  That's the Constitution's design.  Madison wanted to have a council of revision to override inconvenient state laws, but he lost that argument.