Citizens Not Subjects: U.S. Foreign Relations Law and the Decentralization of Foreign Policy

Nicholas Robinson, Yale University

Abstract

Localities (state and local governments) have increasingly become actors in foreign affairs as their interests become more international and many formerly domestic issues gain foreign relations implications. However, U.S. foreign relations law still finds localities role in international affairs highly suspect and strongly biases federalizing matters that pertain to international relations. As local governance becomes more internationally saturated, this jurisprudence threatens to both weaken U.S. foreign policy and turn localities from vibrant democratic communities into largely administrative units. Part I of this article details how U.S. foreign relations law undermines localities ability to be foreign policy actors. Part II plots how international trade and human rights law further circumscribe localities role in foreign relations. Part III applies traditional pro-federalism arguments to defend a partial decentralization of foreign relations in which localities and the federal government are concurrent actors in foreign affairs. It argues that courts should abandon doctrines of heightened preemption in foreign relations and instead let the executive and legislature specifically preempt a locality’s policy if it interferes with U.S. foreign policy. Part IV applies the more theoretical and jurisprudential analysis in the previous parts to five categories of localities actions that affect foreign relations. Part V finds that other proposals to promote local participation in foreign relations, like Fishkin and Ackerman’s Deliberation Day, should be encouraged as well, but they do not address larger federalism concerns that strengthening localities role in foreign relations would.