SWAINE TO PRINTER.DOC 09/21/00 12:58 PM Duke Law Journal VOLUME 49 MARCH 2000 NUMBER 5 NEGOTIATING FEDERALISM: STATE BARGAINING AND THE DORMANT TREATY POWER EDWARD T. SWAINE† ABSTRACT The orthodox view that states have no role in U.S. foreign relations is not only inconsistent with their place in the modern global econ- omy, but the constitutional basis for a “dormant” bar on state partici- pation—that is, absent a controlling federal statute or treaty—is ob- scure. Revisionist scholarship and recent Supreme Court case law suggest that Congress alone should decide when the states must stay out of foreign relations. In this Article, Professor Swaine argues that both the orthodox and revisionist views neglect an alternative basis for a judicial role—the Treaty Clause, enforced through the dormant treaty power. The text, structure, and original understanding of the treaty power establish two important principles of continuing validity. First, the President was to have an independent and substantive authority to negotiate on behalf of the United States, the better to secure advantageous treaties and avoid perilous entanglements. Second, state interference with this ne- gotiating authority, even prior to the conclusive adoption of a federal treaty or statute, was unlawful. † Assistant Professor, Department of Legal Studies, The Wharton School, University of Pennsylvania. I would like to thank Jack Goldsmith, Eric Orts, Richard Shell, Peter Spiro, and Alan Strudler for their generous suggestions and constructive criticism, as well as Elena Bo- jilova, Charisa Tak, and Scott Wilson for their research assistance. 1127 SWAINE TO PRINTER.DOC 09/21/00 12:58 PM 1128 DUKE LAW JOURNAL [Vol. 49:1127 Treaty Clause exclusivity is best maintained by a judicially en- forced dormant treaty power barring the states from bargaining with foreign powers, including indirect bargaining through measures that are contingent on foreign government policies—such as the Massa- chusetts law targeting companies doing business with Burma. How- ever, state activities that incidentally have effects overseas would not be precluded, and the jurisprudence must be informed by the original rationales for federal exclusivity and by the President’s discretion to exempt state activities posing no threat to federal functions. TABLE OF CONTENTS Introduction..........................................................................................1129 I. The Dormant Doctrines of the Federal Monopoly ...................1141 A. The Federal Foreign Affairs Power .................................1142 B. The Dormant Foreign Commerce Clause.......................1146 C. Why the Dormant Doctrines Are . Dormant .............1150 1. The Problematic Role of the Judiciary.......................1151 2. The Problematic Role of the Political Branches .......1154 II. The Dormant Treaty Power.........................................................1162 A. The President’s Treaty Power...........................................1162 1. Text and Structure.........................................................1165 2. Understanding at the Founding...................................1169 a. The formal evolution from the Articles.................1169 b. Pre-constitutional experience and its diagnosis.........................................................1174 3. The New Constitution and the Horizontal Scope of the Treaty Power .........................................1181 B. The Treaty Power’s Relation to State Authority ...........1193 1. Text and Structure.........................................................1194 2. Understanding at the Founding...................................1198 3. The New Constitution and the Vertical Scope of the Treaty Power..............................................1211 III. Reconsidering the Dormant Treaty Power ................................1236 A. Is the Dormant Treaty Power Antiquated?....................1237 1. A New International Function for States?.................1237 2. A New Domestic Function for States? .......................1242 B. Does Positive Political Authority Suffice?......................1246 1. The General Argument Against Judicial Intervention ......................................................1246 2. Positive Political Authority and the Dormant Treaty Power ....................................................1250 SWAINE TO PRINTER.DOC 09/21/00 12:58 PM 2000] NEGOTIATING FEDERALISM 1129 C. The Dormant Treaty Power and the Proper Scope of State Authority...................................................1254 1. Adapting Dormant Foreign Relations Preemption........................................................1255 a. Effects testing ...........................................................1255 b. Purpose review .........................................................1258 2. An Act-Oriented Approach: Precluding State Bargaining.........................................................1261 3. The Judicial Function of Positive Political Authority...........................................................1274 Conclusion ............................................................................................1278 INTRODUCTION Everyone used to agree that state and local governments had no role to play in U.S. foreign relations.1 The Constitution may have been unclear about the precise responsibilities given to the President, the House, and the Senate, but together, somehow, they held a fed- eral monopoly on foreign relations2—or, as the Supreme Court occa- sionally put the matter, there was “one voice” in U.S. foreign rela- 1.See LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 150 (2d ed. 1996) (“At the end of the twentieth century as at the end of the eighteenth, as regards U.S. foreign relations, the states ‘do not exist’.”); LAURENCE TRIBE, AMERICAN CONSTI- TUTIONAL LAW § 4-6, at 230 (2d ed. 1988) (“[S]tate action, whether or not consistent with cur- rent federal foreign policy, that distorts the allocation of responsibility to the national govern- ment for the conduct of American diplomacy is void . .”); Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 VA. L. REV. 1617, 1632 (1997) [hereinafter Goldsmith, Fed- eral Courts] (noting “a remarkable consensus about the legitimacy of the federal common law of foreign relations”); Harold G. Maier, Preemption of State Law: A Recommended Analysis, 83 AM. J. INT’L L. 832, 832-33 (1989) (“The consensus today is that the central Government alone may directly exercise power in foreign affairs. Most current controversy about the foreign affairs power concerns its distribution among the federal branches, not whether it resides in the nation rather than the states.”). Of course, saying “everyone” invariably sounds like hyperbole. But see infra note 320 (quoting John C. Calhoun’s endorsement of treaty power exclusivity). For brevity’s sake, I will often refer solely to “states” as a shorthand for both states and subordinate political entities like counties and municipalities. 2. Thus, when Edward Corwin famously described a constitutional “invitation to struggle for the privilege of directing American foreign policy,” he assumed that only the Congress and the President were invited. Compare EDWARD S. CORWIN, THE PRESIDENT: OFFICE AND POWERS, 1787-1984, at 201 (Randall W. Bland et al. eds., 5th ed. 1984) [hereinafter CORWIN, THE PRESIDENT] (“[T]he Constitution, considered only for its affirmative grants of powers ca- pable of affecting the issue, is an invitation to struggle for the privilege of directing American foreign policy.”), with EDWARD S. CORWIN, NATIONAL SUPREMACY: TREATY POWER VS. STATE POWER passim (1913) [hereinafter CORWIN, NATIONAL SUPREMACY] (describing the supremacy of national treaty authority). SWAINE TO PRINTER.DOC 09/21/00 12:58 PM 1130 DUKE LAW JOURNAL [Vol. 49:1127 tions, and it was the reassuring bass of Uncle Sam.3 But there were always two nagging problems with the orthodoxy of a federal monopoly: it never really existed, and it was never clear why it should. States have always had an effect on U.S. foreign rela- tions,4 and they are now bolder than ever. Some state activities sound exactly like diplomacy. In addition to symbolic political ties5 and rou- tine economic transactions,6 states establish offices overseas, launch trade and investment missions, sign bilateral and multilateral agree- ments, and participate in international summits.7 Even ostensibly local 3. For modern canonical expressions of this view, see Japan Line Ltd. v. County of Los Angeles, 441 U.S. 434, 449 (1979) (noting “the Framers’ overriding concern that ‘the Federal Government must speak with one voice when regulating commercial relations with foreign gov- ernments’” (quoting Michelin Tire Corp. v. Wages, 423 U.S. 276, 285 (1976)); Zschernig v. Miller, 389 U.S. 429, 436 (1968) (finding unconstitutional “state involvement in foreign affairs and international relations—matters which the Constitution entrusts solely to the Federal Gov- ernment”); id. at 441 (“[E]ven in absence of a treaty, a State’s policy may disturb foreign rela- tions.”); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 317 (1936) (“The Framers’ Convention was called and exerted its powers upon the irrefutable postulate that though the states were several their people in respect of foreign affairs were one.”). For prior cases, see in- fra note 331. 4. See generally JOHN M. KLINE, STATE GOVERNMENT INFLUENCE IN U.S. INTER- NATIONAL ECONOMIC POLICY 16-19 (1983) (providing an historical