The Role of States and Cities in Foreign Relations
American Journal of International Law, Vol. 83, No. 4, pp, 821-839, October 1989
13 Pages Posted: 23 Mar 2010
A major purpose of the U.S. Constitution was to place control of foreign relations firmly in the hands of the national government. Yet reports indicate than more that 1000 U.S. state and local governments are participating in foreign affairs. This article describes the current situation and indicates and discusses some of the legal and policy factors relevant to assessing the propriety of state and local government involvement in foreign affairs.
The article first describes the U.S. constitutional and legal prescriptions and constraints on state and local involvement in matters relating to foreign affairs and, in contrast, those areas in which such activities are – at least, unless pre-empted by Congress or the Executive – constitutionally permissible. Then, with respect to those areas where such state and local participation is arguably permissible, it presents the arguments for and against such participation. The arguments against such participation include: (1) the need for our nation to have a unified and coherent foreign policy – to “speak with one voice”; (2) the possibility that state or local activities may impede, frustrate or embarrass our foreign relations; (3) the inconsistency of such locally determined activities or policies with our over-all national democratic tradition; and (4) state and local governments’ likely lack of expertise, information and resources to make sensible judgments about complex international relations issues. The arguments for such participation include: (1) the public interest in allowing state and local governments and their constituents to promote legitimate local concerns and interests and to express their views on foreign policy issues of relevance and importance to them; (2) the fact that most such activities under discussion are not intended to and do not have any significant effect on foreign governments or their citizens or U. S. foreign relations; (3) the argument that such local involvement arguably strengthens rather than weakens our democratic process; and (4) the probability that the kinds of international issues with which state or local governments are concerned do not usually require special expertise or information. The article, concludes by suggesting that: (1) state and local activities relating to foreign affairs vary greatly and need to be analyzed and assessed separately; (2) in practice, few such activities have a purpose, significance or continuity likely to cause serious foreign relations problems; (3) at least some of these issues may implicate significant freedom of speech and petition values; (4) if state or local action threatens or causes serious interference with foreign relations, it should be, in the first instance at least, for Congress and the President to decide whether to pre-empt it; (5) as a practical matter, state and local governments themselves should take principal responsibility for ensuring that their activities stay within constitutionally permissible and appropriate bounds; and (6) as the Constitution enters its third century, there seems room for a more tolerant, flexible and cooperative attitude toward state and local involvement in foreign relations, and for ordinary citizens, through the governments closest to them, to participate more meaningfully in the formation and carrying out of foreign policies that deeply affect their lives.
Keywords: U.S. Constitution and Division of Powers, Federalism, U.S. foreign relations, U.S. foreign affairs, state and local involvement in foreign affairs, control of U.S. foreign relations
JEL Classification: K40
Suggested Citation: Suggested Citation
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By Andrew Adler