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Vanderbilt Journal of Transnational Law

James J. Pascoe

First Page

291

Abstract

On June 19, 2000, in Crosby v. National Foreign Trade Council--a much-anticipated decision involving the intersection of federalism and foreign relations--the U.S. Supreme Court struck down a Massachusetts law restricting state purchases from companies doing business in Burma. Crosby represents the Court's first consideration not only of local selective purchasing laws but, more importantly, its first consideration of the sort of subnational sanctions first developed by state and local governments during the anti-apartheid campaign of the 1980's. Thus, Crosby may pose an obstacle to human rights activism by local governments using economic sanctions to punish perceived human-rights offenders.

Because the Court's decision in Crosby was based on narrow, non-constitutional grounds, however, it probably will not stand as the final word on foreign policymaking by state and local actors. Indeed, the question of the extent to which the Constitution constrains local foreign policymaking remains unresolved, and the debate over this issue continues unabated. This debate has resulted in the formation of two camps: the majority, or conventional, view and the minority, or revisionist, view.

Adopting the arguments of the revisionist camp, this Note contributes to the debate by proposing a new approach to balance re-emergent federalism concerns against the need for a unified and consistent national foreign policy. As long as the Supreme Court continues to endorse a legitimate role for the states in domestic affairs, pressure will mount from commentators, local governments, and activists for the Court likewise to return to an understanding of foreign affairs that is closer to that which prevailed during the founding and first century of U.S. history. Furthermore, globalization and the growing ability of nations to target their retaliation against subnational actors have greatly weakened the functional argument for abrogating states' rights in the field of foreign affairs.

Given these trends, this Note argues that despite the setback of Crosby, it seems only a matter of time until the tide turns, and courts and commentators endorse a framework of foreign affairs law analysis more closely resembling that which prevailed in the United States for much of its history.

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