The Foreign Affairs of Federal Systems: A National Perspective on the Benefits of State Participation

Abstract

Recent debate surrounding the proper role of States in foreign affairs has largely focused on the existence and mitigation of adverse consequences of State's foreign affairs activities to the Nation as a whole. This symposium contribution, by contrast, considers the potential advantages to the Nation of state involvement in foreign affairs and, finding that such advantages exist, examines how state activities might be harnessed to reap those advantages. It will present the recent history of state participation in foreign affairs to illustrate the States' deep involvement in foreign policy matters and to present the many potential benefits thereof. After briefly considering the involvement of component states in foreign affairs in the European Union and Germany, this essay will suggest that in cases of tension between central and component state policies the major benefit of component state involvement in foreign affairs is overcoming bureaucratic inertia at the central level of governance. The doctrinal consequences for the United States of an approach centered around this recognition are that (1) States should not be categorically excluded from the foreign policy arena, (2) States must not discriminate against their sister States in the pursuit of foreign policy objectives, and (3) any positive federal policy as articulated by the political branches should be vigorously protected. The occasion for these reflections is the Supreme Court's decision last term in Crosby v. National Foreign Trade Council, in which the Court held that a federal statute preempted a Massachusetts public procurement law barring purchases from suppliers doing business in Burma. This essay suggests that Crosby is consistent with a recognition of the national benefits of state involvement in foreign affairs, and the view that States may participate in foreign affairs to the extent these benefits are realized.