Roger Hertog Program on Law and National Security
In Crosby v. National Foreign Trade Council, the Supreme Court invalidated a Massachusetts government procurement statute that barred state entities from doing business with companies that did business in Burma. The plaintiffs, an organization of private companies with foreign operations, challenged the law on constitutional and statutory preemption grounds, arguing that it improperly conflicted with federal foreign relations authority. The Supreme Court limited its holding to implied statutory preemption, finding that the Massachusetts provision improperly compromised the President's ability "to speak for the Nation with one voice." Crosby thus joined a long line of decisions in which the Supreme Court has applied the "one-voice" doctrine to address the validity of state activities impinging on foreign relations.
The "one-voice" doctrine is a myth. It finds little support in the constitutional framework, which divides the foreign relations powers among the three federal branches, and even less in the actual practice of the government. Congress and the President have full power to expressly preempt state and local interference with foreign affairs, and they have exercised that power on occasion. But even more often they have tolerated, deferred to or even encouraged state and local measures impacting on foreign affairs. Neither Congress nor the President had expressly preempted the Massachusetts law at issue in Crosby, despite ample opportunity to do so. Quite to the contrary, repeated actions by both branches suggested an intent to tolerate the Massachusetts law. In the face of our constitutional history and this substantial evidence of federal practice, it was improper for the Court to preempt the statute on its own.
This Article examines the "one-voice" myth in U.S. foreign relations and its application by the Crosby Court. Part I discusses the reasoning in Crosby and the Court's reliance on the "one-voice" doctrine. Part II reviews the history of the "one-voice" doctrine and argues that neither the constitutional text nor U.S. history supports the principle of a solitary (executive) voice in U.S. foreign relations. Part III examines contemporary U.S. practice regarding federalism and U.S. foreign relations, and contends that the United States has not only tolerated, but actively encouraged, independent state activities such as the Massachusetts Burma Law. The national government has done so both by preserving sub-national responsibility and autonomy in its treaty ratifications, and by declining to employ numerous political instruments available to both Congress and the executive to override state measures that diverge from national policy. The Article concludes that incorporation of the "one-voice" doctrine into the Court's implied statutory preemption analysis contravened the federal government's longstanding deference to the states in this area. The Court's reliance on the "one-voice" myth to strike down the Massachusetts statute merely allowed the Court to evade more searching inquiry into the legitimate state interests served by the Massachusetts procurement law and the proper balance of federal-state relations in this area. Indeed, under the most extreme interpretation of Crosby, the proposition that the nation should speak with one voice in foreign relations could be used to justify invalidating any state law that impacted U.S. foreign relations, however incidentally, regardless of the presence of a federal statute. If Crosby leads to a general practice of judicial invalidation of state and local measures that affect foreign affairs, at the behest of private litigants, regardless of the actions of the national political branches, it will reverse two centuries of constitutional practice and significantly reallocate power over foreign affairs.
Sarah H. Cleveland,
Crosby and the "One-Voice" Myth in U.S. Foreign Relations,
Vill. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1028