Foreign Affairs and Federalism

Federalism has played a major, but sometimes overlooked, role in U.S. foreign policy. Given that the weak national government created by the Articles of Confederation produced problems in diplomacy, one might assume that the Constitution of the United States completely bars states and localities from being involved in external relations. This is not the case. Throughout U.S. history, governors and state legislatures have interacted with foreign governments, been involved in multiple areas of foreign relations, and sought to influence foreign policy that is officially controlled in Washington, D.C. In the twentieth century states and localities’ actions broadened across many policy areas and deepened in greater regularity, professionalism, and institutionalization. The level of foreign relations activities and foreign policy activism has been affected by the dynamics of American federalism and intergovernmental relations, but risen over time due to increased global interdependencies. Importantly, challenges to national control of foreign policy making and implementation are not an American phenomenon, but one shared across most federal systems.

The United States’ role in world affairs has increased over time, particularly after 1945. After World War II the United States was accepted by the international community as a global power given its economic and military strength, and American political leaders also accepted this role for the country. Greater investments in the institutionalization of American foreign policy with the creation of the U.S. Department of Defense, Central Intelligence Agency, and National Security Council in the 1940’s were followed by states beginning their own international roles in the 1950’s. Governors began to travel overseas and states opened offices abroad during this decade. Since that time, states and localities have continually sought to further their global connections and policy prowess. Their willingness to advocate for their own distinctive interests is in response to growing interdependencies aided by advances in transportation and telecommunications.

Subnational governments across the world now engage in “paradiplomacy,” a term which notes that non-central governments do not usually have the authority to conduct diplomacy. This means that “foreign relations” is a more accurate description of states’ actions rather than “foreign policy.” The phenomenon of paradiplomacy first manifested itself primarily in Canada, the United States, and Western Europe, but has spread to federal systems in South America, Asia, and Africa. Non-central governments are even challenging national governments’ control of foreign policy in some unitary systems. Thus, foreign policy today is affected by transnational actors such as non-governmental organizations (NGOs) as well as governmental actors at all levels. The changing nature of American foreign policy is within the wider context of challenges to national sovereignty.

The degree to which subnational governments affect foreign policy depends upon constitutional allowances, divisions of power, and rules as determined by legislatures and courts. These variables of autonomy are traditionally highlighted from the viewpoint of federalism studies, yet opportunity variables such as geography, economic interdependence, ideational similarities of ethnicity and religiosity, partisanship, and subnational leaders’ political ambition are also fundamental. Political culture and intergovernmental relations determine the practical aspects of paradiplomacy, such as whether or not this occurs within a framework of conflict or cooperation. Whereas federalism is more legal in nature, intergovernmental relations is more behavioral.

American federalism has both a strong division of power among branches of government as well as separation of powers that provides limitations to states and localities. These elements weaken the coherence of American foreign policy, something seen through an examination of treaties. Under the Articles of Confederation, treaties were disobeyed by the states, making diplomacy difficult. Thus, the Constitution forbids states from entering into any treaty, but it does not prohibit states from creating accords and compacts with foreign governments at the national or subnational level. This means that thousands of such agreements—some disagreeing with the policy preferences of the White House or Congress—have been signed by states and localities. The Constitution also makes treaty ratification uncertain when compared to other countries, particularly parliamentary systems. Thus, the U.S. government has been less likely to sign treaties, in part because of its federal system. This may further states’ want to pursue international accords. Variations in geography, economics, demographics, and ideology across the states also mean that governors have diverse interests in the world, further undermining the ability of Washington, D.C. authorities to speak with one voice.

Federalism in the United States is usually described within different eras: dual federalism (1789-1932), cooperative federalism (1932-1968), and wavering between coercive federalism and New Federalism (1968-present). Although some scholars argue that there are distinguishing characteristics of paradiplomacy in these eras, others argue that, particularly since 1932, there has been much blurring of responsibilities, either due to devolution of powers to states or in duplication of roles in some policy arenas.

In 1953, during a period of cooperative federalism, states began to open their own overseas offices to promote their shared interest in economic development—primarily attraction of foreign investment and promoting trade. More than 200 offices existed by 2000, but there is extensive variation in personnel type and responsibilities. Few staff remain full-time state employees, but are instead contract employees, some of whom are part-time. Contract personnel provide states (or those localities with offices abroad) with greater flexibility to adapt to changes in the market or objectives. Offices’ primary goals remain attracting investment, promoting exports, or promoting tourism, but some offices further educational and cultural linkages.

Governors’ overseas travel began in 1959. These trips increased exponentially to their peak in the 1980’s. These trips slowed down in the 1990’s and beyond because professionalized networks had been solidified and managed by overseas offices or because responsibilities for world affairs began to shift to cabinet officials such as states’ secretaries of agriculture, economic development, and state. State legislators also travel overseas, meet with their counterparts, and help with pursuits related to economic initiatives or educational and cultural linkages.

Governors’ travels abroad are sometimes a liability for American foreign policy. The State Department struggles to remind diplomats and heads of government about national control of foreign policy decision-making. Yet, because governors control some of the largest economies in the world (several states are in the top 25) and represent a population of citizens larger than many countries, it is easy to see why they are treated as having great clout while abroad. Political ambitions mean that governors do not readily remind their hosts that they are not a Head of State. More importantly, governors’ interests do not always mirror Congress, the State Department, or the White House, leading to diplomatic complications. This is also a reminder of the distrust that exists in American political culture between Washington, D.C. and the states.

Foreign economic policy is sometimes singled-out as a policy area to examine since it has been conditioned by cooperative federalism, coercive federalism (of mandates), and New Federalism. There are examples of state laws challenging imports from specific countries in the 1930’s, but the primary action of that decade is when governors, beginning with Hugh White of Mississippi, began to recruit industry. Over time governors accepted the role of chief economic ambassador and this expanded into the global arena in the 1950’s and 1960’s. Since both the national and state governments promote U.S. exports, the goals and implementation of foreign economic policy initiatives is sometimes complicated and confusing. With Ronald Reagan’s New Federalism initiatives providing less absolute dollars to states, states became incentivized to promote their own economic interests. Greater connections to Asia, particularly Japan, during this decade also led to increased international travel by governors during this time.

Even when political or ideological goals welcomed paradiplomacy in one arena, such as economic development, it shut it out in another arena, such as security. Thus, the Reagan Administration welcomed states to build networks to further global trade, but pushed back upon those governors that sought greater control over National Guard units and wants to challenge U.S. defense policy. Federal courts have placed some specific and some broader restrictions upon the ability of states and localities to challenge foreign policy over the years.

In Perpich v. Department of Defense (1990), the U.S. Supreme Court forbade governors from prohibiting the use of National Guard units when federalized by the president. This issue came up again in 2006 when the National Governors Association coordinated a letter signed by all governors requesting that President George W. Bush find a way to re-supply their National Guard units that had been deployed at large levels to Iraq and Afghanistan, leaving states unprepared for emergency management or homeland security needs. Although only a few governors have openly opposed American involvement in wars, governors in recent decades have been more prone to take political positions on matters of foreign policy defining relationships with specific countries, such as China or Israel.

Political issues in foreign policy, such as the subject of human rights, have led to federal courts putting stricter parameters in place. In Crosby v. National Foreign Trade Council (2000), the Supreme Court ruled that Massachusetts’ 1996 “Burma law” was unconstitutional. The law had placed procurement restrictions on Burma due its human rights violations. This law had been modeled after the anti-Apartheid laws that were adopted by 25 states and 164 localities in the 1980’s. Massachusetts’ law had been pushed by NGOs and, some argue, helped show NGOs that lobbying state legislators was easier than lobbying Congress. In its Crosby decision, the Supreme Court said that Massachusetts had gone further than the national government because it punished foreign and domestic companies doing business with Burma and was preempted by Congressional action—even though actions by Congress and the White House came after the Massachusetts law was enacted.

Similarly, the National Foreign Trade Council—a D.C. interest group that represents multinational corporations—sued Illinois over its Sudan act that was supported by the Sudan Divestment Task Force, an NGO that promoted divestment in funds from companies doing business in Sudan because of its genocidal actions in Darfur. The suit argued that Illinois violated the foreign affairs powers of the U.S. government, and a U.S. District Court in Illinois agreed in National Foreign Trade Council v. Giannoulias (2007). In this case Illinois seemed to admit that its law violated the Constitution’s Foreign Commerce Clause. Importantly, Congressional action and an executive order from President Bill Clinton had also taken place prior to the 2005 Illinois law.

The Supreme Court has also limited states’ ability to require that companies or banks provide information proving that they did not aid in taking resources from Holocaust victims. Multiple states have taken actions on this subject, but the Supreme Court struck down a California law (and therefore a subsequent Texas law) in American Insurance Association Inc. et al. v. Garamendi (2003). Federal courts remain concerned with field preemption (when national-level regulation is pervasive such that states and localities have no role to play) and conflict preemption (when complying with both national and state regulations is impossible). Particularly in the global economy, the latter is likely to remain a problem for states and localities that seek to shape foreign policy.

Relevant court decisions also tie states to international institutions, such as the International Court of Justice (ICJ) and the World Trade Organization (WTO). States’ actions related to crime and punishment have been discussed before the ICJ, and states’ regulations on environmental protection, human rights practices, and “buy American” rules have caused problems for the United States before the WTO. Capital punishment for non U.S. nationals has caused some disagreements between the United States and Mexico. In Medellín v. Texas (2008) the Supreme Court ruled that the Vienna Convention on Consular Relations (VCCR) is not a self-executing treaty that did not becoming binding domestic law upon its ratification by the U.S. Senate in 1969. The justices also ruled that ICJ decisions were not automatically enforceable in domestic courts. This meant that Texas could move forward with the death sentence of Jose Medellín even though the VCCR was violated.

Massachusetts’ Burma law was challenged by the WTO after complaints from both the European Union and Japan. California’s environmental protection rules and taxation regulations have caused diplomatic problems for the White House and State Department. The Office of the U.S. Trade Representative, the nation’s chief trade negotiator, has also had trouble getting governors to sign on to free trade agreements in recent years because of growing discomfort among governors and state legislators about WTO rules. Like national-level politicians, some state-level leaders use arguments about infringement of sovereignty by these international institutions. Thus, U.S. federal courts and international institutions, and some other countries’ governments have complained about American paradiplomacy or regulations at the state-level.

Even so, federal countries that border one another—such as the United States and Mexico or the United States and Canada—have paths toward cooperation through transborder associations. Many have formed over the years, whether multi-purpose or single-purpose. The associations bring subnational governments together to talk about issues such as trade and investment, immigration, border security, educational linkages, and environmental protection. The associations linking U.S. states with Mexican states or Canadian provinces operate under compacts, not treaties, and have varying degrees of institutionalization, just as transborder associations in other federal countries.

States and localities continue to expand their international networks such that these are truly global, not just focused in Western Europe and East Asia. Some governors have been pioneers in paradiplomacy—whether in building relationships with new partners, such as Brazil or India, or in tackling policies such as climate change or human trafficking. Although a governor with prior experience as a U.S. ambassador or Cabinet member might be assumed to bring a global focus to the governor’s mansion, the inhabitants of a governor’s mansion today is more likely to have international experience and to have ideas about how to distinguish the state’s interests and identity in the global marketplace. Unfortunately, long-term strategies and budget planning remain challenges for many states. And governors are not uniformly blessed with institutional structures that create consistency, coherence, and strategic vision—even if best practices on measuring international engagement have improved greatly since the 1980’s.

The lack of an integrated system of American intergovernmental relations remains a key hurdle that still concerns many states’ leaders. It also impedes coherence and consistency in American foreign relations and foreign policy. Although some progress was made on policies about attracting foreign investment during the Barack Obama presidency, many other policy areas are unclear. States and localities might also point out that it is uncertain if they should put resources toward foreign relations and international strategies due to intergovernmental challenges. It also does not help that the State Department’s intergovernmental affairs staff remains extremely small.

Globalization has both centralizing and decentralizing effects, as show in the increase of paradiplomacy as well as authoritarianism around the world. Subnational movements are sometimes related to the politics of identity (such as those in Catalonia and Scotland). The twenty-first century is likely to continue to see some tension in U.S. foreign policy due to American federalism. This is particularly the case given the view that national authorities have not been able to solve many of the biggest challenges in foreign policy, such as border security, immigration, economic security, and environmental protection. This has driven some states and localities to voluntarily bind themselves to international efforts, such as the Kyoto Protocol or the Paris Accord.

Foreign relations activities and foreign policy activities will likely remain a defining trait of American federalism. Given continued global interdependencies as well as established roles of governors as a default global ambassador, this remains an important topic to study.

SEE ALSO: Commerce with Foreign Nations, Economic Development, Federal-State Relations, Intergovernmental Relations