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Is it Appropriate, Under the Constitution, For State and Local Governments to Weigh in on the War on Terror and a Possible War with Iraq?


Friday, Mar. 07, 2003

What role do state and local governments have, if any, in shaping American policy on the war on terror and the impending war with Iraq? This fundamental question lies at the core of a movement that has swept across America in recent months.

During this period, state houses, city halls, and even school boards have entertained proposals to register their views on foreign affairs and the war on international terrorism. Many of these proposals have been adopted.

The Specifics of the State and Local Proposals

To see what turns on our answers to these questions, a bit of background on the proposals themselves may be helpful. Just two weeks ago, the Los Angeles city council voted to "oppose unilateral war in Iraq." Although Los Angeles is the biggest city to take such a stance, it is surely not the only one. Close to 100 other American cities and towns, including San Francisco, Chicago, Detroit, and Philadelphia, had already passed similar resolutions condemning a war by the U.S. - at least if it is without the support of the U.N. or allies.

Likewise, a number of local governments have denounced the USA Patriot Act - the law Congress passed in the wake of 9-11 to enhance anti-terrorism law enforcement. Towns like Oakland, Berkeley, and Boulder, Colorado, in addition to the larger cities of San Francisco and Detroit, have approved such measures.

Typically, these resolutions harshly criticize Congress's and the Bush Administration's policy. Many also go so far as to call upon local agencies not to aid federal authorities in investigations and enforcement actions that might jeopardize civil liberties.

Should State and Local Governments Mind Their Own Business?

These measures have not been enacted without a fight. They have had to overcome, among other things, the deep-seated notion that local lawmakers have no business meddling in national and international affairs. On this view, locals should stick to the truly day-to-day narrow issues on which they campaigned and were put in office.

On the surface, at least, this intuition - that state and local government should stick to state and regional affairs - appears to have its roots in our Constitution itself. As Jack Goldsmith wrote in a column for this site almost three years ago, "it may [at first] seem incongruous that states [and their subdivisions] would enjoy any role in foreign affairs. The Constitution, after all, was designed to ensure that the federal government had sufficient authority to check state foreign relations activities." That is why, as Goldsmith explained, many people welcome Supreme Court rulings that "help put an end to state and local efforts to make foreign policy."

It is true that federal law - both the Constitution itself and laws Congress enacts under it - does impose some limits on what states can do in the international realm, even as globalization has drawn the local and international spheres much closer together. But federal law does not, and cannot, cut state and local government out of the picture altogether.

Indeed, even after we take into account the ways in which localities may be constrained, they still are important actors in the foreign-affairs policymaking process.

One important limitation on state and local activity comes from affirmative laws and policies that the federal government has adopted that displace - or "preempt," legally speaking - local measures.

An example of this can be found in an important Supreme Court case from a few years back, the Crosby decision, involving American policy towards Burma (now known as Myanmar.) In that case, the Court invalidated a Massachusetts statute that directed state agencies not to purchase goods and services from any companies doing business in Burma, a nation with a notoriously bad human rights record.

In support of its result, the Supreme Court reasoned that Congress' own sanctions imposed on Burma - through a federal statute - represented Congress' careful choice about how much, and in what ways, Burma should be incentivized to change its evil ways. The federal government, the Court pointed out, had acted affirmatively in this area by imposing the sanctions. And, the Court believed, commercial activity by Massachusetts might have interfered with the commercial system Congress was trying to establish.

For these reasons, the Court held that Massachusetts could not implement its commercial boycott. In the conflict the Court saw between the sanctions and the boycott, federal law - the sanctions - had to prevail.

I think the Burma case may have been wrongly decided. Congress may very well have the power to regulate the choices that a state makes when it acts, as Massachusetts was there, in its capacity as a consumer (rather than as a regulator of private consumers). Nevertheless, I think the evidence that Congress' will was being frustrated by the Massachusetts policy is pretty thin.

After all, the federal law implemented by President Clinton in 1997 was itself anti-Burma - sending a message that America wanted the human rights violations to end. This American goal was reinforced, not undermined, by the Massachusetts policy, so I am not sure I see the conflict the Court did. States typically have the power to go further than federal law, but in the same direction; for instance, their antidiscrimination laws can be more protective than federal ones. Had Massachusetts, in its purchasing policies, favored companies that did business in Burma, in contrast, the conflict would have been more clear.

Here's another reason to think there was not really a conflict: The Massachusetts law was on the books when Congress acted (and indeed might have helped put the issue on Congress' agenda). Yet Congress did not say anything negative about the Massachusetts law when the federal law was passed.

Given these arguments, the conflict between federal and Massachusetts law relating to Burma was, at a minimum, not obvious. Nor was Congress' desire to use the federal law to preempt Massachusetts law.

As a result, it is surprising that a Supreme Court as attentive to federalism as ours is did not err on the side of upholding state law in the face of the federal measure - which, after all, did not expressly criticize that state law, or necessarily prevent its enforcement.

In any event, whether the Crosby decision was right or not, it does not resolve the issue of the states and localities expressing their views on Iraq and the war on terrorism. That's because in Crosby the Court stopped short of holding that state regulation of foreign affairs is invalid even in the absence of some affirmative preemptive action by the federal government.

In other words, the Court did not hold, as it was urged to hold, that the Constitution itself - even without the federal statute - would have invalidated the Massachusetts law. For that reason, as Jack Goldsmith observed, the Crosby ruling "has no implications for state foreign relations activities beyond state laws regulating transactions with Burma."

This is not to say, of course, that the Constitution itself would never impose limits on state and local attempts to affect international affairs. For example, suppose the State of New Jersey enacted a statute that said that "any company that makes arms that the U.S. government is planning to use in the war on Iraq cannot incorporate or sell to any customers in our state."

Such a law would clearly burden interstate and international commerce so as to be preempted by the Constitution itself. The Constitution gives Congress the authority to regulate such commerce, and in doing so, displaces conflicting state legislation on the topic.

Importantly, though, my hypothetical New Jersey law - unlike the Massachusetts statute at issue in Crosby - regulates private industry, by telling them where they can incorporate and do business. A state has much less constitutional latitude to regulate private businesses and customers than it does to act as a conscientious customer itself, as Massachusetts chose to do with its Burma boycott.

A Local Duty to Pitch In? Not Necessarily.

What are we to make of those local resolutions recently passed, like San Francisco's, that direct local agencies not to assist the feds? Do states and localities have latitude to opt out of cooperation? To a large extent, they do.

The Supreme Court, in a series of cases from the mid-1990's, has made clear that state and local governments cannot be required to implement a federal law or program on behalf of the national government if they don't want to. So, for example, the Court ruled that Congress could not require local sheriffs to conduct the background checks that the Brady Act gun control law called for prior to someone being allowed to purchase a certain kind of gun.

If Congress wants such background checks, the Court opined, it can certainly employ federal personnel to conduct them, or it can induce states to cooperate by providing generous federal funding conditioned upon their help. But the federal government cannot require unwilling state personnel to do federal law enforcement. The idea that the feds cannot "commandeer" or "conscript" states to do federal bidding, the Court said, is central to our system of federalism.

The extent to which the "anti-commandeering" or "anti-conscription" principle applies when the feds are asking only for information the locals have already compiled is far from clear.

Competing Visions of Federalism

That ambiguity leads, in turn, to a very basic question: What is the vision of federalism that leads us to prevent the feds from commandeering the states really all about?

Justices O'Connor and Scalia - the authors of the major opinions in the area - have talked about "accountability" problems that arise when the feds coerce the states. Suppose, for instance, that states are forced to implement a federal policy of tracking down and interrogating aliens from Middle East countries. Suppose also that the public does not like such policies. The accountability concern is that the populace will blame the state implementers, rather than the federal policy makers - who after all, are really the ones who should take the heat.

I've never been entirely sold on this accountability reasoning. In the end, I think American federalism - with its marbled layers of government, from fire districts to water boards to cities to counties to states to federal agencies - is not really designed to make it easy for people to figure who is to blame for bad policy decisions. So being a stickler on the accountability issue in this one instance, when accountability is largely ignored in the Constitutional framework, seems odd.

For example, the Supreme Court allows Congress to condition federal funds on state enforcement assistance of federal programs. When states administer such federal programs, are people really aware that the only reason they may be doing so is that they want federal funding for other projects? I doubt it.

If we really wanted easy voter accountability, we probably wouldn't have as many overlapping levels of government as we do. Indeed, we might not have a federal system, in which federal and state activities and jurisdictions inevitably coincide, in the first place.

Nevertheless, I think federal commandeering may be bad for other reasons having little to do with accountability. For instance, federal commandeering of state legislatures may hold the potential for highjacking state governmental agendas. If the state lawmaking bodies have to spend all their time administering federal programs, they never have the time or opportunity to define their own message and legislative identity. That's a problem because federalism is largely about making sure that there are multiple legislative philosophies and identities out there to help the American people figure out what is best.

In this sense, our federal system sets up a healthy competition - between one state and another, and between states and the federal government - to win over the hearts and minds of Americans over what the best approach to democratic self-governance is. If one participant in a competition (the feds) can consume all the resources of its competitors (the states), that hardly seems like a fair match.

The vision of federalism I just offered values States not just for the particular policies they may adopt, but also more generally for the alternative vision of good government that they may define and advance. In a real sense, a state government - through its legislative decisions and agenda - expresses a philosophical message that is different from that being expressed by other states or the feds.

Fine and good, some may say - but not when it comes to foreign affairs. That is precisely the arena where we cannot tolerate multiple messages. To the contrary, it is the sole place where we need to "speak in one voice."

I don't think that is true. As my older brother, Akhil Reed Amar, pointed out in the Washington Post in 2000, "taken literally, [the one voice argument] offends the very basis of our system of government. Americans emphatically do not speak with one voice. Individual Americans are free to [speak out on foreign affairs]. States, too, must be free to speak out. This vital point was established early in American history, when the Virginia and Kentucky legislatures famously spoke out [in words written by James Madison and Thomas Jefferson, respectively] in 1798 against federal policies penalizing France."

The Alien and Sedition Acts of the late 18th century is one instance in which state and local government served as the point of organization for those critical of federal policies. But it is far from the only instance. Before the civil war, abolitionist forces used local governmental bodies to voice their criticisms of Southern States, as well criticism of federal laws that helped support the institution of slavery.

In some ways, state and local governments are natural places for dissidents to organize and speak. Individual protestors, acting alone, often face societal pressure and ostracism (as we see today in the case of the college woman basketball player who chooses not to face the flag during the national anthem played before basketball games.)

For precisely this reason, the Constitution goes out of its way to create, and protect, institutions where individuals who may not be able to act by themselves can come together with others to associate, organize and have their voices be heard. These "mediating" institutions - so called because they stand between the federal government and the People - include juries, churches, the militia, civic associations, and perhaps most importantly, state and local government.

This history and Constitutional context can provide some perspective when we assess whether state and local governments are acting in a constitutionally responsible manner these days, in voicing their views on the war on terrorism and the possible war on Iraq. In thinking about these issues, we would do well to reflect on why we have federalism to begin with. We should also remember the attitudes of men like Thomas Jefferson and James Madison - men who believed one needn't choose between thinking about peace or potholes.

Akhil Reed Amar is on vacation this week.

Akhil Reed Amar and Vikram David Amar are brothers who write about law. Akhil graduated from Yale College and Yale Law School, clerked for then-judge Stephen Breyer, and teaches at Yale Law School. Vikram graduated from U.C. Berkeley and Yale Law School, clerked for Judge William Norris and Justice Harry Blackmun, and teaches at U.C. Hastings College of Law. Their "brothers in law" column appears regularly in Writ, and they are also occasional contributors to publications such as the New York Times, the Los Angeles Times, and the Washington Post. Jointly and separately, they have published over one hundred law review articles and five books.

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