Difference between revisions of "Foreign Affairs and Federalism"

From Federalism in America
Jump to: navigation, search
 
(4 intermediate revisions by one other user not shown)
Line 1: Line 1:
−
Federalism has played a major but little-noticed role in U.S. foreign policy. Its greatest successes in this sphere, paradoxically, were in eliminating foreign policy among the founding states of the United States and in removing the territories it subsequently absorbed from the realm of foreign policy. These developments, which came in the early period of the Union, are usually not conceived of as foreign policies; but for Americans who did so conceive of them, they provided models for later applications of federalism in external diplomacy.
+
[[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 [[U.S. Constitution|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 Constitution obviated the need for a foreign policy on the part of the individual states of the union, whether toward other countries or toward one another. The Articles of Confederation had forbidden separate state foreign policies, but the temptation remained; the stronger union after 1787 eliminated the temptation. Similarly, the Constitution, while unable to prevent civil war between the northern and southern regions of the Union with their different forms of society, eliminated the danger of war between individual states—an impressive accomplishment as settlers moved westward where the old colonies had overlapping claims.
+
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.
  
−
Technically, federalism made foreign policy complicated. Under the Confederation, important treaties of the union were disobeyed by states, making diplomacy difficult. The Constitution resolved this problem but still kept diplomacy difficult. By separating legislature from the executive, it made the ratification of treaties uncertain compared to other countries and weakened the coherence of foreign policy. As a bargain between states that did not always trust each other—Southerners feared treaties might betray their interests in the Mississippi—it imposed a two thirds requirement on Senate ratification of treaties. John Hay, a Neo-Federalist secretary of state more than a century later, called this the irreparable mistake of the Constitution.
+
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.
  
−
However, as a compensating factor, federalism introduced a new simplifying element into foreign policy: the possibility of annexations yielding constitutionally equal states that could homogenize with the others, sparing itself the usual imperial or center-periphery tensions. The Articles of Confederation had provisions for admitting other countries by decision of nine states. The 1787 Constitution enabled a majority of both Houses of Congress to admit a new state, making the admission of a state formally easier than a treaty with a state.
+
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.
  
−
What really made rapid expansion possible, however, was that the Constitution based everyday congressional decision making on simple majorities, and executive implementation no longer dependent on the member states. This enabled the Congress and executive to keep functioning without loss of efficiency when the number of member states increased. Expansion thus occurred without any widening, deepening tension. The 1787 form of federation facilitated expansion in a manner and degree without historical precedent. And expansion was the most important element in the first century of American foreign policy.
+
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.
  
−
In other external diplomacy, Federalist ideals played a smaller role at first. The original generation of Founding Fathers dreamed of wider applications of federalism—Thomas Jefferson dreamed of an Anglo-American-Spanish confederacy, Thomas Paine of an Anglo-American-French one in the early stages of the French Revolution; James Madison and Jefferson noted the absence of any absolute limits on how far modern federalism could be extended; and Benjamin Franklin wrote to a friend in Paris that if the federal Constitution could succeed, there was no reason not to unite Europe in “one Grand Republick and Federal Union.” However, none of this went farther than personal speculations, usually private. After the 1790s, it faded away from the comments of national leaders; lesser, if still estimable, figures continued such thoughts.
+
Federalism in the United States is usually described within different eras: [[Dual Federalism|dual federalism]] (1789-1932), [[Cooperative Federalism|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.
  
−
After 1865, international federalism reemerged as a subject for speculation, this time both among national leaders such as President Ulysses Grant and among leading intellectuals—in Europe as well as the United States. A huge impression was made by the successful consolidation of the American federation following its testing in civil war, and also by the human cost of modern war.
+
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.
  
−
International unions of states were in fact developed in the twentieth century, under the pressure of the wars and the influence of federative movements. They developed on all three levels, European, Atlantic, and global. These unions took the form of confederations: the European Union, the Atlantic alliance structures (NATO, OECD, G-8), and the UN system. Confederalism thereby experienced a revival, thanks in part, paradoxically, to Federalist propaganda imbued with the Anti-Confederalist spirit of ''The Federalist Papers''.
+
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.
  
−
The founders of international institutions were in each case a mix of Federalist and Non-Federalist national leaders and officials; the institutional mixes of federal, confederal, and nonfederal elements can be traced to the balance between those who pushed for federalism and those who resisted it. The League of Nations was the child of Woodrow Wilson, who felt that the ultimate goal was world federalism and the League was the first step; the idea was pioneered by a League to Enforce Peace, a public movement whose guiding spirit, Hamilton Holt, was a world Federalist. NATO was negotiated by Atlantic Federalists such as John Hickerson and Theodore Achilles of the U.S. State Department, and their counterparts in other countries such as Lester Pearson of Canada, as well as by Non-Federalists in the United States and other governments such as Dean Acheson. The European Community (EC) was negotiated overwhelmingly by Federalists, and so was able to include in its founding treaties a Federalist commitment to “an ever closer Union of the European peoples,” a goal to which it has increasingly approximated itself, becoming the European Union (EU) in 1992.
+
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.
  
−
The United States played a central role in promoting these international organizations and their federal features. Woodrow Wilson was only the first to do so. The Marshall Plan used its funds to pressure Europeans to form an economic federation; it spawned the Organization for European Economic Cooperation (OEEC), the latter serving as one of the most fertile of international organizations: father-in-law to the EC, direct father to the OECD, and uncle to NATO, which took many of its personnel and practices. The CIA helped finance the European Movement, which in turn spawned the Hague Congress and Council of Europe and backed Jean Monnet in forming the EC.
+
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 [[Reagan, Ronald|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.
  
−
Monnet himself always worked closely with the United States, starting out in World War I as an organizer of the Atlantic alliance, and forming close liaisons in the interwar years with figures such as William Clayton and John Foster Dulles—both Federalists. Clayton wanted an economic federation of Europe within an Atlantic political federation and a world of free trade leading to eventual world federation. Dulles advocated a complete European federation within an Atlantic confederation or federation, and eventual world federation. Clayton, as undersecretary of state for economic affairs, helped negotiate the Bretton Woods institutions and wrote the memo on the economic collapse of Europe that led to the Marshall Plan. He personally insisted to European leaders that the funds would flow only if they set up a permanent joint organization: thus the birth of OEEC. Dulles guided Senator Arthur Vandenberg, who sponsored the bipartisan resolution laying the ground for NATO, and as secretary of state pushed hard in 1953–54 for the Europeans to form a full federation. His idea of liberation drew on the Federalist nucleus approach. He remains respected in Europe even if usually condemned in the United States on left-right grounds.
+
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.
  
−
These individuals did not operate in a vacuum. They could play pivotal roles because there was a large milieu supporting federalism in American foreign policy thinking. This milieu had grown for nearly a century. Later it shrank in the 1960s, and American federative initiative shrank with it. The primary American role in promoting international organization and federalism was a consequence of American ideals and of the enormous emerging power of the United States—itself credited to its rapid federal expansion, bringing it to the point at which, by 1890, it surpassed all European powers save Russia in population, and had a larger active loyal citizenry than any country anywhere. It entered into the heart of world politics only then, in the 1890s. From the start it sought a moral orientation for the use of its power, looking for something more relevant to an interdependent world than classical realpolitik. Its ideals of democracy and federalism provided its two most important motifs for moralizing foreign policy in the twentieth century.
+
In ''Perpich v. Department of Defense'' (1990), the [[Supreme Court of the United States|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 [[Bush, George H.W.|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.
  
−
The two motifs became intertwined. The confederalism of Woodrow Wilson was part of his plan to “make the world safe for democracy”; the federalism of the 1940s was meant to stabilize democracy and avoid new Weimars—in effect, to make democracy safe for the world. Federalism was envisaged as making a success of democracy in central and southern Europe where before it had always been problematic; democracy in turn was a criterion for membership in the federative unions. This combination of roles was applied in the EU as well as NATO. While democracy has been the most vocal of American political exports, federalism has been comparably important in practice.
+
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.
  
−
For nearly all Federalist movements from the 1860s to the 1940s, whether in Europe, the United States, or elsewhere, the inspirational point of reference was the American union and its bible, ''The Federalist Papers''. Those Papers had argued that the new 1787 form of federation could eliminate rivalry and war between its member states, could free democracy of its traditional penchant for extremism and instability, could overcome the frailties of previous confederations, and could unite the freedom and expanse of federalism with the efficiency of the modern central sovereign state—all matters of greatest importance for international politics. The United States seemed to bear out in practice these happy predictions.
+
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 Civil War, to be sure, served as warning as well as inspiration: warning, in showing that Union does not eliminate all dangers of war; yet inspiration, in showing that the Union, with its strong form of federal entities elected by the people, could grow roots deep enough to endure a rift running straight through its body politic and heal with unusual rapidity. The warning led some Federalists, often called “regionalists,” to be cautious; they generally restricted their proposed unions to countries with similar democratic regimes and societies with similar forms and levels of development. Some of them salvaged a hope for ultimate world federation by leaving a door open for others to join after meeting the standards; this was the “nucleus” idea, modeled rhetorically on the United States’ expansion from 13 states to 50. World Federalists gave a different answer to the warning, arguing that technology and globalization were rapidly erasing distinctions, and were making interdependence so great and war so costly that the dangers of remaining separate had become greater than the dangers of federation on a global scale.
+
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.
  
−
The UN system reflected the globalist approach; the EU and NATO reflected the regional nucleus approach. NATO included in its founding treaties the provision of leaving a door open to later emerging democratic states to join; the EC treaty called emotionally upon all free Europeans to join in its project. Realists and neutralists argued that this would only alienate those left out and lead to counterunions like the Warsaw Pact. Nevertheless, the EU and NATO gradually attracted all countries in their neighborhood to wish to join, including by the 1980s their enemies; the prospect of joining played a role in motivating the Soviet bloc countries to abandon communism and to hope to be able to succeed as democracies.
+
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.
  
−
The American Federalist roots of contemporary international confederacies raise a question of whether they have a genetic code of evolving toward modern federation. In the case of the EU, this seems plausible; the trend toward federation has accelerated since 1989. Elsewhere such a telos has been less in evidence; the Atlantic and global institutions have continued to evolve and in some respects deepen, but more slowly and without clear direction. The slowdown correlates to the decline of American support for international federalism since the Vietnam War and the rise of the “small is beautiful” philosophy.
+
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.
  
−
The decline of the goal of federalism in American foreign policy has continued, with ups and downs, for several decades; it may or may not be permanent. The rise of international federalism in American thinking and policy proceeded even longer. It was propelled by pride in the American political innovation and by increases in interdependence, factors that have not disappeared.
+
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.
  
−
In view of the depth of national sovereignty and identity, and the profound differences between national societies with collective corporate achievements to defend, an endpoint of modern federation seems unlikely for most international organizations: what worked for a union of British colonies may not be appropriate for a union of historical nations. Yet in view of ever-accelerating growth of technology and interdependence, it seems that some form of efficient federalism must eventually be achieved. If international federations do emerge, they will come after a process already much lengthier than the Federalist movements had anticipated in their idealization of the U.S. Constitutional Convention, and take forms unique in many respects. Nevertheless they may, like the EU, incorporate some basic principles of the modern national federation pioneered in the United States, such as the direct election of federal representatives and direct legal obligation of citizens to federal authorities.  
+
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.
  
−
==== Ira Straus ====
+
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.
  
−
Last updated: 2006
+
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.
  
−
SEE ALSO: [[Commerce with Foreign Nations]]
+
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.
  
−
[[Category:Policy Areas]]
+
==== Samuel Lucas McMillan ====
 +
 
 +
Last updated: March 2018
 +
 
 +
{| class="wikitable"
 +
|-
 +
| '''BIBLIOGRAPHY:'''
 +
Swaine, Edward, and Earl H. Fry. 2000. "The Expanding Role of State and Local Governments in U.S. Foreign Affairs." CrossRef Listing of Deleted DOIs30, no. 1: 249. doi:10.2307/3331132; Henkin, Louis. 1996. "Foreign Affairs and the United States Constitution."  doi:10.1093/acprof:oso/9780198260981.001.0001; Kuznetsov, Alexander S. 2015.Theory and Practice of Paradiplomacy: Subnational Governments in International Affairs. London: Routledge; McMillan, Samuel Lucas. 2012.The Involvement of State Governments in U.S. Foreign Relations. New York: Palgrave Macmillan; Sager, Michelle. 2002. One Voice or Many: Federalism and International Trade. New York: LFB Scholarly Publishing; Tavares, Rodrigo. 2016. Paradiplomacy: Cities and States as Global Players. Oxford: Oxford University Press.
 +
|}
 +
 
 +
SEE ALSO: [[Commerce with Foreign Nations]], [[Economic Development]], [[Federal-State Relations]], [[Intergovernmental Relations]]
 +
 
 +
[[Category:Policy Areas]], [[Category: Intergovernmental Relations]]

Latest revision as of 23:09, 4 July 2018

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.

Samuel Lucas McMillan

Last updated: March 2018

BIBLIOGRAPHY:

Swaine, Edward, and Earl H. Fry. 2000. "The Expanding Role of State and Local Governments in U.S. Foreign Affairs." CrossRef Listing of Deleted DOIs30, no. 1: 249. doi:10.2307/3331132; Henkin, Louis. 1996. "Foreign Affairs and the United States Constitution." doi:10.1093/acprof:oso/9780198260981.001.0001; Kuznetsov, Alexander S. 2015.Theory and Practice of Paradiplomacy: Subnational Governments in International Affairs. London: Routledge; McMillan, Samuel Lucas. 2012.The Involvement of State Governments in U.S. Foreign Relations. New York: Palgrave Macmillan; Sager, Michelle. 2002. One Voice or Many: Federalism and International Trade. New York: LFB Scholarly Publishing; Tavares, Rodrigo. 2016. Paradiplomacy: Cities and States as Global Players. Oxford: Oxford University Press.

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

Retrieved from "http://encyclopedia.federalism.org/index.php?title=Foreign_Affairs_and_Federalism&oldid=1938"