States Interference In Foreign Affairs

The Supreme Court can and will take down any state rulings that interfere in foreign affairs. If an unavoidable clash happens between state and federal law, then the state law is said to be obstructed by federal law. That Congress has not preempted the states from acting in this realm does not, however, mean that the Constitution itself is also silent. In a handful of cases the Supreme Court has held that there exists a “dormant foreign affairs power” that resides exclusively within the federal government — even though Congress has said nothing. Pursuant to this doctrine, the Court has struck down state statutes that intrude into that sphere of foreign affairs which the Constitution entrusts solely to the president and the Congress. A state, the Court opined, may not

The Court has also invalidated state laws under the so-called “dormant foreign commerce clause.” The Constitution provides that the “Congress shall have Power . . . To regulate commerce with foreign Nations, and among the several States, and with the Indian tribes.” The courts have found that this provision not only grants “positive” power to Congress but also imposes “negative” limits upon the states. Obviously the foreign commerce clause does not prohibit every state law that has any effect on foreign commerce. But, as is the case with the dormant foreign affairs power, the states are not permitted to act simply because, on a particular issue of foreign commerce, Congress has remained silent. A state statute must not discriminate against foreign commerce, and it must not impede the federal government’s ability to speak with one voice in foreign