Units of a Federal State Example Flashcards
What is the role of territorial units in an international matter and where is this typically regulated?
Subnational territorial units are not merely administrative divisions of a central government but actors in their own right. The governing decisions ought to be made by officials who are closely connected to the people that will be affected.
What are the two clear principles that international law articulates in this regard?
(1) Customary Law- A state is legally responsible for all of the acts of its political unit
(2) Art. 27 of the Vienna Convention on the Law of Treaties- a treaty violation is not excused just because the violative conduct is lawful under a state’s internal law including the law of any substantive unit.
What was the human rights situation in Myanmar and what issues did that raise in relation to States of the United States?
Burma had a deplorable human rights record and in response Massachusetts enacted a statute that barred the state from buying goods or services from any person or company doing business with Burma. A list of prohibited companies was established. Many U.S. allies (Japan) and EU) protested the law saying that it violated the WTO agreement where state parties must ensure that their governmental entities did not engage in discriminatory commerce. EU filed an amicus brief in support of the National Foreign Trade Council (a company that was on the prohibited list) when the NFTC sued Massachusetts in federal district courts saying that the Massachusetts law infringed on the federal government’s foreign powers.
What about South Africa? What was the issue that led to the OLC Opinion on Constitutionality of S African divestment statutes? What, according to the opinion, did Zschernig and Clark set out as the applicable balancing test?
Facts: U.S municipalities made ambitious attempts to put economic pressure on the South Africa for its system of apartheid. These acts reflected that the Federal government was too relaxed when it came to sanctioning the South African country. The U.S Department of Justice Office of Legal Counsel issued an opinion regarding the sanctions imposed by U.S. state and municipalities
Law: The court did not apply the expansive principle known as “dormant foreign affairs preemption” that was decided in Zschernig. In that case the court invalidated an Oregon statute that provided conditions for a nonresident alien to inherit land because it had a “direct impact on foreign relations” and could adversely affect the power of the central government. This case was different from Clark, where the court upheld a statute similar to Zschernig, because the California statute had indirect effect.
Clark= indirect influence= routine reading of foreign law (upheld)
Zschernig= direct influence= state courts evaluate the credibility of foreing representative s and engage in persistent “judicial criticism” of foreign law.
Holding: State and local anit-apartheid divestment (disposing assets) laws did not violate Commerce Clause and the foreign federal laws were insufficient to invalidate them.
The application of this balancing test on the divestment statutes yields the conclusion that they do not impermissibly encroach into the realm of foreign affairs. (1) does not require investigation into the operation of South African law and does not require no assessment of the credibility of South African officials. (2) Statute falls directly on American companies and only INDIRECTLY on South Africa.
Can you trace the domestic reactions to the efforts by US states to engage in foreign affairs?
(Context: Massachusetts created a no purchase list including countries doing business in Bruma who had a deplorable human rights record)
There appears to be general support. Congress imposed sanctions and when Mass. was brought to court for their own “no-purchase list” Congress quickly supported the law saying that they did not intend to preempt Mass. law in this particular area.
What about the international reactions to the efforts by such states?
(Context: Massachusetts created a no purchase list including countries doing business in Bruma who had a deplorable human rights record)
International reactions were not supportive. NFTC brought Mass. to court because many international companies were included on the “no purchase list” and they believed the state law infringed on the federal government’s general foreign affairs power.
What were the facts, issue and ruling of the SCOTUS in Crosby in relation to the doctrine of pre-emption by federal statute?
Facts: Burma had a deplorable human rights record and in response Massachusetts enacted a statute that barred the state from buying goods or services from any person or company doing business with Burma. A list of prohibited companies was established. Many U.S. allies (Japan) and EU) protested the law saying that it violated the WTO agreement where state parties must ensure that their governmental entities did not engage in discriminatory commerce. Article 38- the source of the agreement preventing the discriminatory commerce was a treaty (government procurement agreement) EU filed a companies against US and filed an amicus brief in support of the National Foreign Trade Council (a company that was on the prohibited list) when the NFTC sued Massachusetts in federal district courts saying that the Massachusetts law infringed on the federal government’s foreign powers.
Issue: whether Congress specific delegation to the President regarding sanctions on Burma was preempted by Massachuset’s law.
Holding: Yes. Because the Massachusetts statute conflicts with Congress’s specific delegation to the President regarding the sanctions of Burma, Congress’s Act preempts the statute.
Law: Congress has the power to preempt state law when Congress intends to occupy a certain yield, when the state law conflicts federal statute, when it is impossible for a private party to comply with both federal and state law and when the state law creates an obstacle to the accomplishment and execution of the full purposes and objectives of Congress
How, if at all, the SCOTUS take into account the views of foreign governments?
On one hand, there seems to be little room left for state participation, especially when the executive branch makes an argument that there is conflict and there is federal legislation in the same area. Very difficult, when the federal government has a problem with it.
When the executive branch chooses not to object or Congress has been silent, or both Crosby seems to leave more room for state participation.
State action in form of legislative, federal action in form of federal statute.
What is the constitutionality of state laws conflicting with federal policy, but not federal law?
Raises the issue of the “dormant foreign affairs preemption” doctrine. Generally, it is the role of the National Government to develop foreign policy, not individual states.
What were the facts, issue and ruling of the SCOTUS in Garamendi? Can you explain the difference between the majority and dissenting opinions? Does the case leave room for state involvement in foreign affairs?
Facts: U.S and German governments created a foundation that set up money for Holocaust victims. The Foundation worked with the European Insurance Company, U.S. State insurance companies etc to get access to information on unpaid policies and claims of some survivors. The goal was to ensure the U.S. state and local governments would allow the foundation to be the only mechanism to resolve these claims. But California passed the HVIRA which required any insurers doing business in California to disclose information about insurance policies issued to persons in Europe that were in effect between 1920 and 1945. Federal officials said that the HVIR undermined the foundation. They are saying that California is violating the dormant foreign affair. More than incidental effect, then it will be preempted if there is federal.
Issue: whether the HVIRA interferes with the National Government’s conduct of foreign relations.
Holding: yes it does so the HVIRA is preempted by federal law.
TAKEAWAY DISSENT: even if incidental effect, states can exercise their traditional power.
There is preemption when a state law conflicts with the expressed foreign policy of the national government.
MAJORITY: The weakness in the state interest, California had a smaller fraction of victims to settle the disputes, so smaller interest.
