Foreign Affairs Federalism: A Revisionist Approach
This Article analyzes how federal courts should resolve disputes implicating both federalism and foreign affairs concerns when no textual source of law provides dispositive direction. This challenge, which arises in what Justice Jackson once called the "zone of twilight," occurs with surprising frequency. Most recently, it can be discerned in Justices Kennedy’s and Scalia’s dueling opinions in Arizona v. United States. Analysis of the Arizona opinions suggests that federal judges tend to resolve such zone of twilight disputes by invoking a default presumption either in favor of state or federal control. Scholarship on the appropriate choice of presumption divides methodologically, yielding what can be usefully labeled formalist and functionalist approaches. Neither is satisfactory as presently formulated. Formalist approaches yield incoherent and unsatisfactory responses. Existing functionalist analyses, while sound in general approach, omit crucial considerations. To remedy the ensuing gap in the literature, this Article develops a second-generation functionalist approach for resolving foreign affairs federalism cases in the zone of twilight. Cataloging both the costs and advantages of centralization, we posit that the appropriate judicial presumption should vary over time. Our central thesis is that, while both the states and the federal government have legitimate regulatory interests, the relative strength of their interests depends on geopolitical conditions. To operationalize that insight, the Article offers a parsimonious doctrinal tool, based on the international relations concept of polarity, to determine when the presumption should switch from favoring the states to favoring the federal government.