Document Type

Article

Publication Title

Yale Law Journal

Publication Date

2006

Abstract

In a variety of circumstances, state governors exercise independent decision-making power over matters affecting the foreign policy of the United States. This Essay describes and defends this emerging system of gubernatorial foreign policy on both legal and functional grounds. Recent Supreme Court decisions retreating from federal exclusivity in foreign affairs and prohibiting the commandeering of state executive officials leave a small doctrinal space for governors to act independently on matters affecting foreign policy. This small space has been further expanded by the federal government's practice of imposing limitations on the preemptive effect of treaties and international agreements. A system of gubernatorial foreign policy also represents the most practical and feasible way to accommodate the internationalizing pressure of globalization with a continuing federal system of "dual sovereignties." Under this system, the states will continue to improve their capacity to deal with matters affecting foreign affairs, and the federal government will retain the right to preempt, but not to commandeer, state governors in the service of federal foreign policy goals.

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