Published by The Lawfare Institute
in Cooperation With
Nearly a year into the coronavirus pandemic, it is hard to be optimistic about the future of global cooperation and the institutions that are supposed to support it. Absent major power leadership, anarchic tendencies have prevailed. The human toll alone is devastating, with more than 114 million people having been infected with the virus globally and many more expected to fall victim to the virus before the pandemic’s defeat.
The global community’s bungled response to the pandemic has laid bare the often-yawning gap between the crises the world faces and the responses that major powers manage to mount. With growing political gridlock and dysfunction on national and global levels—from pandemics and climate change to election interference and terrorism—it is clear that national and global bodies are struggling to meet the moment. While these are serious shortcomings, the picture is not all bleak.
In underappreciated ways, states and localities have been stepping in to fill the foreign policy void by taking a range of actions that bear directly on foreign relations. Subnational governments make these policy decisions because they do not have the luxury of waiting for national or multilateral leadership to tackle crises like pandemics or wildfires on their doorsteps. States and localities are also the government entities on the frontlines delivering essential goods and services, giving them a finer-tuned sense of constituent needs and how best to meet them. Further, subnational governments are central foreign policy implementers. They make the concrete commitments needed to actualize and add “stickiness,” or staying power, to many of the global agreements the U.S. seeks to join.
That subnational governments are the frontline responders to many foreign affairs matters creates real advantages. Rather than merely bemoaning the shortcomings of national and global bodies (which can and should be addressed), the U.S. should embrace the role that states and localities play as force multipliers and divisors of solutions to the foreign policy dilemmas the global community faces. Such an embrace requires a better understanding of the types of foreign affairs federalism that exist today and a strategy to employ local powers to tackle global challenges in a post-Trump era.
To advance a more proactive approach to foreign affairs federalism, this post sets out state and local foreign affairs powers, a typology for local foreign affairs in practice, and a framework for understanding the legitimacy of local foreign affairs actions. It also suggests steps that the Biden-Harris administration could take to advance this agenda, including announcing a federalism czar, ideally under Vice President Harris’s purview, to spearhead a whole-of-government approach to local-federal cooperation; directing the Justice Department and the Office of the Solicitor General to consider moderating and/or rolling back their state preemption arguments in the foreign affairs arena; tasking the U.S. State Department with exploring collaborations between states and localities and federal entities; and using the example of local commitments to international treaties and standards as a basis to build much-needed support in the Senate for ratifying treaties after decades of sidelining them.
State and Local Foreign Affairs Powers
Although the exercise of foreign affairs in the United States is generally the prerogative of the federal government, states and localities possess considerable authorities to engage in foreign policymaking. As Michael Glennon and Robert Sloane have detailed, states enter into agreements with foreign countries, adopt international standards, tax and/or set incentives for foreign business and make foreign policy statements, among other international activities. States and localities also engage in a wide range of foreign policymaking—by setting climate change policies, securing locally administered elections from foreign interference and battling public health crises like the coronavirus pandemic. These are all, in a broad sense, a form of “foreign affairs federalism.”
State and local authority to engage in these activities is derived largely from state “police power.” Under the Tenth Amendment of the U.S. Constitution, all powers that are not expressly delegated to the federal government are reserved for the states and the people. States exercise this authority either by enacting their own legislation or by delegating their power to counties, cities, and other localities to enact laws and policies that preserve and protect the safety, health and welfare of the community. During a public health emergency, states and localities may also exercise extraordinary public health powers, as seen across the country in confronting the pandemic, though the contours of that authority are still being hashed out in the courts.
Many other central foreign policy powers are reserved for the federal government and, in some cases, expressly withheld from states. For example, states generally may not enter into treaties or engage in war absent congressional consent. And the president is vested with the authority to “speak or listen” on behalf of the nation on international affairs matters. The federal government might also preempt states from exercising certain foreign affairs powers, though the scope of the doctrine is disputed and remains largely unresolved. Even so, states and localities possess foreign affairs authorities that have become even more evident due to the increasing flow of people, goods, and ideas, making many local decisions global in import.
Local Foreign Affairs in Practice
Subnational actors may possess these foreign affairs authorities, but how do they use them in practice? As proposed here, states and localities engage in four distinct types of foreign affairs federalism: local to local, local to federal, local to corporate, and local to global.
Local to Local. The most common form of local foreign policymaking involves local governments engaging with their counterparts to implement policy initiatives that have transnational impacts. For example, a number of states in the Pacific Northwest joined with the Canadian provinces of British Columbia, Alberta, Saskatchewan, Yukon and the Northwest Territories to create their own economic region. Realized through a public/private nonprofit, these regions coordinate policy on issues ranging from disaster resilience to water policy. On a larger scale, after President Trump declared his intention to withdraw from the Paris Agreement, California convened a summit of cities, states and business leaders from around the world to secure thousands of subnational commitments to reduce carbon emissions. Localities then took action: California passed a bill committing to 100 percent renewable energy by 2045, while cities like Copenhagen pledged to become greenhouse gas-neutral by 2025. Similar coordination has occurred in response to the coronavirus pandemic.
Localities can also wield soft power in foreign affairs. State National Guard units regularly partner with countries across Africa to conduct exercises and training, and a wide range of localities conduct exchanges with foreign counterparts through Sister Cities programs. Collectively, these initiatives help facilitate the bread and butter of foreign policymaking: building relationships and understanding between communities.
Local to Federal. Local to federal foreign-policy engagement gets the most attention in legal circles. This engagement often takes the form of “uncooperative federalism,” with the U.S. Supreme Court’s 2006 decision in Massachusetts v. Environmental Protection Agency serving as the archetypical precedent. In that case, a slim majority of the Supreme Court held that Massachusetts and several other states were correct in asserting that the Environmental Protection Agency was required to regulate greenhouse gas emissions under the Clean Air Act and that the agency was unjustified in delaying its decision to do so—a significant climate change win for the litigating states.
More recently, localities across the country sued the federal government for imposing new conditions on policing grants for localities that refuse to assist federal authorities with federal immigration enforcement efforts. Attempts to compel localities to assist with deportation efforts not only impact communities in those specific cities and counties but also bear directly on America’s relations with its neighbors and the other countries from which immigrants hail. If the federal government successfully coerced jurisdictions such as San Francisco and New York City into assisting with federal deportation efforts, for example, that could create tensions between those jurisdictions and the countries to which deportees are being returned. Such policies could also sour relations between the U.S. and those countries, as conscripting localities into federal immigration enforcement could significantly expand the United States’s capacity to deport immigrants and thereby raise tensions with those countries.
At other times, this engagement is more cooperative. For instance, this past election cycle, local election administrators made critical operational decisions to protect their infrastructure against foreign election interference. This cooperation was particularly important in the face of Russia’s plan to target election systems in all 50 states. Local to federal cooperation was an enormously consequential foreign affairs function that protected the integrity of the U.S. federal electoral system from an external attack. This engagement can also occur across country lines. For instance, in 1989, the mayor of Irvine and a California state senator traveled to Vietnam to advocate for the release of dozens of men whose families had fled to California. Or more recently, the County of Santa Clara entered into a binational memorandum of understanding with the Consulate General of México and the City of San José to reduce hate crimes targeting Mexican immigrants, while the Vermont city of Burlington partnered with dignitaries from the State of Vermont, Canada, Québec and France for a flag-raising ceremony to support the local francophone economy and raise awareness of French culture. These types of subnational engagements with other nations’ federal bodies are now quite common.
Local to Corporate. Local engagement with corporations on foreign policy matters is perhaps one of the most important—and most underutilized—areas of foreign affairs federalism. This, too, can take cooperative and uncooperative forms. Consider, for example, California’s recent ban on the sale of new gas-powered cars in 2035. Given the size of California’s car market, this prohibition compels car manufacturers and related industries to take immediate climate-adaptive measures in order to remain a player in the state’s car market in the future. In turn, those changes will shape global car markets for years to come.
Localities have also been at the forefront of litigating what threatens to become a global opioid epidemic. In May 2014, a handful of local governments set off a wave of lawsuits, now numbered in the thousands, aimed at holding opioid manufacturers, distributors and others to account for their role in creating the opioid epidemic. For instance, Oklahoma secured a $572 million judgment against Johnson & Johnson for its role in creating the state’s opioid epidemic. While often long and costly, this locality-driven litigation may play a role in holding these companies accountable and thereby curbing the spread of the epidemic to other countries. This area of foreign affairs federalism is ripe for growth, particularly in the realm of constructive engagement on matters like preventing and responding to climate-induced fires and foreign election interference. For instance, localities could partner with corporations to ensure that fire department first responder internet access is not throttled while teams are fighting fires or to prioritize the circulation of accurate election information from the local government entities that administer elections.
Local to Global. Localities also engage in foreign policymaking directly with global bodies and foreign actors, though this mode of engagement is somewhat rare. For instance, cities across the world have submitted reports directly to the United Nations detailing how they are working to achieve the Sustainable Development Goals, a set of targets adopted by all U.N. member states to promote global peace and prosperity. Another example is UNICEF’s Child Friendly Cities Initiative, an effort the U.N. agency launched recently to partner with local governments to adopt and implement the U.N. Convention on the Rights of the Child at the local level.
When States and Localities Should Act
Foreign affairs federalism is far more prevalent than casual observers may think. Until national and local actors fully embrace these foreign affairs powers, they will continue to pass up substantial opportunities to make progress on a range of foreign policy issues. A true embrace of foreign affairs federalism would significantly alter the way in which foreign affairs is currently conducted—for example, where the Paris Agreement is negotiated, signed and entered into force by the national government, then localities must scramble to achieve it.
Foreign affairs federalism should be employed in three primary scenarios: when others are leading (including by setting a floor for action, not a ceiling); when others have failed to act; or, in rare circumstances, when others oppose action. This framework is loosely based on the Supreme Court’s landmark 1952 case, Youngstown Sheet & Tube Company v. Sawyer. In Youngstown, the Supreme Court considered whether the president had the authority to seize and operate private steel mills during the Korean War. In his concurring opinion, Justice Robert Jackson famously set out a framework for assessing executive action: The president has maximum authority when acting with express or implied authority from Congress, intermediary authority when Congress has been silent and the least authority when the president’s actions contravene congressional orders. This framework serves as a helpful guide to assessing the legitimacy of local foreign affairs practices.
When Others Are Leading. This scenario—when national and global bodies are leading in addressing a foreign affairs issue—is when supportive foreign affairs federalism has the greatest legitimacy (and uncooperative federalism has the least). In many cases, national and multilateral bodies will have already acted in some way to commit their polities to concrete action, including when setting a floor for action rather than a ceiling. When national and global authorities provide a green light for action, local foreign affairs is at its highest ebb of legitimacy. That means that all forms of local foreign affairs engagement should be utilized, though local to local and local to federal are the most common.
To truly embrace subnational engagement, national and global actors should solicit state and local views, seek to secure their buy-in, and lock-in their commitments on the front end of negotiating a deal. The Obama administration planted the seeds for this kind of engagement in advance of the Paris deal, using a convening of U.S. and Chinese cities to build toward a U.S.-China agreement that then laid the foundation for the Paris Agreement. But the administration could have garnered far more significant local support—by actually seeking it from localities—in advance of the deal. The administration would not have been beholden to securing subnational commitments, but it certainly could have benefited from having them.
Of course, not all localities across the United States will be supportive or prepared to make forward-leaning commitments to international agreements, especially while provisions are still being hashed out. But the support of a significant number of states and localities would build momentum for a deal. Those local commitments would provide a critical stickiness to U.S. agreements that global partners are eager to see, particularly in the aftermath of the Trump presidency. As localities have shown in the context of the U.S. walk-back from the Paris deal, local government support can be the glue that binds a global agreement together, even when federal governments falter.
When Others Have Failed to Act. In the current political climate, a more common scenario is when the federal government and/or global bodies have failed to act in response to a crisis. The global community’s halting response to the coronavirus pandemic is now the paradigmatic example. The absence of national and global action is a form of quiescence—when national governments and global bodies effectively abdicate power—and localities should seize it.
Local to corporate and local to global action would be particularly impactful in the absence of national and global action or guidance. Such local initiatives could play a significant role in places like the Rust Belt, where many communities have felt that foreign affairs issues like global trade have failed to serve their interests. A more assertive approach to foreign affairs—driven by localities—could help to shift that dynamic. While this approach could create a “patchwork” of local responses, patchworks and coordination are not mutually exclusive. And innovation at the local level often spawns more robust and meaningful action at the federal and multilateral levels.
There may be instances where the patchwork creates competing outcomes or confusion with global partners over who represents America’s interests. But, due in part to globalization’s reach, a multifaceted approach to foreign affairs is already a feature of the American political landscape, as California’s shaping of the global car market has shown. The U.S. has more to gain by embracing this reality than by fighting it.
Generally Not When Others Oppose Action. If the federal government expressly indicates that no action should be taken—for instance, by proclaiming, issuing an order, or passing a law providing that no sanctions relief should be given to Iran—then localities are not well positioned to engage. Doing so would be squarely incompatible with the will of the federal government (and potentially global bodies as well) and could violate both U.S. and international law. This is an area where the traditional notion of a unitary actor in foreign affairs is the most supported and the federal government’s Article II authorities are the most clearly defined. If states and localities act nonetheless, courts may be called upon to rein in any decisions that run afoul of constitutional or federal legal limits.
However, certain circumstances may demand an exception. For instance, local action may be permissible when the federal government has made a foreign policy statement or taken a position on a nonbinding text where no legal obligations have been enshrined in domestic or international law. Consider the Trump administration’s repeated efforts to remove all references to sexual or reproductive health in a range of U.N. resolutions and other instruments. Those efforts revealed the national government’s policy preference of opposing sexual and reproductive rights—but it did not lock in any legal commitments or prohibitions against such rights (doing so may have violated federal law). Under those circumstances, local action in support of sexual or reproductive health remained permissible, even if at odds with federal government pronouncements and diplomatic maneuvers.
A Road Map for the Biden-Harris Administration
For the past four years, many states and localities have served as a critical locus for resisting the Trump administration’s policies and practices. But now, the Biden-Harris administration has an opportunity to engage localities as force multipliers in reasserting America’s foreign policy agenda—a significant expansion of power to effectuate policy change. To do so, the administration should make federal-local engagement a priority through four key measures.
First, the administration should designate a federalism czar, ideally reporting to Vice President Harris, given her tenure as California attorney general and San Francisco district attorney, to spearhead a whole-of-government approach to local-federal cooperation. The federalism czar should proactively engage localities to garner their support on administration foreign policy priorities, starting early on in their development. The czar should also work to ensure that feedback loops from localities to the federal government are working—for example, by ensuring that local police department efforts to prevent and counter violent extremism are informing federal plans and vice versa. The czar’s efforts will also be key to ensuring that subnational efforts align with federal ones or, at a minimum, that they do not conflict.
Second, the administration should direct the Justice Department and the Office of the Solicitor General to consider moderating and/or rolling back some of their state preemption arguments, which have threatened to undercut a variety of state and local initiatives to tackle trans-border issues such as climate change. Withdrawing its challenge to California and Quebec linking their cap-and-trade programs, a case in which the U.S. has asserted that these programs interfere with the United States’s foreign policy on greenhouse gas regulation, would be an important first step. But more generally, the administration should refrain from taking a maximalist approach to preemption where local and state laws and regulations are working to address important foreign affairs problems. As part of this effort, both the Justice Department and the Office of the Solicitor General will need to consider how to take an approach to preemption that ensures that subnational governments are engaging in ways that expand—and do not contract—fundamental rights, particularly with respect to hotly contested issues such as immigration.
Third, the administration should task the State Department with exploring collaborations between states and localities and federal entities, including by working through other departments and agencies. Special Presidential Envoy for Climate John Kerry’s office could lead the way by appointing a staff member dedicated to local outreach and commitments on climate. Some observers may argue that it is no longer helpful for states and localities to have a heavy hand in shaping climate change policies, now that the administration is making climate a national security priority. But this is misguided where, as in the first scenario above, national and global leaders have set a floor for action, not a ceiling. If certain subnational actors are taking an obstructionist approach, then the administration would have greater justification to assert those actions are preempted, where federal laws exist, and to push back against counterproductive local action generally. As explained above, those local actions would be at their lowest ebb of legitimacy and would likely be unlawful in the face of contrary federal laws.
Fourth, the administration should use this local engagement to build the case with the Senate that local compliance with international standards and agreements means that treaty ratification may not impose significant new burdens or commitments. That may be the best hope for the U.S. to finally commit to treaties such as the Convention on the Elimination of Discrimination Against Women (CEDAW) or the Convention on the Rights of the Child. Of course, these treaties may face a rocky road to ratification for other political reasons. Many Republicans are likely to continue to oppose CEDAW, for example, arguing that the treaty would impede traditional family roles and that the agreement implicitly supports abortion. However, local compliance with conventions like CEDAW could help to debunk these and other sovereignty-related concerns. At a minimum, local practice could serve as a concrete data point in advancing conversations about treaty ratification in the Senate.
A True Embrace of Foreign Affairs Federalism
The Biden-Harris administration—and global bodies tasked with addressing crises around the world—should work with states and localities as the key foreign affairs agents they have already become.
Despite common perceptions of federalism as a conservative or Republican value, local foreign affairs efforts exist in red and blue jurisdictions alike. In practice, whichever party lacks control of the White House tends to be the standard bearer for federalism, including in the foreign affairs arena. But as this post has sought to demonstrate, subnational governments also engage constructively on foreign policy matters, regardless of which party controls the White House. Ultimately, decentralized foreign affairs powers, at least as used in practice, are not partisan. Further, these powers need not be favored in densely populated areas rather than more rural ones, as state governments represent both. And on a more local level, counties, which lean rural and suburban, can become a significant part of the foreign affairs federalism equation.
Embracing local foreign affairs will require resources. And adding another set of actors to already complicated multi-stakeholder negotiations is not a light lift. But even if some localities balk or others are not prepared to commit, the political risks in the early stages of negotiations are likely low, while the potential upside is significant. Locking in local commitments could bolster support for the federal government’s position—on the front end and back end of deal-making. In doing so, the U.S. could not only build more leverage when negotiating foreign affairs deals, but it also could secure the local support essential to delivering on U.S. commitments and, hopefully, pave the way for more viable support for treaty commitments in Congress.
It may take some time for certain localities to get their foreign affairs footing and for their national and global counterparts to figure out how best to engage them. But the investment is worth it. A more robust federal foreign affairs strategy not only will help to tackle transnational crises—it also will help to reinforce the liberal norms and institutions that the United States has worked so hard to create. Those are essential ingredients to healing the wounds of the Trump era and resurrecting American foreign policy.
Correction: An earlier version of this piece stated that the Biden administration should work with the Senate to commit the United States to the Convention on the Elimination of Discrimination Against Women (CEDAW) and the Convention on the Elimination of Racial Discrimination, rather than CEDAW and the Convention on the Rights of the Child. The U.S. is already a party to the Convention on the Elimination of Racial Descrimination.