Can California Run Its Own Foreign Policy — Against America?

President Trump has the better of the argument, constitutionally speaking, when it comes to his condemnation of California’s climate change agreement with Great Britain. Governor Gavin Newsom pitches the pact as a case of the Golden State “showing the world” a way forward on “climate action.” The Constitution, though, bars the 50 states from conducting foreign policy. Mr. Newsom’s intransigence tees up a constitutional collision. Feature Article I of the Constitution. In Section 10’s first clause the parchment commands that “No State shall enter into any Treaty, Alliance, or Confederation.” That’s a nod to the federal government’s pre-eminent role in conducting the external affairs of America. The third clause of the section forbids any state, “without the Consent of Congress,” to “enter into any Agreement or Compact with another State, or with a foreign Power.” Yet Mr. Newsom shows no sign of seeking a congressional okay for his agreement with His Majesty’s government. Nor does he seem to be abiding by the spirit of the Constitution’s prohibition on states meddling in foreign policy. At the Munich security parley, he asserted that “as Donald Trump abandons America’s long-standing allies, California remains at the forefront,” by, as he put it, “leading, partnering, and proving what climate leadership looks like.”The late justice Joseph Story, in his “Commentaries on the Constitution,” relates that the Framers barred states from forging treaties because they “ordinarily relate to subjects of great national magnitude and importance, and are often perpetual.” When it came to agreements between states and foreign nations, he reckoned that “the consent of Congress may be properly required, in order to check any infringement of the rights of the national government.”Mr. Newsom’s international meddling, which seems designed to undermine the president’s foreign policy, illuminates why the Framers insisted on congressional oversight of such pacts. In 1840, this view was bolstered in Holmes v. Jennison when the Supreme Court voided an extradition deal between Vermont and a Canadian official because the agreement lacked approval by Congress. The Nine in 1893 weighed this issue, too, in Virginia v. Tennessee.The high court found then that the “prohibition” on state agreements without approval by Congress was meant to prevent “any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.” Though that case dealt with an interstate compact, the same logic has been deemed applicable in cases of pacts between states and foreign powers.Congress used to be more zealous in supervising such deals. In 1870 the solons approved a deal between New York and Canada over a Niagara River bridge, the University of Chicago’s Curtis Bradley reports. Yet since then, he adds, “there have been only about a dozen examples of congressional action on state international agreements.” This has left states free to forge pacts “with foreign governments that have not been approved by Congress,” he finds.Mr. Bradley cautions of the risk of “conflicts developing between state agreementmaking and national policies.” California, which alone touts some 37 cases of its “international diplomacy,” not counting the latest one with Great Britain, is a prime example. Sacramento says these deals signal “mutual goodwill thereby encouraging bilateral cooperation.” Yet they suggest, too, an impairment of the federal scheme envisioned by the Framers. One can imagine questions of standing could impede legal efforts to challenge these pacts. In 2019 Mr. Trump’s Justice Department sued to void a climate emissions agreement between California and Quebec. Yet the suit was rejected by a district judge, and the federal appeal was withdrawn by President Biden. Mr. Trump’s second term offers a new chance to right the ship over the proliferation of state pacts, like Mr. Newsom’s, with foreign powers.

Can California Run Its Own Foreign Policy — Against America?

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