More on the emerging new federalism and foreign affairs as a reaction to President Trump’s foreign policies concerning such areas as trade, climate immigration, among other areas. This nascent development more than just resistance. It represents significant developments concerning newer manifestations of federalism to match the 21st century reality of an interconnected world on all levels.

The role of states and cities in the U.S. as to foreign affairs and trade is certainly not well defined in and under the U.S. Constitution. Especially in its 21st century context and in light of empirical practices over the years.

By the way this resurgence of local actors in the global system is not just limited to the United States. Subnational units worldwide are bypassing ineffective central governments to better engage the global system for the benefit of their citizens to promote better trade, investment, and economic development.

More on the emerging new federalism as a reaction to President Trump’s foreign policies as to trade, climate and immigration. This is more than just resistance. It represents significant developments concerning newer manifestations of federalism to match the 21st century reality.

By the way this resurgence of local actors in the global system is not just limited to the United States. Subnational units worldwide are bypassing ineffective central governments to better engage the globl system for the benefit of their citizens to promote better trade, investment and economic development.

Some interesting developments just the last few days:

• Canadian and Mexican officials are meeting directly with governors of U.S. states at the National Governors Association meeting to discuss trade and NAFTA. They want to gain political allies and the governors want to gain export sales and promote economic development. 
• More than 200 cities and states are holding meetings and local summits in support of the Paris Climate Agreement. Some here and perhaps some abroad.
• The U.S. Dept. of Justice (Attorney General) has called for possible legal action against sanctuary cities, e.g., for failing to turn over local information concerning immigrants to the federal government.
• The Congressional Research Service has released a surprisingly poorly drafted report questioning the authority of states to do anything in the area of international trade or foreign relations. (Failing to cite the definitive Supreme Court case addressing implied preemption and foreign trade.)

States have huge rights in the foreign affairs area. But they are limited by various powers of the federal government. These limitations are not well defined, especially not in today’s context. No Supreme Court case has broadly restricted the rights to states to engage in the global economy. Today they have trade missions, they tax international transactions, etc. For example, my home state of Virginia has recently completed MOUs concerning trade with a Baja California (a Mexican state) and Mexico City.

What can be said about these latest developments? As to the entire area of the relation of constitutional law to American foreign relations we need to go back to the writings of Louis Henkin and the more recent ones of Justice Breyer.     

New constitutional law is about to be made as a result of incoherent and isolationist polices of President Trump and reaction to it. These policies fly in the face of the real economic and national security interests of the United States and the international system. Local governments are paying the price for this folly. They and no one else can afford it. (Similar developments can be seen in countries overseas. For example, the City of London is negotiating with EU officials directly in Brussels as to financial aspects relating to London institutions under Brexit.)

Very simply this issue of national subunits engaging the global system and bypassing incompetent national leadership is evolving nationally and globally.  In the United States this will undoubtedly lead to very contentious legal and political battles over the new federalism in the courts, Congress, state houses, and city halls. Stay tuned …………….

• “Foreign Leaders, State Governors and Trade Talks.” Washington Post (July 13, 2017).
• “Governors and Global Trade (NGA Meeting).” New York Times (July 16, 2017).
• “Trudeau and NAFTA and State Governors.” Washington Post (July 15, 2017).
• “States Fighting Trump and the U.S. Constitution.” CNBC.com (July 13, 2017).
• “New Localism in Cities in US and Abroad.” Financial Times (July 24, 2017).
• “Sessions and Sanctuary Cities and Federal Law.” Washington Post (July 6, 2017)
• “Constitutional Limits on States & Paris Agreement.” Congressional Research Service Reports and Analysis (June 27, 2017).