Emerging Voices: Horizontal and Vertical Dimensions of International Law in U.S. Courts

[Zachary Clopton is the Public Law Fellow at the University of Chicago Law School.]

For decades, scholars and practitioners of international law in the United States have focused on the federal courts.  The combination of diversity, alienage, federal question, and Alien Tort Statute (ATS) jurisdiction largely justified this focus.  But in the wake of decisions such as Morrison and Kiobel, some of these scholars and practitioners have turned to state courts and state law to vindicate international norms (1, 2).  To give one example, New York state courts are adjudicating foreign-law claims against the Bank of China arising from its alleged facilitation of Hamas and Palestine Islamic Jihad attacks in Israel.

The attention to states may prove to be a positive development, but notably it has tended to rely on judicially created rights—common law claims under state or foreign law, or customary international law.  What about state political branches?  Is there is a role for governors and state legislatures, and should internationalists spend some of their energy lobbying these state-level political actors?

From a policy perspective, as well as from a doctrinal and constitutional one, international litigation in U.S. courts raises both horizontal (separation of powers) and vertical (federalism) questions.  Although some judges and scholars object to international law in all of its forms, and others applaud any expanded role for international law, acknowledging the independent horizontal and vertical dimensions opens up more nuanced options.

First, there is a long tradition in foreign affairs law that seeks to curtail state involvement in favor of a robust federal foreign affairs power. The foreign affairs preemption of Zschernig, the federal common law of Sabbatino, and the federal preemption of Garamendi and Crosby, to name a few, exemplify this vertically oriented approach.  The decisions and their supporters adopt a vertical objection to the polyphonic voices of state-level foreign policy, though they may be agnostic on the horizontal question whether federal political branches or federal judges are proper actors in foreign affairs. Yet, as Peter Spiro and David Moore (among others) have demonstrated, there are reasons to doubt a vertical one-voice doctrine. States may benefit from coordinated (and thus uniform) policies; globalization means that states may be less likely to engender retaliation against the nation as a whole; and subnational actors may be forces of good in international relations.

Independent of the vertical/federalism issue is a horizontal objection to judges as policy makers. One could accept that states are viable actors in international relations but reject state judicial intervention in these cases. For example, John Yoo and Julian Ku’s recent book framed an objection to international-law litigation in horizontal terms, praising non-judicial approaches to international law among state legislatures and governors.  (This work builds on Ku’s excellent earlier treatments (1, 2, 3) of these questions.)  State political branches have made international agreements, adopted treaties not ratified by the U.S. Senate, and legislated on topics of international importance. And recently states have entered the fray with respect to the ongoing battle between Koreans and Korean-Americans groups and the government of Japan. Yoo and Ku highlighted state political branch action with respect to private international law, but these same approaches could be applied to public international law questions as well.  One could imagine states seeking to fill gaps in public international law enforcement through state-level alien tort statutes or privately enforceable regulatory requirements incorporating international norms.

Separating the horizontal from the vertical dimension brings to light the potential advantages of (state) political branch activity over (state) judicial intervention.  Political branches may have more flexibility than courts because they set their own agendas, can respond to changing circumstances, and have at their disposal a wide range of policy instruments. Political branches also may have more democratic legitimacy and accountability, as well as expertise in foreign affairs.  Doctrinally, narrow interpretations of federal jurisdictional statutes and unfriendly federal procedural doctrines apply to federal courts, not to the states. Perhaps, therefore, state political branch activity would be more insulated from federal judicial override while also appealing to federalist impulses.

Despite these policy and doctrinal advantages, however, there are reasons to believe that the current federal courts would not be amenable to state political branch involvement in public international law litigation.  (That is, of course, unless the federal political branches authorize it.)  The Roberts Court has shown its willingness to preempt state law, and the Court’s decisions on foreign affairs (for the most part) have not evinced a willingness to entertain state-level solutions to international problems. And though the Court at times preaches modesty, even in foreign affairs the Court has been willing to interject the judiciary in vertical and horizontal disputes and narrowly construe federal laws touching on foreign affairs. Moreover, the efforts required to spur state political action on international law—e.g., lobbying for a state alien tort statute rather than bringing a human rights suit raising a state-law tort claim—might serve to make state involvement more salient to judges and (perhaps more importantly) to those interests that seek to limit international law in U.S. courts. In the end, therefore, a state political branch approach may tap into certain institutional advantages of political actors but may struggle to advance the cause of international law in U.S. courts.