Does Medellin Revive Barclays Bank?

Barclays Bank v. Franchise Tax Board (1994) was a case that some of us (those who started teaching in the mid 90s) saw as a breakthrough case on foreign relations federalism, a sharp turn from Zschernig and the ‘one voice’ line of foreign commerce clause cases. As Jack Goldsmith wrote in 1999, for instance, “Barclays Bank marks a return to a pre-Sabbatino, pre-Zschernig approach to state activities that cause foreign relations controversy.”

It didn’t turn out that way. Even as they shied away from expressly confirming Zschernig, Crosby and Garamendi work very much from one-voice premises. The latter particularly so, insofar as it takes executive branch representations at face value in determining whether a state-level measure interferes with federal foreign policymaking. For those of us looking for some new thinking in the area, there wasn’t much to these cases. Federal supremacy persisted on the old model.

But Medellin may yet breath some life into Barclays. In confronting the Bush memo ordering that state courts give effect to the Avena decision, the Court played heavily to the President’s incapacity to make a treaty self-executing without congressional participation. This parallels a similar posture in Barclays Bank, where the Court found congressional action necessary to preempt the state tax challenged there under the dormant foreign affairs power. (“[W]e leave it to Congress–whose voice, in this area, is the Nation’s–to evaluate whether the national interest is best served by tax uniformity, or state autonomy.”)  Medellin of course also involved a question of foreign relations federalism, one susceptible to a Zschernig analysis.  See Kirgis, 92 AJIL 704.  Although the Medellin majority cited neither Zschernig nor Barclays it did take a big swipe at Garamendi, suggesting the latter’s limitation to the context of foreign claims settlement only.

Combining with this aspect of Medellin in a possibly pincer-like fashion is Congress’s new-found willingness to validate state and local activity, as manifested in the Sudan Accountbility and Divestment Act of 2007.  That measure (which sets out the “sense of” Congress that the US government “should support the decision of any State or local government to divest from . . . a person that the State or local government determines poses a financial or reputational risk”) might steer the Court away from the sort of hair-trigger preemption threshold it laid out in Crosby and Garamendi. And so, back to Barclays Bank.