Publication Date
2023
Publication Title
Public Law & Legal Theory
Abstract
The text of the U.S. Constitution appears to require that, to the extent that individual states are ever allowed to conclude agreements with foreign governments, they must obtain congressional approval. In practice, however, states conclude many agreements with foreign governments and almost never seek congressional approval. This practice is an illustration of both the importance of federalism in U.S. foreign relations and the significant role played by historical practice in informing U.S. constitutional interpretation. The phenomenon of state international agreements assumed new prominence in 2019 when the Trump administration sued to challenge a climate change agreement that the state of California had made with the Canadian province of Quebec. Despite this challenge, for the most part neither Congress nor the executive branch has resisted the growth in state international agreements. This acquiescence could change as countries like China target U.S. states in an effort to work around strained relations with the U.S. national government, and as states become more assertive in resisting the national government’s foreign policies. In any event, the practice of state international agreements unapproved by Congress rests in part on a distinction between binding and nonbinding agreements that deserves greater scrutiny under both domestic and international law.
Number
832
Recommended Citation
Curtis Bradley, "International Agreements by U.S. States: Federalism, Foreign Affairs, and Constitutional Change", Public Law and Legal Theory Working Paper Series, No. 832 (2023).
