The author argues here that a declaration of victory by the critics of the dormant foreign affairs doctrine would be premature. Notwithstanding the Court's citation of Ashwander v. TVA, the actual grounds of the decision in Crosby were in no meaningful sense less "constitutional" in nature than a decision based on the dormant foreign affairs power would have been. Moreover, even though the Court said that its decision was based on a straightforward application of "settled ... implied preemption doctrine," the Court's preemption analysis was anything but ordinary. Indeed, Crosby's version of preemption analysis is subject to the same sorts of objections that Zschernig's critics have directed at the dormant foreign affairs doctrine. Moreover, if the case were taken as a model for deciding issues of preemption in purely domestic cases, it would be anything but narrow. The decision would be narrow only if its approach to preemption were confined to suits implicating foreign relations. But then the decision would be exceptionalist, and the Court's holding would begin to resemble a decision on dormant foreign affairs grounds. The author suggests here that Crosby's approach to preemption was so extraordinary that it would have yielded the same conclusion with respect to the Massachusetts Burma Law even if there had been no Federal Burma Law. Crosby thus offers little cause for celebration to the critics of dormant foreign affairs doctrine.
Part I of this article describes the Zschernig decision and explains how the lower courts in Crosby relied on it in striking down the Massachusetts Burma Law. Although the Supreme Court in Crosby avoided that seemingly constitutional issue in favor of a purportedly sub-constitutional preemption holding, Part II of this article argues that there is less of a difference than may at first appear between a holding based on the dormant foreign affairs doctrine and one based on obstacle preemption. Both are sub-constitutional in all relevant respects, and obstacle preemption is in any event vulnerable to the same criticisms that have been leveled at the dormant foreign affairs doctrine. Part III argues that Crosby perpetuates foreign affairs exceptionalism. Part III(A) contrasts the Crosby decision with the Court's recent constitutional federalism decisions and speculates that the implications of the latter cases may have been overlooked in Crosby because the case was perceived primarily as a foreign affairs case. Part III(B) looks more closely at the reasons the Court gave in Crosby to justify its preemption holding and argues that they were so extraordinarily conducive to a finding of preemption that they would have yielded the invalidation of the Massachusetts Burma Law even if there had been no Federal Burma Law. Part IV considers the recent academic critiques of the Zschernig doctrine and concludes that they justify at most a modest reformulation, but not the abandonment, of the dormant foreign affairs doctrine. The author suggests that the Crosby decision would have rested on sounder, and narrower, grounds if the Court had interpreted Zschernig to stand for the proposition that state laws are invalid if they single out a state or a group of states, or their nationals or those who deal with them, for unfavorable treatment.
46 Vill. L. Rev. 1259-1324 (2001)
Scholarly Commons Citation
Vázquez, Carlos Manuel, "W(h)ither Zschernig?" (2001). Georgetown Law Faculty Publications and Other Works. 986.