Coordinated action looks national AND federal acquiescence will be misread as endorsement.

State and local governments are arguably seen as representing the U.S. government abroad in a more official capacity than U.S. non-state actors. The governments of these localities are democratically elected and so it is more likely that they will be seen as acting on behalf of the American people. Additionally, the federal government generally has a greater ability to control the actions of these localities than non-state actors. Therefore, there is a greater chance that nonintervention by the federal government to stop offensive activity will be seen as federal endorsement of such activity.

Such logic though should caution against court intervention in these cases rather than encourage it. If localities’ actions damage U.S. foreign policy interests, the federal government can easily preempt the state or local policies in question. Further, with the world’s increased interconnectedness, it is more likely that if a foreign government takes offense to a locality’s policy it can discriminate between the policy of the locality and the policy of the federal government.155

2. Benefits of Decentralizing Foreign Relations

Democracy that takes place at the level of the nation-state has long been considered suspect. As Robert Dahl and Edward Tufte observe in Size and Democracy, two thousand years of democratic theory either explicitly or implicitly presupposed that democracy could only work on a very local level.156 The first democracies were city-states whose citizens practiced a form of limited direct democracy.157 Both Plato and Aristotle assumed in their work that democracy would only occur in city-state like units of governance. For instance, Plato uses the example of a population of 5,040 as an ideal number of citizens for a democracy.158

Montesquieu and Rousseau, two of the thinkers who most influenced the founders of the United States, both believed in small scale democracy and largely believed democracy could only successfully take place at this level. Rousseau argued for small direct democracies and cautioned that “[t]he moment a people allows itself to be represented, it is no longer free: it no longer exists.”159 In contrast to Rousseau, Montesquieu wrote that representatives of the people were better at discussing public affairs and making decisions for the community than the people as a whole.160 He also felt, however, that democracy was not well-suited to a large country because it was too difficult to foster trust and a sense of public good on this scale.161

Inheriting a vast geographic area and a relatively large population (approximately 3.9 million people in 1790),162 the United States adopted a representative form of democracy on a national scale. Commitment to democracy at the state and local level, however, remained strong. De Tocqueville’s snapshot of the United States in Democracy in America showed the continued liveliness of democratic institutions at a municipal level in the early 1800s.163 An allegiance to states and regions was so overwhelming in the 1850s and 1860s that it created the preconditions for the South to attempt to form their own union during the Civil War.

Since the Civil War, there has been a general centralization of political power to the federal government, most notably during Reconstruction and the New Deal. In the 1930s, federal expenditures per year finally became greater than local expenditures.164 State and local democracy did not necessarily become less vibrant during this progression, but localities lost relative power over their citizens in relation to the federal government. Further, Americans’ political identities became less attached to their region, state, or town and more linked to the country as a whole.

The country though has also seen countervailing trends. The second half of the 20th century saw a relative expansion of state and local government in relation to the federal government although federal spending remained significantly higher throughout. State and local expenditures have increased from 1950 to 2001 from 5.6% of GDP to 9.8%.165 During this same period, overall federal government expenditures changed relatively little, ranging from 15% to 23% of GDP (15.6% in 1950 and 18.4% in 2001). These overall federal numbers mask an important trend though because the Reagan presidency saw the beginning of a large drop in federal spending that was not defense, interest payments, or transfers (4.1% of GDP in 1980, 2.2% in 1988, and 2% in 2001).166 Meanwhile state and local spending consistently increased during this time (8.6% of GDP in 1980, 9.2% in 1988, and 9.8% in 2001).167 This change in federal, state, and local expenditures along with Supreme Court decisions supporting state rights and a general shift in public opinion for greater federalism indicates a moderate trend towards decentralizing many aspects of governance over the last 25 years in the United States.168

Federal systems are often adopted out of political necessity to accommodate religious, ethnic, or linguistic differences between groups from different geographic areas within the same country. These groups are granted guarantees of limited autonomy while the central government is granted limited overall control. This article does not examine the political necessity of American federalism. Instead, three other traditional justifications of federalism in the United States are highlighted and explicitly adopted to show the benefits of more decentralized foreign relations. These are the following: (1) federalism creates a greater diversity of policies which are more locally relevant, more economically efficient, and/or allow for more experimentation with less risk to the nation as a whole; (2) federalism provides a check on the over-centralization of power; and (3) federalism fosters thicker citizens by creating a more participatory and locally relevant democratic process.

First, federalism allows for and fosters a greater diversity of policies. Decentralization can allow for a number of governmental subunits to work on the same problem creating what Jack Walker calls a “national system of emulation and competition”169 while also taking into account local conditions and preferences. In a similar vein, Charles Tiebout famously argued that if “consumer-voters” are mobile and have full information they will sort amongst bundles of public goods offered by competing local governments, thereby leading to the distribution of public goods in an optimal manner.170

Certainly, not all localities perform equally well at developing and adapting new policies. Research has shown that wealthier states tend to be more innovative although local political situations are in large part determinative as well.171 There is also reason to believe localities are best at determining solutions to middle-level difficulty problems as large problems often require more resources than are at their disposal while decentralization can often confuse remedies for smaller problems.172 With these limitations in mind, however, localities are remarkably adaptive, often correctly pinpointing problems and finding new solutions before the federal government does.

Dissenting from New State Ice Co. v. Liebmann, Justice Brandeis summarizes the frequently invoked idea that states can be laboratories for experimentation:

To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of he federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.173

Of course, if state and local policies affect foreign relations, such experimentation is not “without risk to the rest of the country.”174 Localities’ policies that antagonize other countries could sour relations with important trade partners, needed political allies, or belligerent enemies. Although such dangers should be seriously considered, they are often overstated while in other cases the larger benefits of state or local action in foreign relations may be worth the potential for some limited adverse consequences. Further, the federal government can preempt localities’ policies that it finds endanger the country or its foreign policy.

State trade missions are an example of state action directed abroad that carries little risk for the nation as a whole. States may tailor these missions to the special needs of their business communities. The diverse tactics and goals of these missions may ultimately be more successful at developing business ties with other countries than if all efforts were concentrated through the U.S. government.

A number of areas of formerly local or national concern that have become internationalized, such as environmental policy, also benefit from decentralization. Within the framework of minimum national standards, localities can experiment with creative new environmental policies, defraying risk for the country and creating support for successful policies.