California – the country’s most populous state and the world’s sixth largest economy – is challenging the legal limits of federal power in foreign affairs. From climate to immigration to human rights, California is increasingly acting on its own.

In a new paper, Stanford Professors David Freeman Engstrom and Jeremy Weinstein ask a crucial legal and political question: What if California had a foreign policy? (Image credit: Jason Doiy / Getty Images)

California’s sub-federal activism is the topic of a new paper by Stanford professors David Freeman Engstrom and Jeremy M. Weinstein. Published March 26 in Washington Quarterly, Engstrom and Weinstein raise a crucial legal and political question: What if California had a foreign policy?

In key ways, they argue, California already does.

“Federalism was, until recently, the darling of conservatives,” said Engstrom, a professor of law. “But in the current moment, federalism’s valence has flipped. Sub-federal governments – including states, counties and cities – are driving progressive policy agendas and moving onto the global stage in a wide range of areas. And California is leading the charge.”

Taking a stance

Under the current administration, the incentives are high right now for California – and other states and municipalities – to advance priorities that are stuck in gridlock or moving backward at the federal level.

“As a former foreign policy-maker, the question I have been asking myself is: To what extent are we going to see progressive states challenge the Trump administration, particularly in the realm of foreign policy?” said Weinstein, a professor of political science, who also served as deputy to the U.S. ambassador to the United Nations during the Obama administration. “And how will the federal government respond if there are multiple voices speaking for the United States in the international arena?”

Take climate policy, for example.

In 2017, Gov. Jerry Brown met with China’s President Xi Jinping to negotiate a joint partnership to reduce carbon emissions. Ahead of the United Nations Climate Change Conference (COP23), Fiji’s Prime Minister Frank Bainimarama, president of the conference, named Brown special adviser for states and regions. When President Trump pulled out of the Paris climate accord, hundreds of sub-federal governments – including dozens of towns and cities in California – pledged to abide by the agreement.

But these are only recent cases. In 2013, well before the Trump administration, California began to connect its cap-and-trade system regulating how companies emit greenhouse gases to provinces in Canada. The result is a sub-federal system for regulating carbon that spans international borders.

Constitutional erosion

But there’s a problem with all this sub-federal activism, according to Engstrom and Weinstein: It might run afoul of the U.S. Constitution.

“One problem is that the Constitution says that states aren’t supposed to enter into agreements with other states, whether domestic or foreign, except with congressional consent,” said Engstrom, noting that could include California’s cap-and-trade linkages, and Congress can disallow them if it wants.

The conventional view of foreign affairs is based on the “one-voice doctrine,” a premise that the federal government must speak as a cohesive unit on foreign affairs, which Weinstein said is out of sync with reality. While working in government, Weinstein helped shepherd a range of international initiatives including the Open Government Partnership, an effort to engage national and sub-national governments in promoting transparency. Initiatives like this show how the one-voice doctrine does not match up with what is taking place.

“Anyone who has worked in the foreign policy space will tell you that the global stage is an increasingly crowded place, with nongovernmental organizations, multinational corporations and every level of government vying for influence and exercising their voice,” said Weinstein.

The “one-voice” idea is also legally vulnerable.

“We are starting to see some fissures and cracks in the doctrine,” said Engstrom. He and Weinstein cite recent legal cases that have opened up room for states to maneuver. For instance, in 2003 the U.S. Supreme Court invalidated a California law that required insurance companies to provide information about policies related to Holocaust victims and survivors. What makes the case significant, Engstrom and Weinstein note, is that the Supreme Court, in finding the state law preempted, said that its resolution of federal-state conflict in future cases would turn at least in part on the strength and the importance of the state concern.

“The idea is that, where the state is using its more traditional police powers to protect its people, the one-voice doctrine might need to be relaxed a bit,” Engstrom said.

California is not alone in its attempt to build a legal case and infrastructure for an expanded role in foreign policy. Massachusetts challenged the federal government in 2007 in a case targeting the Environmental Protection Agency’s failure to regulate carbon emissions. The state was able to convince the Supreme Court that the threat to its coastline and land was a sufficiently strong interest to justify a lawsuit, Engstrom said.

“That type of precedent is another type of crack. In effect, the Supreme Court is on record as saying that states have strong interests when it comes to climate change,” said Engstrom, who views this judicial precedent as key leverage for California going forward.

David Freeman Engstrom is a professor of law and associate dean for strategic planning at Stanford Law School. Jeremy Weinstein, professor of political science, is also a senior fellow at the Freeman Spogli Institute for International Studies and the Stanford Institute for Economic Policy Research. Weinstein also serves as the director of the Stanford Global Studies Division.