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This was a fascinating article about states have sanctions against the Islamic Republic of Iran.  I started to see red.  States cannot constitutionally have a foreign policy.  It is clear and here is the Constitutional provision:

“No State shall enter into any Treaty, Alliance, orConfederation; …”


“No State shall, without the Consent of Congress,…enter
into any Agreement or Compact with another State, or with a for-
eign Power,…”

Now certainly states can have policies in place so as to implement the economic sanctions.  They are the law.  Like it or not.  But this sounds excessive and punitive:

In a little known aspect of Iran’s international isolation, around two dozen states have enacted measures punishing companies operating in certain sectors of its economy, directing public pension funds with billions of dollars in assets to divest from the firms and sometimes barring them from public contracts.


Though U.S. states have often coordinated their measures with federal sanctions on Iran, their divestment actions sometimes take a tougher line on foreign firms with Iran links than is the case under federal policy.


“Our investment sanctions are not tied in any way to President Obama’s negotiations with the Iranians,” said Don Gaetz, a Republican Florida state senator who sponsored legislation in 2007 punishing companies with investments in Iran’s energy sector.

“They would have to change their behavior dramatically and we would not be necessarily guided by President Obama or any other president’s opinion about the Iranians,” Gaetz said.


So any independent sanctions ought to be unconstitutional.  In Crosby v. National Foreign Trade Council, the independent and unauthorized sanctions against Myanmar (Burma) were struck down – not admittedly due to the foreign policy issue but the related issue of preemption.  (I blogged on this here.)  Now there was an Act of Congress and signed by the President that authorized state sanctions against Iran:

The first divestment campaigns gathered steam in 2008 and 2009, and received a federal stamp of approval in 2010 with passage of the Comprehensive Iran Sanctions, Accountability, and Divestment Act, which encouraged states to pass such measures.

But some, including the National Foreign Trade Council, the original plaintiff in Crosby, do not agree:

Critics of the laws say they are an unnecessary interference in a crucial area of U.S. policy by states that usually have little expertise in foreign affairs.

“Foreign policy is uniquely a case where the government needs to act with one voice,” said William Reinsch, president of the National Foreign Trade Council, which represents major U.S. companies and advocates against unilateral sanctions.


I do not like economic sanctions because they hurt innocents in nations where the people have limited voice and therefore such sanctions are immoral and can violate the general principle of non-intervention.  And sanctions targeted against individuals better have a system of review so that a “defendant” has some hearing potential to force the government to prove its charge – human rights violations, murder etc. to prevent punishment of innocents.

So I think the Congress ought to revisit the issue of encouraging states to have economic sanctions against various nations.  And states need to be careful.  I disagree with the attitude of the Florida state senator who said basically we can be the judge of whether the President is right on sanctions.  The President is always right on foreign policy – even when he’s wrong.  States have NO foreign policy power.  Period.


About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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