From the early days of this nation forward, the Supreme Court has held that only the federal government can set foreign policy. The Constitution isn’t exactly vague on that point; Article I declares that “No state shall enter into any Treaty, Alliance or Confederation.”
Nevertheless, state and local governments have over the years sought to promote themselves and build relations beyond U.S. borders. They launched trade missions, recruited foreign businesses and investors, and even took part in boycotts against foreign governments. And in 2013, the state of California established a carbon-emissions cap-and-trade program with the government of the Canadian province of Quebec to combat global warming.
On Wednesday, the Trump administration declared that California’s deal with Quebec constituted “an independent foreign policy in the area of greenhouse gas regulation.” The Justice Department filed suit against the state, the California Air Resources Board and several top officials in federal court in Sacramento, seeking to have the cap-and-trade program declared unconstitutional.
Gov. Gavin Newsom called the lawsuit a continuation of Trump’s “political vendetta against California, our climate policies and the health of our communities.” He also noted, rightly, that climate change is a global problem, and that the administration’s climate denialism and see-no-evil approach to polluters make “cross-border cooperation all the more necessary.”
But Newsom didn’t comment on the legal question, nor did Atty. Gen. Xavier Becerra, who simply cited the state’s long history on fighting climate change and voted not to back down. And it’s a really great question, because California’s deal with Quebec certainly looks like a “Treaty, Alliance or Confederation.”
Granted, the Founders were more interested in stopping states from negotiating military alliances with foreign empires or striking their own tariff deals with the country’s trading partners. And some legal scholars insist that states can engage in the aspects of foreign affairs that the Constitution didn’t explicitly put off-limits.
The Supreme Court hasn’t dealt with the specific issue of cross-border compacts, but a ruling that may be relevant is Zschernig vs. Miller in 1968. That case dealt with an Oregon law barring heirs in communist countries from receiving bequests from Oregon estates unless their countries gave heirs in Oregon the same rights. The Supreme Court tossed it out, ruling that the federal government has exclusive dominion even over foreign policy matters that Congress and the president haven’t addressed.
In other words, Washington’s inaction on climate change may not give the states license to cut their own emission-cutting deals with other countries.
A good argument may still be made that states aren’t affecting the federal government’s ability to set a uniform foreign policy when they enter cap-and-trade pacts. California’s action affected only California businesses. And under the federal Clean Air Act, the state has the duty to regulate emissions by companies within its borders. Its deal with Canada extended directly from that regulatory obligation.
And the public clearly gains nothing from this lawsuit. It serves no one’s interest; not the public’s interest in slowing climate change, nor businesses’ interests in meeting state emissions limits — without partners in Quebec that can offer emission credits, California businesses are likely to find it harder to meet the state’s emissions limits.
On second thought, it serves one person’s interest. And that’s why the Justice Department will be using some of your tax dollars to explore whether California overstepped its authority in trying to reduce the greenhouse gas emissions that are destroying the planet.