“No state can rewrite our foreign policy to adapt to its own domestic policy. Power over foreign affairs is not shared by states; it is entrusted exclusively to the national government. It is not necessary to exercise it in such a way that it is consistent with state laws or state policy, whether translated into constitutions, statutes or judicial decrees. And state policy will be absolutely irrelevant to the judicial inquiry if the United States, which acts within its constitutional domain, works to enforce its foreign policy in court. 495 “New York`s action in this case essentially boils down to a rejection of part of the policy that understugs the recognition by that Soviet republic.” Our constitutional system does not recognize such power as a state. To allow it, it would be to sanction a dangerous invasion of federal authority. Indeed, “it would jeopardize friendly relations between governments and irritate the peace of nations.” It would tend to upset the balance of our external relations, which the political services of our national government have tried to establish zealously. . Dependence on contractual power has declined since World War II, as presidents increasingly turn to the use of executive agreements as a means of ensuring unilateral control of U.S. foreign relations. If the president acts unilaterally, the agreement is called a “single executive agreement.” If the president acts with the agreement of a simple majority of both houses of Congress, the agreement is called “legislative and executive agreement.” Presidents have a “margin of appreciation” in deciding whether they wish to pursue an international agreement in the form of a treaty, a single executive agreement or in the form of a legislative and executive agreement. The Speaker`s decision generally depends on political factors, including the likelihood of obtaining Senate approval. Presidents have often chosen to exclude the Senate from concluding a number of controversial and historic international pacts on the channel of executive agreements, including the basic destroyer agreement with Britain in 1940, the Yalta and Potsdam Accords of 1945, the Vietnam Peace Agreement of 1973 and the Sinai Accords of 1975. Zschernig had been dormant for some time and, although it was recently dealt with by the Court, it remains the only holding company in which the Court applied dormant foreign policy power to make state law too low.
In the 1990s, there was renewed academic interest in Zschernig, when some national and local governments sought ways to express dissatisfaction with foreign governments` human rights policy or to restrict trade with non-favoured countries.20 Christmas Signs. B, Michael D. Ramsey, The Power of the States in Foreign Affairs: The Original Understanding of Foreign Policy Federalism, 75 Notre Dame L. Rev. 341 (1999) ; Carlos Manuel Vazquez, Whither Zschernig?, 46 Vill. L. Rev. 1259 (2001); Jack L. Goldsmith, Federal Courts, Foreign Affairs and Federalism, 83 Va. L. Rev. 1617 (1997); Peter J.
Spiro, Foreign Relations Federalism, 70 U. Colo. L. Rev. 1223 (1999). See also Louis Henkin, Foreign Affairs and the Constitution 149-69 (2d ed. 1996). In 1999, the court repealed the Massachusetts Burmese Sanctions Act on the basis of the legal pre-emption situation and refused to consider the alternative holding of the Court of Appeal used by Zschernig.21Foot-Crosby/National Foreign Trade Council, 530 U.S. 363, 374 n.8 (2000).
For the application of the Zschernig Court of Appeal, see National Council of Foreign Trade v. Natsios, 181 F.3d 38, 49:61 (1st cir. 1999). Similarly, in 2003, the court found that the California Victim Insurance Relief Act had been anticipated as an interference with the foreign policy of the Confederation, which is reflected in the executive agreements, and although the court had discussed Zschernig at length, it did not consider it necessary to resolve issues related to its scope22Foot-NoteAmerican Ins. Ass`n v. Garamendi, 539 U.S. to 419-n.11 (2003). In the case of agreements between Congress and the executive branch and executive agreements, the nature of the termination may be dictated by the sub-jace contract