Amicus Curiae Brief — United States v. Locke

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No. 98-1706

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Ju the Suprenw Court of the United States

THE INTERNATIONAL ASSOCIATION OF INDEPENDENT

TANKER OWNERS (INTERTANKO),

Petitioner,

V.

GARY LOCKE, GOVERNOR OF THE STATE OF

WASHINGTON, ET AL..,

Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF AMICUS CURIAE OF

WASHINGTON LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

DANIEL J. POPEO

R. SHAWN GUNNARSON

Counsel of Record

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 588-0302

October 22, 1999

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QUESTIONS PRESENTED

1. Whether federal statutes, regulations, and inter-

national treaty commitments of the United States

that prescribe comprehensive standards for tank

vessel operations, personnel qualifications, and

manning expressly or impliedly preempt attempts

by an agency of the State of Washington to enforce

regulations that impose different standards and

requirements governing the same subject matters

aboard the same tank vessels.

2. Whether an individual state may deny entry

to, or penalize for non-compliance with state safety

and environmental protection regulations, a vessel

that has been found by the vessel’s nation of registry

and the United States Government to be eligible to

enter the United States under multilateral treaty

commitments, federal law, and federal regulations

governing safety and environmental protection.

TABLE OF CONTENTS

QUESTIONS PRESENTED ..0.0.0..0....cccccccccccessseseenens

TABLE OF AUTHORITIES. ............cccccccccccseseseseseseees

THE PRESUMPTION AGAINST PREEMPTION

SHOULD NOT BE INDULGED WHERE THE

CHALLENGED STATE LAW OCCUPIES AN

AREA TRADITIONALLY RESERVED TO THE

FEDERAL GOVERNMENT ...........ccccccccccceeeesees

A.

Evidence of Original Understanding Tends

to Establish that the National Government

Possesses an Especially Strong Claim to

Authority in the Related Areas of Foreign

Affairs and Foreign Commerce .................

The Constitution Invests the Federal

Government with Power to Bind the Nation

in Matters of Foreign Affairs and Foreign

EE GE a

This Court's Decisions Repeatedly

Emphasize that the Federal Government

Has Paramount Authority to Conduct

Foreign Affairs and Regulate Foreign

dca incatesnbeenennentenenate

The Presumption Against Preemption

Should Not Be Indulged In this Case,

Because Washington's BAP Regulations

16

21

iv

Occupy Areas Traditionally Reserved to 24

the Federal Government

COSTE IEIDS nesiensnsnniinasanticiomteeininneiniektdabunpatiiaiad 30

TABLE OF AUTHORITIES

Page

Cases:

American Dredging Co. v. Miller, 510 U.S. 443

SETEUED siiloencccesionianennieniabieniainaitinatabieaciiehisitachinataansistaniuas 4

Buttfield v. Stranahan, 192 U.S. 470 (1904) ...... 23

Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483

og RR Lia 4

The Chinese Exclusion Case, 130 U.S. 581 (1889) 22

Cipollone v. Liggett Group, Inc., 505 U.S. 504

(RIE Re eR a nee aew Oe 8-9

Container Corp. v. Franchise Tax Board, 463 U.S.

Re EAE STE a eee ML Ry Rew 28

Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta,

ie Og RR SUN SO re ere i)

H. F. Hood & Sons v. Du Mond, 336 U.S. 525

6 Ee ernsstiasvisininninicudjneneesicnptiatigigianitlapeneniedin 15-16

Henderson v. Mayor of New York, 92 U.S. 259

8 SRG SF SE ee ee 25

Hines v. Davidowitz, 312 U.S. 52 (1941).......21, 22, 26, 28

Holmes v. Jennison, 39 U.S. (14 Pet.) 540 (1840) 21

Japan Line, Ltd. v. County of Los Angeles, 441

Sr Ne ID dhe tethinencientntten ited Racists 26

Jones v. Rath Packing Co., 430 U.S. 519 (1977) 8

Kelly v. Washington, 302 U.S. 1 (1937) ...00000000..... 25

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

I “etsiicenniectipddslainisidtinditiceaetinmssiit hata tacadia tte 8

Medtronic, Inc. v. Lohr, 116 S. Ct. 2240 (1996). 8, 9

Michelin Tire Corp. v. Wages, 423 U.S. 276 (1976) 9, 23

Pacific Gas & Elec. Co. v. State Energy Resources

Conservation and Dev. Comm'n, 461 U.S. 190

(1963) ......... aceiieiaentidlipaceaieadedisiasaissiiilateadaanitintiiendeases 8

Printz v. United States, 117 S. Ct. 2365 (1997) . 18

Ray v. Atlantic Richfield Co., 435 U.S.151(1977) 4-5, 9

Retail Clerks Int'l Assoc. v. Schermerhorn, 375

BE II ccthetiiidtceipintitbitnindalinecieininesapainsistilinsntnnes 8

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

NITED di dilicincineciesieieanivpaihinemantiatiidipigte siipsemssmtetininitenens 9, 24

State v. Pollock, 136 Wash. 25, 29 (1925) ............ 3

United States v. Pink, 315 U.S. 203 (1942) ......... 22

vi

Wardair Canada, Inc. v. Florida Dep’t of Revenue,

GEE URE. 6 CED. cqncdecsecntinmnicinincientpisinsinnateans 27

Zschernig v. Miller, 389 U.S. 429 (1968) ............... 23

Constitutional Provisions, Statutes, Rules, and Other

Governmental Materials:

Act of Dec. 31, 1792, ch. 1, 1 Stat. 287 ................. 25

Act of Sept. 1, 1789, ch. 11, 1 Stat. 55 ................. 25

Act to Prevent Pollution from Ships, Pub. L. No.

CB-GER, GS TRE, TG evtenteererntiestinnin 28

Letter from Douglas J. Bennett, Jr. (Asst. Sec’y

for Cong. Affairs) to Cong. John Murphy

(Chair, House Merchant Marine & Fisheries

a 28

Letter from the Embassy of Canada to the U.S.

Department of State (May 7, 1997) (Note No.

ID sescctcasithinisnsnibccepnnidiniesiaphrecinsniintinesadibiniiaasdiddaiadtititetiate 29

Note Verbale from the Royal Danish Embassy

to the U.S. Department of State (June 14,

1996) (File No. 60 USA.1/4) .0.......:cccccccccccceeeeeees 29

Oil Pollution Act of 1990, Pub. L. No. 101-380,

BG Ts SEE cadintcneetesacetibhiictinalincsteiatintinenintesscniienigiasinns 4, 28

Port and Tanker Safety Act of 1978, Pub. L. No.

8 fl UY , ee 4, 28

Ports and Waterways Safety Act of 1972, Pub.

L. No. 92-340, 86 Stat. 424 0... ccccccecceeeenees 4, 28

S. Rep. No. 92-248 (1971) ......ccccccccccceceeeeeereseeeeeeneensnes 27

UP. GR. GR. RD chceecnieteceminvtcnviticcapnitgtititmmeieens 7

Tank Vessel Act of 1936, Pub. L. No. 74-765, 49

BD, “TED cccitinctnssisniietinensitecndrtppinsinatdsidimtcncantitinbiguentians 4, 28

GD Cs © Be cctecisetintniensenttuanintaiettnsinttiniinngingninn 25

Fe Oe ED tecciererctcdasnenirtttniesecinctantiobinngingtiiins 28

Ck 2) ee ee 28

CE, GI ONE, BO ccescsrtseectenietnenicrentntnesenstapentiintcen 16-17

OG eee 17-18

CE, SH CR Fa sciecenenenteentttenitninersenenerticimnnseh 17

U.S. CONST. art. VI (Supremacy Clause) ............. passim

WASH. ADMIN. CODE § 317-211-020 ........ccccccccccceeeesees 27

WASH. ADMIN. CODE § 317-211-200 .0........cccccccceeeseees 2

vii

WASH. ADMIN. CODE § 317-21-230 0.0...

WASH. ADMIN. CODE § 317-21-235 oo...cccccccccccceeeee

WASH. ADMIN. CODE § 317-211-245 ooon.cccccceccccceeeee

WASH. ADMIN. CODE § 317-21-250 oo...

WASH. ADMIN. CODE § 317-21-255 o.oo.

WASH. ADMIN. CODE § 317-21-265(a) .0000..

es ee, Ce MR WF Bb eocieepinecttincnencepntictencescnses

1991 Wash. Laws ch. 200 § 101(3)(e) oon.

WASH. REV. CODE § 88.46.040(1) 00000

WASH. REV. CODE § 88.46.040(3) oo...

Other Materials:

Craig H. Allen, Federalism in the Era of Interna

tional Standards: Federal and State Govern-

ment Regulation of Merchant Vessels in the

United States (Part I), 29 J. MAR. L. & Com.

ED cecntelaad aanieinenilalinceesetibinistthindadetitapsilipsdiiensaie

Craig H. Allen, Federalism in the Era of Interna

tional Standards: Federal and State Govern-

ment Regulation of Merchant Vessels in the

United States (Part II), 29 J. MAR. L. & Com.

SE CED. tcsciicsecsintinedioataaneititiatinienetivebecihiinitiitich iat taeda su

Craig H. Allen, Federalism in the Era of Interna

tional Standards: Federal and State Govern-

ment Regulation of Merchant Vessels in the

United States (Part III), 30 J. MAR. L. & Com.

ae IE Riacnictiniatinicsnsipaiianbeditaanmenisciitiiiatemisecnibasiiige

STANLEY ELKINS & ERIC MCKITRICK, THE AGE OF

I i

JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL

STATE CONVENTIONS ON THE ADOPTION OF THE

FEDERAL CONSTITUTION, AS RECOMMENDED BY

THE GENERAL CONVENTION AT PHILADELPHIA

bf LS RR ee eee

THE FEDERALIST (Jacob E. Cooke ed., 1961) .....

JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS

AND IDEAS IN THE MAKING OF THE CONSTITU-

, RENE RRC re NESS ASS Sve

bt

Nw 0 WH DW WH NW Ww

J

_

24, 25

27

27, 29

25

14-15

18-20

10-12

viii

THE RECORDS OF THE FEDERAL CONVENTION OF

1787 (Max Farrand ed., 1966) .................00000

JOSEPH STORY, COMMENTARIES ON THE CONSTITU

TION OF THE UNITED STATES (Carolina Aca-

demic Press 1987) (abridged ed., 1833) .........

INTEREST OF AMICUS CURIAE

The Washington Legal Foundation (WLF) is a

nonprofit public interest law and policy center based

in Washington, D.C., with supporters in all 50 States.

WLF regularly appears in legal proceedings before

federal and state courts to defend and promote free

enterprise and individual rights. WLF has appeared

before this Court in cases involving preemption, see

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996); Freight-

liner Corp. v. Myrick, 514 U.S. 280 (1995), and the

foreign affairs powers of the United States, see

Perpich v. United States Dep't of Defense, 496 U.S.

334 (1990). WLF submits this brief in support of

Petitioner and with the consent of all parties. Letters

of consent have been filed with the Clerk of the

Court.'

STATEMENT

In the interest of judicial economy, WLF

incorporates by reference the factual statement as

it appears in the petition for writ of certiorari of the

International Association of Independent Tanker

Owners (Intertanko). Additionally, we wish to

emphasize certain aspects of the record.

In response to the 1989 Exxon Valdez oil spill,

see Wash. Br. Opp. at 1, the Washington Legislature

enacted a statute codified at Chapter 88.46 of the

Revised Code of Washington. The statute requires

every oil tanker owner or operator whose vessel enters

state waters to file “an oil spill prevention plan,”

WASH. REV. CODE § 88.46.040(1), reprinted in Pet. App.

346a, with the Washington Office of Marine Safety

(OMS). Under the statute the OMS “shall only

No counsel for a party authored this brief in whole or in

part, and no person or entity, other than the Washington Legal

Foundation, its supporters, and its counsel made a monetary

contribution to the preparation and submission of this brief.

2

approve a prevention plan if it provides the best

achievable protection from damages caused by the

discharge of oil into the waters of the state and if

it determines that the plan meets the requirements

of this section and rules adopted by the office.”

WASH. REV. CODE § 88.46.040(3), reprinted in id. at

347a-348a.

Pursuant to its statutory mandate, the OMS has

issued several rules “establish{ing] standards for spill

prevention plans.” WASH. REV. CODE § 88.46.040(1),

reprinted in id. at 346a. OMS rules cover a broad

range of matters, including “watch practices, policies,

and procedures,” WASH. ADMIN. CODE § 317-21-200,

reprinted in id. at 318a; the requirement that “{aJn

oil spill prevention plan must describe a compre-

hensive training program that requires training

beyond the training necessary to obtain a license or

merchant marine document,” WASH. ADMIN. CODE §

317-21-230, reprinted in id. at 330a; “policies,

procedures, and practices for alcohol and drug

testing,” WASH. ADMIN. CODE § 317-21-235, reprinted

in id. at 334a; the number of hours that crew

members may work each day, see WASH. ADMIN. CODE

§ 317-21-245, reprinted in id. at 339a; the requirement

that “fa]ll licensed deck officers and the vessel’s

designated person in charge . . . are proficient in

English and speak a language understood and spoken

by subordinate officers and unlicensed crew,” WASH.

ADMIN. CODE § 317-21-250, reprinted in id. at 340a;

and the requirement to keep detailed training and

work hour records, see WASH. ADMIN. CODE § 317-21-

255, reprinted in id.

Intertanko brought an action for injunctive and

declaratory relief against the State of Washington and

State officials in the United States District Court for

the Western District of Washington. It claimed that

16 of Washington’s “best achievable protection” (BAP)

3

regulations, including those described above, were

preempted by federal law and treaties ratified by the

United States. See id. at 46a. On cross-motions for

summary judgment the court ruled that neither

express, conflict, see id. at 61a-65a, nor implied field

preemption, see id. at 60a-6la n.10, invalidated the

challenged regulations. The court also found that

the regulations did not run afoul of the Interstate

Commerce Clause, the foreign affairs power of the

United States, or the provision of the Washington

State Constitution, see WASH. CONST. art. XXIV, § 1,

setting a three-mile limit on the State’s “jurisdiction

and dominion,” State v. Pollock, 136 Wash. 25, 29

(1925). See Pet. App. 66a-73a. Intertanko appealed

to the U.S. Court of Appeals for the Ninth Circuit,

and the United States intervened “in general support

of Intertanko’s position.” Pet. 13.

The Ninth Circuit affirmed in part and reversed

in part, upholding the validity of the challenged

regulations with one exception. On preemption

grounds it struck down § 317-21-265(a) of the

Washington Administrative Code, “{blecause the

[global positioning system] and radar requirements

are virtually identical to the navigational equipment

required by the Washington Tanker Law.” Pet. App.

3la. In every other respect, however, the court

concluded that the challenged BAP regulations passed

muster under the Supremacy Clause and the

Interstate Commerce Clause and did _ not

impermissibly intrude on the foreign affairs authority

of the United States. See id. at 19a-29a, 32a-37a.

The court cited four reasons for rejecting

Intertanko’s preemption claim with respect to all the

challenged BAP regulations except for § 317-21-265(a).

First, it agreed with Washington that “Congress

expressly indicated its intent not to preempt state

law in the field of oil-spill prevention when it passed

4

§ 1018 of the Oil Pollution Act of 1990... .” Id.

at 14a. To reach this conclusion the court declined

Intertanko’s invitation to construe § 1018 as being

“limited in its application to state laws concerning

liability and penalties.” Id. at 16a. The United States

asserted that a network of federal laws governing oil

tankers’ preempts the challenged BAP regulations,

even if § 1018 does not. See id. The court disagreed,

preferring instead to identify § 1018 as decisive

evidence of “Congress’s overarching purposes and

objectives . . . [iJn the field of tanker regulation,

“demonstrat[ing] Congress’s willingness to permit state

efforts in the areas of oil-spill prevention, removal,

liability, and compensation.” Pet. App. at 2la-22a.

Second, the court relied on Chevron U.S.A., Inc.

v. Hammond, 726 F.2d 483 (9"" Cir. 1984). There the

Ninth Circuit held that the Ports and Waterways

Safety Act, which “subjects to federal rule the design

and operating characteristics of oil tankers,” Ray v.

Atlantic Richfield Co., 435 U.S. 151, 154 (1977), and

the Port and Tanker Safety Act, which “requires the

Secretary of Transportation to establish regulations

addressing vessel management, drug and alcohol

testing, seafarer training and qualifications, casualty

reporting, seafarer discipline, manning, work hours,

pilotage, and language requirements,” Pet. App. 20a,

“dof ] not mandate international uniformity.”

Chevron, 726 F.2d at 493. Instead, the court below

reasoned, because the statutes authorize the Coast

Guard to set higher standards than those set by

international agreement, Congress intended “that the

international agreements set only minimum standards,

that strict international uniformity was unnecessary,

2 These include the Port and Tanker Safety Act of 1978, Pub.

L. No. 95-474, 92 Stat. 471; the Ports and Waterways Safety Act

of 1972, Pub. L. No. 92-340, 86 Stat. 424; and the Tank Vessel

Act of 1936, Pub. L. No. 74-765, 49 Stat. 1889.

LE —<£<_

5

and that standards stricter than the international

minimums could be desirable in waters subject to

federal jurisdiction.” Id. at 494.

Third, the court narrowly construed Ray to require

preemption only when a state statute governs oil

tanker “design and construction characteristics.” Ray,

435 U.S. at 168. Based on this reading of Ray, the

court rebuffed Intertanko’s claim that “federal

regulation of oil tankers . . . is so comprehensive as

to preempt impliedly the field of tanker regulation.”

Pet. App. at 25a.

Fourth, the court refused to consider arguments

by the United States that certain BAP regulations

conflict with international agreements governing the

right of innocent passage and transit in the Strait

of San Juan de Fuca. See id. at 24a. The court

explained its refusal by suggesting that since the

United States raised these arguments “for the first

time on appeal... the state defendants have not

had the opportunity to develop the record,” id. at

24a-25a, regarding the pertinent agreements.

Intertanko and the United States petitioned the

court of appeals for rehearing and rehearing en banc,

which the court denied. See Pet. App. at 76a. Both

parties subsequently filed petitions for certiorari in

this Court, which were granted and consolidated for

argument. See United States v. Locke, et al., 148 F.3d

1053 (9 Cir. 1999), cert. granted, 68 U.S.L.W. 3152

(U.S. Sept. 14, 1999) (No. 98-1701); International

Association of Independent Tanker Owners v. Locke,

et al., 148 F.3d 1053 (9" Cir. 1999), cert. granted, 68

U.S.L.W. 3152 (U.S. Sept. 14, 1999) (No. 98-1706).

SUMMARY OF ARGUMENT

The State of Washington has attempted to regulate

all oil tankers operating in its waters. Intertanko

claims that several of the State’s regulations are

preempted or are otherwise constitutionally invalid.

Ordinarily this Court would evaluate Intertanko’s

preemption claim by starting with the presumption

that Congress did not preempt Washington’s

regulations. We argue that that presumption is

inapposite in this case.

The presumption against preemption should not

be indulged when the state law at issue occupies an

area traditionally reserved to the federal government.

Constitutional history and text, as well as this Court’s

precedent, affirm that foreign commerce and foreign

affairs have been long regarded as areas of special

federal competence. America’s experience under the

Articles of Confederation illustrate the perils of letting

any one State violate laws and treaties enacted on

behalf of the entire Nation. Statements by those who

wrote and ratified the Constitution, as well as the

text of the Constitution itself, furnish ample evidence

that the federal government was deliberately invested

with sufficient power to bind the country in matters

relating to foreign affairs and foreign commerce. This

Court’s decisions have followed a consistent path of

affirming the federal government’s paramount

authority in these areas.

Washington’s BAP regulations do not qualify for

the presumption against preemption for three reasons.

First, they attempt to govern in areas outside the

domain traditionally allotted to state police powers.

Second, they cover matters of national and

international, rather than local, significance. Third,

by attempting to supplant international standards,

they expose the Nation to the risks of impeded

commerce and international retaliation.

7

ARGUMENT

The Questions Presented ask, in essence,

“(wjhether federal statutes, regulations, and

international treaty commitments of the United

States” preempt Washington’s statutes and regulations

purporting to govern oil tankers operating in state

waters and “[wJhether an individual state may deny

entry to, or penalize” vessels that comply with federal

law and international safety and environmental

standards but not with Washington law. “(Fairly

included,” Sup. CT. R. 14.1(a), is a further question.

How much weight should the Court give the

presumption against preemption when the challenged

state laws fall into an area traditionally reserved to

the federal government? We contend that the Court

should give this presumption little if any weight in

this case. Neither constitutional history and text nor

this Court’s precedent supports that presumption

when, as here, state law occupies the fields of foreign

commerce and foreign affairs.

THE PRESUMPTION AGAINST PREEMPTION

SHOULD NOT BE INDULGED WHERE THE

CHALLENGED STATE LAW OCCUPIES AN AREA

TRADITIONALLY RESERVED TO THE FEDERAL

GOVERNMENT

The doctrine of preemption has its constitutional

roots in the Supremacy Clause:

This Constitution, and the laws of the

United States which shall be made in

pursuance thereof; and all treaties made, or

which shall be made, under the authority of

the United States, shall be the supreme law

of the land; and the judges in every state shall

be bound thereby, anything in the Constitution

8

or laws of any State to the contrary notwith-

standing.

U.S. CONST. art. VI. The Court has long applied this

clause by declining to enforce state laws that conflict

with federal law. See McCulloch v. Maryland, 17 U.S.

(4 Wheat.) 316, 427 (1819). When seeking to determine

whether a particular state law must give way to a

federal provision, the Court has repeatedly taught

that “(t]he purpose of Congress is the ultimate

touchstone.” Retail Clerks Int’l Assoc. v. Schermerhorn,

375 U.S. 96, 103 (1963).

Congress’ intent, of course, is primarily

discerned from the language of the pre-emption

statute and the “statutory framework”

surrounding it... [and] the “structure and

purpose of the statute as a whole”... as

revealed not only in the text, but through the

reviewing court’s reasoned understanding of

the way in which Congress intended the statute

and its surrounding regulatory scheme to affect

business, consumers, and the law.

Medtronic, Inc. v. Lohr, 116 S. Ct. 2240, 2250-51 (1996)

(citations omitted).

Preemption may occur in three ways. First,

Congress’s intent to preempt state law may be

“explicitly stated in the statute’s language or

implicitly contained in its structure and purpose.”

Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977).

Second, a state law is preempted if it poses an actual

conflict with federal law. See Pacific Gas & Elec.

Co. v. State Energy Resources Conservation and Dev.

Comm ’n, 461 U.S. 190, 204 (1983). Third, a state law

is preempted “if federal law so thoroughly occupies

a legislative field ‘as to make reasonable the inference

that Congress left no room for the States to

supplement it.”” Cipollone v. Liggett Group, Inc., 505

U.S. 504, 516 (1992) (quoting Fidelity Fed. Sav. &

Loan Assn. v. De la Cuesta, 458 U.S. 141, 153 (1982)).

Coloring this analysis is the Court’s oft-repeated

“assumption that the historic police powers of the

States were not to be superseded by . . . Federal Act

unless that was the clear and manifest purpose of

Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 230 (1947); see, e.g., Cipollone, 505 U.S. at 516;

Ray v. Atlantic Richfield Co., 435 U.S. 151, 157 (1978).

The Court has recently explained that its presumption

that “Congress does not cavalierly pre-empt state-law

causes of action,” Medtronic, Inc. v. Lohr, 116 S. Ct.

2240, 2250 (1996), rests on the principle that “the

States are independent sovereigns in our federal

system.” Id. Nevertheless, this presumption finds

no support in history or precedent when the state

law at issue occupies an area traditionally regarded

as the province of the federal government. To better

understand why this is so, it will be instructive to

recall America’s experience under the Articles of

Confederation.

A. The Federal Government Was Originally

Understood to Possesses an Especially Strong

Claim to Authority in Foreign Affairs and

Foreign Commerce

As this Court has acknowledged, “One of the major

defects of the Articles of Confederation, and a

compelling reason for the calling of the Constitutional

Convention of 1787, was the fact that the Articles

essentially left the individual States free to burden

commerce both among themselves and with foreign

countries very much as they pleased.” Michelin Tire

Corp. v. Wages, 423 U.S. 276, 283 (1976); see also

American Dredging Co. v. Miller, 510 U.S. 443, 466

(1994) (Kennedy, J., dissenting) (“Comity with other

10

nations and among the States was a primary aim of

the Constitution.”); JOSEPH STORY, COMMENTARIES ON

THE CONSTITUTION OF THE UNITED STATES 99 (Carolina

Academic Press 1987) (abridged ed., 1833) (hereinafter

Story) (“{TJhe want of any power in congress to

regulate foreign or domestic commerce was deemed

a leading defect in the confederation.”). On a closely

related point, one historian has observed that “the

most serious doubts about the adequacy of the

Articles of Confederation arose over the inability of

Congress to frame and implement satisfactory foreign

policies.” JACK N. RAKOVE, ORIGINAL MEANINGS:

POLITICS AND IDEAS IN THE MAKING OF THE

CONSTITUTION 26 (1996). Those doubts began to arise

soon after America signed the Peace of 1783 with

Great Britain, when it faced three crises in foreign

relations.

The peace treaty itself paradoxically led to the

first crisis. It entitled American and British creditors

to recover good faith debts “with no lawful

impediment,” id. at 27, and required Congress to get

the states to allow British subjects and American

loyalists to recover their confiscated property. See

id. “Both articles placed Congress in the awkward

position of guaranteeing what it lacked the

constitutional authority to deliver: the compliance

of state legislatures and courts with a national

commitment made to a foreign power.” Id. The

British retaliated by keeping their forts in Oswego,

Niagra, and Detroit, along the northwestern frontier,

in violation of the peace treaty. Id.

By 1784, a second crisis erupted when Great

Britain closed her home island and West Indies ports

to American shipping. At the same time, British

ships entered American ports at will. See id.

“Lacking authority to regulate interstate or foreign

commerce, Congress could neither devise nor impose

ll

a uniform set of restrictions on British ships. And

this constitutional debility in turn diminished the

prospects for advancing American trading interests

through the negotiation of a satisfactory commercial

treaty with Britain ... .” Id. at 26-27.

The third major foreign policy crisis arose when,

in April 1784, Spain barred American ships from

entering New Orleans and navigating the lower

Mississippi River. See id. at 27. Because there was

effectively no American navy to counter Spain's

action, American frontiersmen were cut off from

exporting their goods via the Gulf of Mexico. See id.

This posed a grave threat to the safety of America’s

western territories. As events then stood, “{sJhould

the weakness of the Union force western settlers to

accommodate themselves to Spain, control of the

regions lying between the Appalachian Mountains

and the Mississippi would be lost to the United

States.” Id.

Such foreign policy crises, which predominantly

centered on disputes over international shipping and

navigation, eventually propelled Americans toward

a stronger national government.

([T}hese concerns of foreign policy dominated

efforts to strengthen the confederation.

Proposals for reform developed along two lines.

One involved clarifying the authority that

might be presumed already to lie in Congress

by virtue of its general power to make treaties

with foreign nations. Here the great challenge

was to establish the principle that national

obligations should prevail over the legislative

acts of sovereign states. .. . The other avenue

of reform centered on enhancing federal power

in an area where experience indicated that the

national interest required that Congress be

given what it currently lacked: greater authority

12

to regulate both foreign and _ interstate

commerce.

Id. at 28. However, such reforms “foundered on the

requirement of unanimous state ratification,” id., until

1787, when delegates gathered at Philadelphia “for

the sole and express purpose of revising the Articles

of Confederation.” 3 THE RECORDS OF THE FEDERAL

CONVENTION OF 1787, at 14 (Max Farrand ed., 1966)

(Resolution of Congress, dated Feb. 21, 1787).

On May 29, 1787, Governor Edmund Randolph of

Virginia stood in Independence Hall and introduced

the Virginia Plan, the basis for the original

Constitution. See 1 id. at 18-19. To persuade other

convention delegates to abandon the Articles of

Confederation in favor of a new form of government,

Governor Randolph surveyed “the defects of the

confederation.” Id. at 18. He named only five, of

which two are relevant here. First, Randolph noted

that “the confederation produced no security against

foreign invasion; congress not being permitted to

prevent a war nor to support it by th[feir] own

authority. . . . [TJhey could not cause infractions of

treaties or of the law of nations, to be punished. .

.. {PJarticular states might by their conduct provoke

war without controul.” Id. at 19. Second, Randolph

observed “that there were many advantages, which

the U. S. might acquire, which were not attainable

under the confederation—such as . . . counteraction

of the commercial regulations of other nations.” Id.

Three weeks later, on June 19", James Madison

addressed the convention in opposition to the Virginia

Plan’s great rival, the New Jersey Plan, which

proposed a weaker, more state-centered form of

government. See id. at 314-22. Madison’s very first

criticisms were directed at that New Jersey Plan’s

failure to vest authority over foreign affairs in a

strong national government:

13

Will it prevent those violations of the law

of nations & of Treaties which if not

prevented must involve us in the calamities

of foreign wars? The tendency of the States

to these violations has been manifested in

sundry instances. The files of Congs.

contain complaints already, from almost

every nation with which treaties have been

formed. Hitherto indulgence has been

shewn to us. This cannot be the permanent

disposition of foreign nations. A rupture

with other powers is among the greatest of

national calamities. It ought therefore to

be effectually provided that no part of a

nation shall have it in its power to bring

them on the whole. The existing

confederacy does <not> sufficiently provide

against this evil. The proposed amendment

to it does not supply the omission. It

leaves the will of the States as uncontrouled

as ever.

Id. at 316.

Madison’s criticism rested on the connection he

discerned between treaties and wars. He perceived

that when states are free to violate treaties, the

consequence may be “the calamities of foreign wars,”

id., which “no part of a nation [should] have it in

its power to bring . . . on the whole.” Id. In a

nutshell, Madison’s argument was that the Articles

of Confederation allowed a single state to expose the

entire nation to the risk of war by leaving them free

to violate treaties and that the New Jersey Plan failed

to create a national government strong enough to stop

it. Given this and other weaknesses, the New Jersey

Plan was rejected. Id. at 322.

Once the Constitution was written and proposed

to the states, delegates to various state ratifying

14

conventions expressed similar concerns about the

national government’s power to bind the entire Nation

to treaties. Madison himself, speaking before the

Virginia convention, described the humiliating

consequences of the Confederation’s impotence on

this point. “(FJoreign nations are unwilling to form

any treaties with us; they are apprized that our

general government cannot perform any of its

engagements, but that they may be violated at

pleasure by any of the states.” James Madison,

Speech in Virginia Ratifying Convention (June 6,

1788), reprinted in 3 JONATHAN ELLIOT, THE DEBATES

IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION

OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY

THE GENERAL CONVENTION AT PHILADELPHIA IN 1787,

at 135-136 (2d ed., 1836).

In South Carolina Charles Cotesworth Pinckney

emphasized the sanctity of treaties and the conse-

quences of the national government’s inability to

honor treaties under the Articles of Confederation.

If treaties entered into by Congress are not to

be held in the same sacred light in America,

what foreign nation will have any confidence

in us? Shall we not be stigmatized as a

faithless, unworthy people, if each member of

the Union may, with impunity, violate the

engagements entered into by the federal

government? Who will confide in us? Who will

treat with us if our practice should be

conformable to this doctrine? Have we not been

deceiving all nations, by holding forth to the

world, in the 9th Article of the old

Confederation, that Congress may make

treaties, if we, at the same time, entertain this

improper tenet, that each state may violate

them?

15

Speech of Charles Cotesworth Pinckney in the South

Carolina Ratifying Convention, Jan. 17, 1788, reprinted

in 4 id. at 278. Pinckney further pointed out that

allowing any State to violate a treaty subjects the

entire Nation to substantial risks. “[FJor we do not

enter into treaties as separate states, but as united

states; and all the members of the Union are

answerable for the breach of a treaty by any one of

them.” Id. at 279.

In the Massachusetts Ratifying Convention,

Thomas Dawes, Jr. underscored the weakness to

which America was reduced by her incapacity to bind

every State to international commercial agreements.

We are independent of each other, but we are

slaves to Europe. We have no uniformity in

duties, imposts, excises, or prohibitions.

Congress has no authority to withhold

advantages from foreigners, in order to obtain

advantages from them. By the 9th of the old

articles, Congress may enter into treaties and

alliances under certain provisoes; but Congress

cannot pledge that a single state shall not

render the whole treaty of commerce a nullity.

Speech of Thomas Dawes, Jr., in Massachusetts

Ratifying Convention, Jan. 21 1788, reprinted in 2

id. at 58-59. Dawes concluded, “If we wish to

encourage our own manufactures, to preserve our own

commerce, to raise the value of our own lands, we

must give Congress the powers in question.” Id. at

59.

Justice Jackson aptly summarized the original

understanding of the federal interest in regulating

foreign commerce.

The desire of the Forefathers to federalize

regulation of foreign and interstate commerce

stands in sharp contrast to their jealous

preservation of power over their internal affairs.

16

No other federal power was so universally

assumed to be necessary, no other state power

was so readily relinquished.

H. P. Hood & Sons v. Du Mond , 336 U.S. 525, 533-34

(1949). With the peace, prosperity, and international

reputation of America at stake, those who wrote and

ratified the Constitution formed a government with

the power to bind the Nation in matters regarding

foreign affairs and foreign commerce.

B. The Constitution Invests the Federal

Government with Power to Bind the Nation

in Matters of Foreign Affairs and Foreign

Commerce

The words of the Constitution plainly confer on

the federal government the power to implement

foreign policy and regulate foreign commerce.

Article I gives Congress power over a breathtaking

array of matters regarding foreign affairs. Section

8 contains the largest grant of powers. They include

the power to “lay and collect Taxes, Duties, Imposts

and Excises,” U.S. CoNsT. art. I, § 8, cl. 1; to “provide

for the common Defence,” Id.; to “regulate Commerce

with foreign Nations,” Id. at art. I, § 8, cl. 3; to

“establish an uniform Rule of Naturalization,” Id. at

art. I, § 8, cl. 4; to “regulate the Value... of foreign

Coin,” Id. at art. I, § 8, cl. 5; to “define and punish

Piracies and Felonies committed on the high Seas,

and Offences against the Law of Nations,” Id. at art.

I, § 8, cl. 10; to “declare War, grant letters of Marque

and Reprisal, and make Rules concerning Captures

on Land and Water,” Id. at art. I, § 8, cl. 11; to “raise

and support Armies,” Id. at art. I, § 8, cl. 12; to

“provide and maintain a Navy,” Id. at art. I, § 8, cl.

13; to “make Rules for the Government and

Regulation of the land and naval Forces,” Id. at art.

17

I, § 8, el. 14; to “provide for calling forth the Militia

to .. . repel Invasions,” Id. at art. I, § 8, cl. 15; to

“provide for organizing, arming, and disciplining, the

Militia, and for governing such Part of them as may

be employed in the Service of the United States,”

Id. at art. I, § 8, cl. 16; to “exercise [exclusive

legislation] over all Places purchased by the Consent

of the Legislature of the State in which the same

shall be, for the Erection of Forts, Magazines,

Arsenals, dock-Yards,” Id. at art. I, § 8, el. 17.

Article II delegates equally impressive authority

over foreign affairs to the President. “The President

shall be Commander in Chief of the Army and navy

of the United States, and of the Militia of the several

States, when called into the actual Service of the

United States ....” Id. at art. II, § 2. “He shall have

power, by and with the Advice and Consent of the

senate, to make Treaties, provided two thirds of the

Senators present concur; and he shall nominate, and

by and with the Advice and Consent of the Senate,

shall appoint Ambassadors, other public Ministers

and Consuls.” Id. The President “shall receive

Ambassadors and other public Ministers... and shall

Commission all the Officers of the United States.”

Id. at art. II, § 3.

In addition to the delegations of power contained

in Articles I and II, Article I, section 10 is instructive

since it expressly prohibits states from sharing in

certain powers granted to the federal government.

“No State shall ... grant Letters of Marque and

Reprisal ... .” Id. at art. I, § 10, cl. 1. “No State

shall, without the Consent of the Congress, lay any

Imposts or Duties on Imports or Exports, except what

may be absolutely necessary for executing its

inspection Laws... .” Id. at art. I, § 10, cl. 2. “No

State shall, without the Consent of Congress, lay any

Duty of Tonnage, keep Troops, or Ships of War in

18

time of Peace, enter into any Agreement or Cor.pact

.. with a foreign Power, or engage in War, unless

actually invaded, or in such imminent Danger as will

not admit of delay.” Id. at art. I, § 10, el. 3.

This mass of powers delegated by Articles I and

II, and further defined by the exclusions of Article

I, § 10, supplies the Constitution’s definition of

“foreign affairs.” Whether the powers to regulate

foreign commerce and conduct foreign affairs were

delegated exclusively to the federal government, or

left to the concurrent jurisdiction of federal and state

governments, is a question not immediately answered

by the Constitution’s express terms. For guidance

we first turn to The Federalist, “usually regarded as

indicative of the original understanding of the

Constitution.” Printz v. United States, 117 S. Ct. 2365,

2372 (1997).

Beginning in Federalist No. 41, James Madison

explained “the sum or quantity of power which [the

Constitution] vests in the Government, including the

restraints imposed on the States.” THE FEDERALIST

No. 41, at 268 (Jacob E. Cooke ed., 1961). He

classified delegations of federal power into six

categories, only two of which need concern us here.

Madison then discussed the second category of

federal powers, “which regulate the intercourse with

foreign nations.” THE FEDERALIST No. 42, at 279.

Under this heading, Madison included the power “to

make treaties; to send and receive Ambassadors, other

public Ministers and Consuls; to define and punish

piracies and felonies committed on the high seas,

and offences against the law of nations; to regulate

foreign commerce... .” Id. Once again, Madison

considered these powers to lie within the exclusive

province of the federal government. “This class of

. Subsequent citations to the Federalist are to the Jacob

Cooke edition.

19

powers forms an obvious and essential branch of the

foederal administration. If we are to be one nation

in any respect, it clearly ought to be in respect to

other nations.” Id. (emphasis added). Granting the

federal government sole authority to define “offences

against the law of nations,” id., plainly improved on

the Articles of Confederation, which, as Madison

pointed out, “leave it in the power of any indiscreet

member to embroil the confederacy with foreign

nations.” Id. at 280-81. As for the power to regulate

foreign commerce, Madison deferred to Alexander

Hamilton’s discussion in Federalist 22. See id. at 281

& n.*.

There Hamilton explained why the power to

regulate foreign commerce “strongly demands a

Foederal superintendence.” THE FEDERALIST No. 22,

at 136. In justifying Congress’ power to regulate

foreign commerce, Hamilton naturally cited the risks

to which the weakness of the Articles of Confederation

had exposed America.

No nation acquainted with the nature of our

political association would be unwise enough

to enter into stipulations with the United

States, by which they conceded privileges of

any importance to them, while they were

apprised that the engagements on the part of

the Union, might at any moment be violated

by its members; and while they found from

experience that they might enjoy every

advantage they desired in our markets, without

granting us any return, but such as their

momentary convenience might suggest.

Id. Referring to efforts by several states to regulate

commerce with Great Britain, Hamilton noted that

“the want of concert, arising from the want of a

general authority, and from clashing, and dissimilar

views in the States has hitherto frustrated every

20

experiment of the kind; and will continue to do so

as long as the same obstacles to an uniformity of

measures continue to exist.” Id. at 137.

Returning to Madison’s analysis of federal power,

he fixed the line running between state and federal

power at the following point:

The powers delegated by the proposed

Constitution to the Federal Government, are

few and defined. Those which are to remain

in the State Governments are numerous and

indefinite. The former will be exercised

principally on external objects, as war, peace,

negociation, and foreign commerce... .”

THE FEDERALIST No. 45, at 313. Madison evidently

classified “war, peace, negociation, and foreign

commerce” as “external objects,” id., which the

Constitution delegated to the federal government.

Alongside the Federalist, perhaps “the most widely

held ‘original understanding’ of the nature of the

Constitution” was expressed by Justice Joseph Story

in his Commentaries. See Ronald D. Rotunda & John

E. Nowak, Introduction, Story at xxi. Echoing

Madison’s concerns that a single state might imperil

the entire union if left free to dabble in foreign

affairs, Story found, too, that the Constitution left

no such authority for the states.

The security (as has been justly observed) of

the whole Union ought not to be suffered to

depend upon the petulance or precipitation of

a single state. The constitution has wisely both

in peace and war, confided the whole subject

to the general government. Uniformity is thus

secured in all operations, which relate to

foreign powers; and an immediate responsibility

to the nation on the part of those, for whose

conduct the nation is itself responsible.

Id. at 490.

21

With the harsh experience of foreign policy crises

under the Articles of Confederation a comparatively

recent memory, it is perhaps not surprising to find

that Madison, Hamilton, and Story, and other

Framers, whatever their other differences, agreed that

the Constitution gave the federal government

preeminent constitutional authority to conduct foreign

affairs and regulate foreign commerce. Nor should

it come as a surprise to learn that this Court has

repeatedly affirmed the same _ constitutional

interpretation in a line of decisions stretching back

to the first half of the nineteenth century.

C. This Court’s Decisions Repeatedly Emphasize

that the Federal Government Has Paramount

Authority to Conduct Foreign Affairs and

Regulate Foreign Commerce

“That the supremacy of the national power in the

general field of foreign affairs . . . is made clear by

the Constitution, was pointed out by authors of The

Federalist in 1787, and has since been given

continuous recognition by this Court.” Hines v.

Davidowitz, 312 U.S. 52, 62 (1941). In Holmes v.

Jennison, 39 U.S. (14 Pet.) 540 (1840), the Court

addressed whether a state may constitutionally

extradite a fugitive from a foreign country. The Court

could not reach the merits of that question, because

the absence of Justice McKinley left it evenly divided.

See id. at vii. Nonetheless, Justice Taney, in an

opinion joined by Justice Story among others,

declared his belief that the foreign affairs power

resides exclusively in the federal government: “It was

one of the main objects of the Constitution to make

us, so far as regarded our foreign relations, one

people, and one nation... .” Id. at 575.

22

In this century the Court has reaffirmed this

understanding. Justice Sutherland, in an opinion

for the Court in United States v. Belmont, 301 U.S.

324 (1937), stated it in unmistakable terms. “Govern-

mental power over internal affairs is distributed

between the national government and the several

states. Governmental power over external affairs is

not distributed, but is vested exclusively in the

national government.” Id. at 330.

In Hines v. Davidowitz, 312 U.S. 52 (1941), the

Court struck down a Pennsylvania statute governing

alien registration. The Court explained:

The Federal Government, representing as it

does the collective interests of the... states,

is entrusted with full and exclusive respon-

sibility for the conduct of affairs with foreign

sovereignties. “For local interests the several

states of the Union exist, but for national

purposes, embracing our relations with foreign

nations, we are but one people, one nation, one

power.” Our system of government is such

that the interest of the cities, counties and

states, no less than the interest of the people

of the whole nation, imperatively requires that

federal power in the field affecting foreign

relations be left entirely free from local

interference.

Id. at 63 (quoting The Chinese Exclusion Case, 130

U.S. 581, 606 (1889)).

In United States v. Pink, 315 U.S. 203 (1942), the

Court held that state and local policies which

conflicted with the United States’ recognition of

Soviet Russia must yield to the federal government’s

supreme power in the conduct of foreign affairs.

Again, the Court explained:

If state laws and policies did not yield before

the exercise of the external powers of the

23

United States, then our foreign policy might

be thwarted. These are delicate matters. If

state action could defeat or alter our foreign

policy, serious consequences might ensue. The

nation as a whole would be held to answer if

a State created difficulties with a foreign

power.

Id. at 232.

And in 1968, the Court struck down an Oregon

statute that purported to establish conditions under

which non-resident aliens could take property through

probate, holding that the statute unconstitutionally

intruded on the federal power over foreign affairs.

Zschernig v. Miller, 389 U.S. 429 (1968). There the

Court plainly stated that “state involvement in foreign

affairs and international relations,” id. at 436, was

impermissible because they are “matters which the

Constitution entrusts solely to the Federal

Government.” Id. The Court perceived, as the

Framers did, “the dangers which are involved if each

State ... is permitted to establish its own foreign

policy.” Id. at 441.

During the Bicentennial, when so much attention

was focused on the Nation’s birth, this Court had

occasion to recall the enduring reasons for granting

the federal government authority to set uniform

nationwide standards for foreign trade. In Michelin

Tire Corp. v. Wages, 423 U.S. 276 (1976), the Court

noted that the Import-Export Clause, U.S. CONST. art.

1, § 10, cl. 2, answered the Framers’ concern that “the

Federal Government must speak with one voice when

regulating commercial relations with foreign

governments.” 423 U.S. at 285. To describe Congress's

power to regulate foreign commerce the Court has

used such all-encompassing adjectives as “exclusive,”

“absolute,” and “complete.” Buttfield v. Stranahan,

192 U.S. 470, 493 (1904).

24

Thus constitutional history and text, as well as

this Court’s decisions, establish that the areas of

foreign affairs and foreign commerce have been long

reserved to the federal government. The same

considerations also yield several reasons not to

indulge the usual presumption against preemption

in this case.

D. The Presumption Against Preemption Should

Not Be Indulged In this Case, Because

Washington’s BAP Regulations Occupy Areas

Traditionally Reserved to the Federal

Government

At least as applied to state regulations governing

flag vessels from foreign countries and to vessels

engaged in international shipping, the presumption

against preemption stands on an extraordinarily

rickety foundation. To begin with, this Court has

never applied that presumption when a preemption

claim pits a state law against federal law and

international agreements. See Craig H. Allen,

Federalism in the Era of International Standards:

Federal and State Government Regulation of Merchant

Vessels in the United States (Part I), 29 J. MAR. L.

& CoM. 335, 387 (1998). The reasons not to indulge

that preemption for the first time in this case are

clear.

First, consider how the presumption is usually

expressed. The Court presumes that “historic police

powers of the States were not to be superseded by

. Federal Act unless that was the clear and

manifest purpose of Congress.” Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947). Regulations

governing work hours, training, language, and drug

testing for the crew and operations of oil tankers do

not fall within the “historic police powers of the

eVGQuQVQQQYY eG

25

States.” Id. (emphasis added). States are relative

newcomers to the field of maritime vessel safety

regulation, having entered it to fill real or perceived

lacunae in federal law. See Kelly v. Washington, 302

U.S. 1, 13 (1937) (“state law touches that which the

federal laws and regulations have left untouched”).

In contrast, the federal government has regulated

foreign commerce and navigation from the beginning.

“[A]s the very first order of business after organizing

the House [of Representives], STANLEY ELKINS & ERIC

MCKITRICK, THE AGE OF FEDERALISM 65 (1993), James

Madison proposed the adoption of an impost on

imported goods. See id. And navigation laws figured

among the business of Congress during its first

session. See, e.g., Act of Sept. 1, 1789, ch. 11, 1 Stat.

55, amended by Act of Dec. 31, 1792, ch. 1, 1 Stat.

287 (codified as amended at 46 U.S.C. § 11).

Second, a presumption against preemption is

especially inappropriate here, because the BAP

regulations at issue cover matters of national and

international significance. “{T)he Court will generally

uphold state legislation if the state was exercising

its inherent police power over a subject matter that

is ‘maritime but local;’ that is, over a matter that does

not require a uniform national rule, but rather is

better suited to multiple rules adapted to local

necessities.” Craig H. Allen, Federalism in the Era

of International Standards: Federal and State

Government Regulation of Merchant Vessels in the

United States (Part I), 29 J. MAR. L. & Com. 335,

379-80 (1998). On the other hand, a law “must of

necessity be national in its character” when it affects

“a subject which concerns our international relations,

in regard to which foreign nations ought to be

considered and their rights respected.” Henderson

v. Mayor of New York, 92 U.S. 259, 273 (1876). The

BAP regulations fall into the latter category.

26

This Court has made it clear that when a state

law “affects international relations . . . [aJny con-

current state power that may exist is restricted to

its narrowest limits.” Hines v. Davidowitz, 312 U.S.

52, 68 (1941). Perhaps this is because the federal

government possesses greater authority to regulate

foreign commerce than commerce among the states.

Although the Constitution, Art I, § 8, cl. 3,

grants Congress power to regulate commerce

‘with foreign Nations’ and ‘among the several

States’ in parallel phrases, there is evidence

that the Founders intended the scope of the

foreign commerce power to be the greater.

Cases of this Court, stressing the need for

uniformity in treating with other nations, echo

this distinction.

Japan Line, Ltd. v. County of Los Angeles, 441 U.S.

434, 448 (1979) (footnotes omitted).

In general terms, maritime vessel regulations stand

on a foundation of international agreements.

The modern legal regime governing

merchant vessel safety and pollution prevention

is now dominated by international agreements.

Exercising its foreign affairs powers, the United

States has entered into a multitude of inter-

national conventions, treaties, and agreements

which together establish the terms of foreign

merchant vessel access to United States ports

and waters and the construction, design,

equipment, manning, and operational rules and

standards with which those vessels must

comply as a condition of entry. In most cases

the international conventions also establish the

safety and pollution prevention standards with

which United States flag vessels must comply

under domestic law and as a condition of entry

into the ports or waters of other nations.

27

Craig H. Allen, Federalism in the Era of International

Standards: Federal and State Government Regulation

of Merchant Vessels in the United States (Part II),

29 J. MAR. L. & Com. 565, 565 (1998); see also Story

at 617 (suggesting that the law governing civil liability

for maritime shipping “has, or may have, an intimate

relation to the rights and duties of foreigners in

navigation and maritime commerce. It may materially

affect our intercourse with foreign states; and raise

many questions of international law, not merely

touching private claims, but national sovereignty and

national reciprocity.”); S. Rep. No. 92-248 (1971),

reprinted in 1971 U.S.C.A.A.N. at 1341 (citing this

Nation’s “long history of preemption on maritime

safety matters .. . founded on the need for uniformity

applicable to vessels moving in interstate commerce.”).

Washington’s BAP regulations are not relegated

to matters of local concern. They apply in all state

waters. See WASH. ADMIN. CODE § 317-21-020,

reprinted in Pet. App. 308a; 1991 Wash. Laws ch. 200

§ 101(3\(c). For that reason alone Washington must

admit that the regulations “are not based on the

‘peculiarities of local waters,’ but rather on the state’s

judgment regarding acceptable risk levels for all state

waters.” Craig H. Allen, Federalism in the Era of

International Standards: Federal and _ State

Government Regulation of Merchant Vessels in the

United States (Part III), 30 J. MAR. L. & Com. 85, 127

(1999) (footnote omitted).

Third, to indulge the presumption against

preemption in this case would ignore the substantial

risks to the Nation if individual states are allowed

to disrupt the uniform regulatory scheme governing

oil tankers. When it comes to foreign commerce, the

Court has acknowledged “the special need for federal

uniformity.” Wardair Canada, Inc. v. Florida Dep't

of Revenue, 447 U.S. 1, 8 (1986). That uniformity,

28

along with its handmaiden, international reciprocity,

has been established by congressional statute. See,

e.g., the Tank Vessel Act, ch. 729, 49 Stat. 1889; Ports

and Waterways Safety Act of 1972, Pub. L. No. 92-340,

86 Stat. 424; Act to Prevent Pollution from Ships,

Pub. L. No. 96-478, 94 Stat. 2297; Port and Tanker

Safety Act of 1978, Pub. L. No. 95-474, 92 Stat. 1471;

Oil Pollution Act of 1990, Pub. L. No. 101-380, 104

Stat. 484; 46 U.S.C. § 3303(a) (“A foreign country is

considered to have inspection laws and standards

similar to those of the United States when it is a

party to an International Convention for Safety of

Life at Sea to which the United States is currently

a party”); 46 U.S. § 3711 (“The Secretary may accept

any part of a certificate, endorsement, or document

issued by the government of a foreign country under

a treaty, convention, or other international agreement

to which the United States is a party, as a basis for

issuing a [U.S.] certificate of compliance.”).

Allowing individual states to disrupt this uniform

regulatory scheme carries the risk that “a conflicting

patchwork of national standards . . . would impede

the free-flow of commerce.” Letter from Douglas J.

Bennett, Jr. (Asst. Sec’y for Cong. Affairs) to Cong.

John Murphy (Chair, House Merchant Marine &

Fisheries Comm.) (Sept. 13, 1977), reprinted in 1978

U.S.C.A.A.N. 3270, 3315.

Even more ominously, allowing Washington to

enforce the BAP regulations challenged here carries

“the threat . . . of offending our foreign trading

partners and leading them to retaliate against the

Nation as a whole.” Container Corp. v. Franchise

Tax Board, 463 U.S. 159, 194 (1983); see also Hines

v. Davidowitz, 312 U.S. 52, 64 (1941) (“Experience

has shown that international controversies of the

gravest moment, sometimes even leading to war, may

arise from real or imagined wrong to another's

subjects, inflicted, or permitted, by a government.”).

Unfortunately, the first half of that threat has

materialized: Washington’s regulations have sparked

two diplomatic protests. The first, signed by 13

European countries and the Commission of the

European Community, complained that “[d]iffering

regimes in differert parts of the US would create

uncertainty and confusion.” Note Verbale from the

Royal Danish Embassy to the U.S. Department of

State 1 (June 14, 1996) (File No. 60 USA.1/4). They

called on the United States “to pursue a regulatory

regime, on a national basis, which is consistent with

agreed international standards.” Id. Canada has filed

a similar protest. Letter from the Embassy of Canada

to the U.S. Department of State 1 (May 7, 1997) (Note

No. 0389). Yet despite the dangers posed by

provoking an open rupture with the country’s major

trading partners, “nothing in the legislative record

of the 1991 Washington tanker laws at issue...

indicates that the state considered the possible foreign

relations implications of its statutes.” Craig H. Allen,

Federalism in the Era of International Standards:

Federal and State Government Regulation of Merchant

Vessels in the United States (Part III), 30 J. MAR. kL.

& Com. 85, 89 n. 737 (1999).

30

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

Daniel J. Popeo

R. Shawn Gunnarson

Counsel of Record

Washington Legal Foundation

2009 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 588-0302

Counsel for Amicus Curiae

October 22, 1999