# Amicus Curiae Brief — United States v. Locke

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0275%3A28

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 1063

## Text

4.2

¥

No. 98-1706
ad

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
Ge et

»

A 3%

Dee a Sa ce ae
et. See TL, Cla ee ee

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 — 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0275%3A28. Public record. Not legal advice.