Federal Courts, Foreign Affairs, and Federalism

In analyzing the orthodox view, it is important to distinguish between plenary federal power and exclusive federal power.The Constitution establishes plenary federal power by four means.Article I, Section 10 bars states from performing certain foreign affairs functions, such as treaty-making. 2 Article I, Section 8 and Article II broadly authorize the federal political branches to conduct foreign relations through the enactment of federal statutes, treaties, and executive agreements.'Article VI establishes that these federal enactments are supreme over state law.And Article III extends the federal judicial power to cases involving these federal enactments and to other transnational controversies.' Taken together, these provisions give the federal political 2 Article I, Section 10 states: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal ....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 it's [sic] inspection Laws ....No State shall lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact... with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.U.S. Const.art.I, § 10.3E.g., U.S. Const.art.I, § 8, cl. 3 (Congress authorized to "regulate Commerce with foreign Nations"); id.art.I, § 8, cl. 4 (Congress authorized to "establish an uniform Rule of Naturalization"); id.art.I, § 8, cl. 10 (Congress authorized to "define and punish ... Offences against the Law of Nations"); id.art.I, § 8, cl.11 (Congress authorized to "declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water"); id.art.I, § 8, cl.14 (Congress authorized to "make Rules for the Government and Regulation of the land and naval Forces"); id.art.I, § 8, cl.18 (Necessary and Proper Clause); id.art.II, § 2, cl. 2 (President authorized to make treaties with advice and consent of two-thirds of senators present).The President's authority to make executive agreements derives sometimes from congressional delegation and sometimes from his own foreign relations powers, including his power as commander-in-chief and his power to receive ambassadors.Id. art.II, § § 2, 3; see also Henkin, supra note 1, at 54-56 (discussing presidential lawmaking).4 U.S. Const.art.VI, cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made,