Dr. Malawer Dr. Stuart S. Malawer

Dr. Malawer

3 State Law. –Restricted all companies (U.S. & foreign) from bidding on state contracts. –Intended to influence the domestic policy of a foreign country. New Federal Law. –Bans U.S. aid. –Vote against international aid. –No visas for foreign officials. –Upon Presidential certification new sanctions may be imposed (prohibit U.S. firms from new investments). –Formulate a multilateral strategy. State Law & Subsequent Federal Law.

Dr. Malawer

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8 Foreign Affairs & Treaties. Foreign Affairs: Article II (Executive Power). – Section I. “The executive power shall be vested in a President ….” –Section II. Commander-in-Chief. Make Treaties. Appoint Ambassadors. –Section III. Receive Ambassadors. Treaties: Article VI (Supremacy Clause). –“This Constitution and the laws of the United States … and all Treaties … shall be the supreme Law of the Land.”

Dr. Malawer District Court & Circuit Court. District Court (Nov. 1998) –Violates Foreign Affairs Power. –Did not reach Foreign Commerce Power. –Did not find Preemption. Circuit Court (June 1999) –Violates Foreign Affairs Power. –Violates Foreign Commerce Power. –Had Federal Preemption. Note: The D.Ct. held for the first ground alleged by the Plaintiffs, the Cir. Ct. held for all three, and the Supreme Court held on the last – the narrowest.

Dr. Malawer WP

Dr. Malawer Supreme Court Decision State law was “implicitly preempted” by subsequent congressional legislation which delegated authority to the President to impose trade sanctions. The federal legislation didn’t provide for explicit preemption nor did it occupy the field. But the state law was a sufficient obstacle to implementing the purposes and objectives of the legislation. Thus, it was unconstitutional under the “Supremacy Clause.”

Dr. Malawer State law was an obstacle for three reasons: President needs flexibility – Needs bargaining chips.. (Federal law didn’t ban investments, upon certification only new investments.) Congress wanted only limited economic pressure. (Primarily on foreign country, not through private third parties.) Presidents needs authority to develop a multilateral strategy. (Already had diplomatic protests by EU in the WTO.)