John C. Yoo,
Foreign Affairs Federalism and the Separation of Powers, 46
Vill. L. Rev.
Available at: http://scholarship.law.berkeley.edu/facpubs/1053
The author argues that if presented with a true dormant foreign affairs case, the deeper theory in Crosby v. National Foreign Trade Council might have culminated in a different decision. Zschernig v. Miller had thus far required federal courts to strike down state laws, in the absence of federal preempting statutes or actions, that interfered with the central government's role in international relations. Reasoning in Crosby concerned separation of powers more than federalism, & although the decision seemed to sidestep the issues in Zschernig, closer study suggests that it actually reinforced the same ideas. Reasons for favoring the President in controlling foreign affairs, as emphasized in Crosby, are explored, & an argument that the judicial system is the least suitable arena for making decisions concerning foreign affairs is given. L. A. Hoffman