“Missouri Attorney General Eric Schmitt, a Republican, blames China for letting the coronavirus spread. So he’s suing China, three government ministries, two local governments, two laboratories and the Chinese Communist Party in U.S. District Court.” A suit of this sort by a state against a foreign sovereign would ordinarily be stopped in its tracks by the Foreign Sovereign Immunities Act of 1976, but never fear: “Last week, Missouri Sen. Josh Hawley introduced legislation to strip China of its sovereign immunity.” [Frank Morris, NPR]
As my colleague Ted Galen Carpenter observed on Monday, there are many and substantial reasons to blame Beijing for bad conduct during the pandemic, and American public opinion has taken note of that. Still, sovereign immunity aside, under the constitutional design laid down by the Framers states aren’t supposed to pursue their own foreign policies. As the Supreme Court put it in Hines v. Davidowitz (1941), “Our system of government … requires that federal power in the field affecting foreign relations be left entirely free from local interference.” In Crosby v. National Foreign Trade Council (2000) the Court unanimously struck down a Massachusetts law barring state entities from buying goods or services from companies doing business with Burma (Myanmar) on the grounds that it interfered with the power of Congress and the Executive Branch to make the most of the sanctions power by exerting unified control over it.
It’s not clear that the different circumstances here would trip the Crosby wire, but Missouri is treading a path here not unlike that of the San Francisco Board of Supervisors, long deservedly criticized for sticking its nose into foreign policy causes whether good or bad. It is noteworthy that Justice Ruth Bader Ginsburg, who takes a somewhat broader view of states’ permissible involvement in this field than do her majority colleagues, has written nonetheless that the case for pre-emption is strongest “when a state action ‘reflects a state policy critical of foreign governments and involve[s] sitting in judgment on them.'” Explicitly hostile measures toward a foreign power are especially likely to undermine U.S. foreign policy by raising the chance of a breach in relations or retaliation. David R. Schmahmann and James S. Finch have more in this 1998 Cato briefing paper.
4 Comments
As an attorney and a Missouri resident, I have not seen any comments from other attorneys or Missouri residents that depart from “the suit is kind of embarrassing, a waste of money, and I don’t think they can do that.”
Putting aside the merits, I think people are underestimating the fury that is going to take hold of this country with respect to the actions of the Chinese government. I know that the vast majority of Americans can separate the Chinese government from people of Chinese descent. Let’s hope that ALL Americans can do so.
This has got to be the stupidest money grab by lawyers I have ever seen.
These lawyers are not acting in private practice. They are not representing even nominally actual clients.
All these lawyers hold public office, either appointed or elected.
They are representing “the people”, or “the voters”.
Their asinine filings of lawsuits and legislative bills are attempts to score political points, not attorney fees for themselves.