The Zscherniger court did not determine which language the Constitution imposes a right of pre-emption, and commentators found that a respectable argument can be made that the Constitution does not require a general title of pre-emption for foreign affairs that is not bound by the supremacy clause and that is always and independently of the specific prohibitions of the Constitution23T it is argued, for example, Article I, Specific prohibitions on States obtaining, entering into contracts, maintaining troops in peacetime and issuing letters of marque and retaliation, would not have been necessary if a more general and dormant foreign relations force had been desired. Similarly, it would not have been necessary to make treaties the supreme law of the land if there had been a more general preventive power for foreign affairs outside the supremacy clause. See Ramsey, above. And the attributions of power.24Notations of footSigning that a part of the executive power that confers on the president by art. II, § 1 is a power to manage external relations. The Garamendi tribunal raised a legitimate question about whether respect for the executive power of foreign relations requires a categorical choice between the opposing theories of reception on the ground and conflicts, which are evident in Zschernig`s positions. Instead, Judge Souter proposed to the Court of Justice that a pre-emption procedure on the ground might be appropriate if a State legislates for the sole purpose of adopting a position on a foreign policy issue, without seriously claiming to deal with traditional State responsibility, and conflict prevention may be appropriate where a State legislates in an area of traditional responsibility, 25Footnote539 U.S. at 419 n.11. We have to wait for further litigation to see if the court applies this distinction.26Notation of Justice Ginsburg`s dissent in Garamendi, joined by the other three judges, proposed to limit Zschernig in a manner generally consistent with Justice Souter`s distinction. According to Justice Ginsburg, Zschernig`s pre-emption measure is most audible when a state act “reflects a critical state policy toward foreign governments and pronounces them in a judgment against them.” 539 U.S.
to 439 (Henkin city, above, 164). But Justice Ginsburg also expressed broader concerns about judges becoming discoverers of the nation`s foreign policy. See in this context Goldsmith, above, in 1631, who describes Zschernig`s right of pre-emption as a form of federal customary law of foreign relations. It is, of course, true that treaties with foreign nations are also carefully interpreted so as not to derogate from the authority and jurisdiction of the States of that nation, unless this is clearly necessary for the conduct of national policy. But the law of the State must yield when it is incompatible or affects the policy or provisions of a treaty or an international covenant or agreement. Secondly, the power of a State to refuse the application of rights on the basis of foreign law, which runs counter to the public policy of the forum. must yield to higher federal policy, which is sanctioned by a treaty, an international pact or an agreement. . . .