Recently certain Korean American groups have begun lobbying for state legislation requiring public school textbooks to explain that the “Sea of Japan” is also called the “East Sea.” Japan prefers and uses the former, while South Korea the latter. Bills on this issue are currently at varying stages of adoption in Virginia, New Jersey, and New York, and are part of a broader campaign to raise public awareness about Japan’s colonial and wartime behavior. In this post, I want to address briefly the constitutionality of this legislation under the doctrine of foreign affairs preemption. My view is that the legislation is likely permissible and not preempted.
I’ll begin with the key features of foreign affairs preemption. In American Insurance Association v. Garamendi, the Supreme Court explained that the constitutionality of a state action carrying more than “incidental” foreign policy consequences hinges on whether the action conflicts with federal foreign policy. In the presence of a clear conflict, the state law is invalid. Absent such a conflict, constitutionality depends primarily on the strength of the state interest at stake, as judged “by standards of traditional practice.” This means that non-conflicting state action is likely to be permissible if it falls within a traditional competence of state governments.
Addressing the doctrine’s requirements in order, there’s reason to believe that the foreign policy consequences of the textbooks legislation are more than incidental. Japan has already raised diplomatic protests and, according to some reports, threatened to withdraw business from the states involved. It’s hard to specify the precise point at which these kinds of repercussions become more than incidental, and it’s doubtful that Japan would damage its own business interests over a controversy of this nature, but the Supreme Court’s most famous case on foreign affairs preemption—Zschernig v. Miller—found that an Oregon inheritance statute had more than incidental consequences because it raised diplomatic complications with communist states. Those consequences are loosely similar to what’s happening here.
The next question, then, is whether there’s a clear conflict between the recent legislation and federal policy. Arriving at an answer is difficult because, somewhat bizarrely, there are conflicting accounts of the Obama Administration’s policy. According to Reid Wilson of the Washington Post, spokeswoman Jen Psaki explained that policy as follows on February 4th at the State Department’s daily press briefing:
“The State Department does not get involved in state and local government discussions on text books. The U.S. Government uses names decided by the U.S. Board on Geographic Names. The U.S. Board on Geographic Names’ standard name for that body of water is the Sea of Japan. We understand that the Republic of Korea uses a different term. Per U.S. policy, we use only one name to refer to all high seas features. This is a long-standing U.S. policy that we apply all around the globe.”
If this quote is accurate, it seems fairly obvious that there is no conflict preemption. While the U.S. Government has a policy of using only the name “Sea of Japan,” the Administration has no policy on whether the fifty states must themselves use that name, at least in textbooks. As Ms. Psaki reportedly explained, the State Department “does not get involved” in that issue. If there were a conflict, we would see the State Department oppose state usage of the name “East Sea.”
But there is serious reason to question the accuracy of Wilson’s account. Not a single source on the Internet corroborates it. According to a transcript on the State Department’s own website, what Ms. Psaki actually said was simply that “the U.S. Government uses names decided by the U.S. Board on Geographic Names. The U.S. Board on Geographic Names’ standard name for that body of water is the Sea of Japan. We understand that the Republic of Korea and others use a different term, but that is the term we use.” This is quite different; notably absent is the earlier quote’s language on how the State Department doesn’t get involved in disputes about the content of public school textbooks. And the difference seems material: The quote on the Department’s website is a somewhat stronger basis for conflict preemption because it confirms that the federal government has a policy of using only the name “Sea of Japan,” and it doesn’t show the State Department expressly disavowing a position on the content of the textbooks. Is Ms. Psaki implicitly conveying that the states should follow the federal lead? Not certain, but also not absurd to think yes. More clarification would be helpful.
In any event, let’s assume there’s no clear conflict between the state legislation and federal policy. This would mean that Virginia, New Jersey, and New York could require the use of the name “East Sea” in their public school textbooks if doing so falls within the “traditional competence” of state governments. Framing becomes really important at this point. If one characterizes the legislation as a matter of public education, it plainly falls within traditional state competence and implicates important state interests in setting course curricula. If one thinks of the legislation as an effort to take a position on a delicate matter of international geopolitics, state competence disappears entirely.
It’s a little hard to predict what a court would do here, but I think the better argument is that the legislation is permissible (again, assuming no conflict). Two reasons: First, there’s no way for states to avoid angering either Japan or Korea, given the zero-sum nature of the dispute. Korea would probably be upset if New York, for example, abandoned its bill, while Japan would be upset if the bill passed. Neither result is a good one, but they’re roughly equivalent insofar as the United States is allies with both countries. Textbooks could drop any reference to the disputed body of water, but it’s not clear that doing so would appease either side, and that solution would suggest that public education must skip over sensitive topics in world politics and history due to potentially adverse diplomatic complications. That can’t be right.
Second, there’s a sense in which the simple existence of foreign affairs preemption as a doctrine makes the exercise of foreign affairs preemption unnecessary. This is so because the doctrine’s limitations signal to other countries that the federal government lacks power to block certain forms of state action even when there are extraterritorial consequences. By sending this signal, the doctrine confines political responsibility to the acting state and discourages foreign governments from retaliating against the nation as a whole. Any well-informed foreign government like Japan’s will understand as much and likely retaliate–if at all–only against the acting state, which will diminish any resulting harm to national interests and in turn significantly reduce, if not eliminate, the need for federal preemption.
Cross-posted on Ryan Scoville’s blog.