Article by Kevin P. Lewis
In the last several years, the struggle to end apartheid in South Africa has grown as widespread as it has violent. In the United States, one of South Africa's largest trading partners and foreign investors, the struggle has evoked responses from student groups, universities, churches, unions, stockholders, and corporations. Since 1979, states, counties, and cities have joined the ranks of those reacting to the crisis. Most of the state and local responses have been in the form of divestment legislation mandating the withdrawal of public funds under governmental control from corporations and financial institutions that do business in South Africa.
Various commentators have concluded that these statutes are unconstitutional. Because the state and local actions were taken in direct response to the actions of a foreign government and, perhaps, to affect the future actions of that government, it is argued that the divestment statutes constitute an impermissible and unconstitutional intrusion into the field of foreign relations. In addition, some have concluded that the statutes violate the commerce clause as impermissible regulations of foreign commerce.
This Article analyzes the constitutional ramifications of state and local divestment statutes and ordinances. Part I describes and analyzes the state and local actions. Part II examines commerce clause challenges to the statutes, First, the Article argues that the market participant doctrine should not exempt divestment statutes from a commerce clause balancing test because the doctrine should not be applied to foreign commerce. Second, the Article concludes that the statutes are nonetheless valid because their impact on the market is evenhanded, they satisfy a legitimate local purpose without intolerably interfering with federal commercial interests, and they do so in the least restrictive manner possible.
Part III examines preemption challenges to the statutes based on the ‘dormant’ federal foreign affairs power. This section concludes that the statutes do not interfere with the federal foreign affairs power because they do not involve a continuing evaluation of the conduct of the affairs of a foreign government. Rather, the statutes constitute a proper response to the risks, financial and otherwise, distinctly affecting the locality.
The Article concludes that the statutes embody important state interests and are constitutional exercises of the states' police power. The courts should refrain from invalidating them by using either of the ‘dormant’ powers at their disposal: the ‘dormant’ commerce clause and the ‘dormant’ foreign affairs power.
About the Author
Kevin P. Lewis. Clerk to the Honorable Jerre Williams, United States Court of Appeals for the Fifth Circuit, 1986-1987; J.D., Harvard University, 1986; B.A., Yale University, 1983.
Citation
61 Tul. L. Rev. 469 (1987)