IS IT CONSTITUTIONAL FOR AN AMERICAN MUNICIPALITY TO JOIN ICLEI? By Elwood Earl Sanders, Jr., Esq.

J. D., 1983, University of Alabama. Appellate Procedure Consultant with Lantagne Legal Printing; adjunct instructor at Virginia Commonwealth University; adjunct instructor at Nazarene Bible College; adjunct assistant professor at the School of Continuing Studies at the University of Richmond. None of these titles imply endorsement of Sanders' views!

Tea Party activists have protested throughout the nation about what seems to be a strange cause to espouse: An obscure United Nations document called Agenda 21.2 To that end, many have called for their community to withdraw from an organization better known as ICLEI, formerly the International Council for Local Environmental Initiatives.3 ICLEI is an international organization of cities, towns and counties in over 70 countries, including about 550 members in the United States.4 It is not an United Nations agency but rather an authorized NGO (Non-Governmental Organization) but it has special relations with UN agencies and the United Cities and Local Governments5 ICLEI also represents both its United States members and foreign members at United Nations climate conferences.6 Some argue ICLEI has both foreign and domestic policy goals.7 ICLEI admittedly implements the sustainable development principles of Agenda 21.8 Since its members are not private parties as most NGOs, but rather local governments, the question must be asked: Is it consonant with the Constitution to allow
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Agenda 21 is a plan agreed to at the 1992 Rio Conference of the United Nations Conference on Environment and Development (UNCED) to accomplish the environmental and sustainability goals of the nations of the world. See http://en.wikipedia.org/wiki/Agenda 21. The text of Agenda 21 may be found here: http://www.un.org/esa/dsd/agenda 21/res_agenda21_00.shtml. 3 See the website for ICLEI at http://www.iclei.org/index.php/id=about 4 Id. Also see the ICLEI USA website http://www.icleiusa.org/about-iclei/members 5 ICLEI was founded at the United Nations in New York in 1990 when over 200 local governments from 43 nations met for the World Congress of Local Governments for a Sustainable Future. http://www.iclei.org/index.php/id=about. 6 See ICLEI Charter, Section 1.6: The Association shall serve as an international representative for its members and program participants by providing advocacy before national and international governments, agencies and organizations and multilateral bodies to increase their understanding and support for local sustainable development and environmental protection activities. Through such advocacy, the Association will work to achieve an effective division of responsibilities and resources for sustainable development and environmental protection between the various spheres of government. From the ICLEI website: ICLEI-Local Governments for Sustainability, in its role as the focal point for the Local Authorities and Municipal Authorities (LGMA) constituency, along with United Cities and Local Governments (UCLG) and nrg4sd represented the LGMA constitutency during the UN climate talks on June 6-17, 2011. http://iclei.org/index.php.id=1487&tx_ttnews[pS]=1318430008&tx_ttnews[pointer]=5&tx_ttnews[ttnews]=4649&t x_ttnews[backPid]=1556&cHash=a490e41598 7 See Sanders, www.varight.com/iclei. I clearly have a dog in this hunt but that does not mean I should not search for a scholarly legal analysis on ICLEI's constitutionality. 8 See http://www.iclei.org/index.php?id=1613

US municipalities to join together with foreign counterparts for common goals at international conferences or before UN agencies?9 Alabama recently passed a law that forbids its local governments from enter[ing] into any agreement,...from those...inter-governmental organizations as defined in Agenda 21.10 Other states may follow: Arizona recently considered a bill that among other things, would have barred its cities from joining or remaining members of ICLEI,11 and so did New Hampshire.12 I would think the legality of ICLEI membership would be critical for local and state legal counsel. Hence this article. To begin we must examine the Constitutional provisions involved: No State shall enter into any Treaty, Alliance, or Confederation;...13 No State shall, without the Consent of Congress,...enter into any Agreement or Compact with another State, or with a foreign Power,...14 It is clear of course that local governments are creatures of the states they are in and have only those powers allowed by the state governments,15 and thus the prohibition on states entering into a treaty, alliance or confederation with a foreign power would apply, if it applies at all, to
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Another organization for which a similar constitutional issue could be raised is the C40 group, a group of the forty largest cities in the world banding together to represent its members to fight climate change. See live.c40cities.org. US cities in the C40 are Chicago, Houston, Los Angeles, New York, and Philadelphia and affiliate cities are Austin (TX), New Orleans, Portland, San Francisco and Seattle. SB 477 found at http://www.openbama.org/bills/1059/SB477-int.pdf. It was passed by both houses of the Alabama legislature and signed by Governor Bentley on May 29, 2012. Senate Bill 1507. It passed the Senate but was held in the Arizona House. See www.azleg.gov//FormatDocument.asp?inDoc+/legtext/50leg/2r/bills/sb1507o.asp@Session_ID=107 HB 1634 did not get out of the House Municipal and County Government Committee. See www.gencourt.state.nh.us/bill_status/results.aspx U.S. Const., Article I, Section 10, paragraph 1. U.S. Const., Article I, Section 10, paragraph 3. Most states have the so-called Dillon's Rule, based on the opinion of Judge John F. Dillon of the Iowa Supreme Court in the case of Clinton v. Cedar Rapids and the Missouri River Railroad, 24 Iowa 455 (1868) that local governments have only those powers expressly delegated to the local government by the state government. Some states do allow a degree of home rule, however, that would not authorize any activities barred by these constitutional provisions. Whether membership in ICLEI violates that state's Dillon's Rule is a fascinating question and should be reviewed in light of prior state precedent but beyond the scope of this article.

the locality as well. Did states ever had any power to conduct foreign policy even before the establishment of the Constitution? Regardless of any historical argument posited to the contrary, the legal answer appears to be no. In United States v. Curtiss-Wright Export Corporation,16 sometimes cited for its administrative law aspects, is instructive as to the authority the states might have had in conducting foreign policy under the Constitution. The Court held in Curtiss-Wright that the states never had any foreign policy power as that power went from the British Crown to the United States under the Articles of Confederation and then eventually the Constitution.17 Thus, the states never possessed any positive power to conduct foreign policy and are in fact prohibited from exercising any foreign policy powers by the Constitution.18
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299 U.S. 304 (1936) 299 U.S. at 315-16. (The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field, the primary purpose of the Constitution was to carve from the general mass of legislative powers then possessed by the states such portions as it was thought desirable to vest in the federal government, leaving those not included in the enumeration still in the states. Carter v. Carter Coal Co., 298 U.S. 238, 294, 56S.Ct. 855, 865, 80 L.Ed 1160. That this doctrine applies only to powers which the states had is self-evident. And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source. During the Colonial period, those powers were possessed exclusively by and were entirely under the control of the Crown. By the Declaration of Independence, 'the Representatives of the United States of America' declared the United (not the several) Colonies to be free and independent states, and as such to have 'full Power to levy War, conclude Peace, contract Alliances, establish Commerce and to do all other Acts and Things which Independent States may of right do.' As a result of the separation from Great Britain by the colonies, acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America. Even before the Declaration, the colonies were a unit in foreign affairs, acting through a common agencynamely, the Continental Congress, composed of delegates from the thirteen colonies. That agency exercised the powers of war and peace, raised an army, created a navy, and finally adopted the Declaration of Independence.) The recent case of Arizona v. United States, 567 U.S. ___, ___ (Record 11-182, decided June 25, 2012), cites Curtiss-Wright for its foreign policy holding:

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The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. See Toll v. Moreno, 458 U. S. 1, 10 (1982);see generally S. Legomsky & C. Rodrguez, Immigration and Refugee Law and Policy 115132 (5th ed. 2009). This authority rests, in part, on the National Governments constitutional power to

The Curtiss-Wright Court also held that the President is the sole voice for the nation in foreign policy: It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the Federal government in the field of international relationsa power that does not require as its basis for its exercise an act of Congress but which of course like any other governmental power, must be exercised in subordination to the applicable provisions of the Constitution of the United States.19 The origins of the modern prohibition of the states conducting foreign policy singly or in concert with other entities, foreign and domestic finds its origin in the Cold War struggle against world Communism. It started with the misapplication of a World War II era case involving citizens of one of our sworn enemies at the time: Germany. In Clark v. Allen,20 the Supreme Court held in upholding the right of German nationals to inherit property even during the Second World War, that: Nor has California entered into the forbidden domain of negotiating with a foreign country, United States v. Curtiss-Wright Corp., 299 U.S. 304, 316-17, or making a compact with it contrary to the prohibition of Article I, Section 10 of the Constitution.21 Clark was severely distinguished in Zschernig v. Miller,22 where the Court held that the application of the Oregon probate law to bar the Zschernigs, residents of the German Democratic Republic [East Germany] from inheriting personal property violated the Constitutional bar to states conducting foreign policy. The Oregon Supreme Court
establish an uniform Rule of Naturalization, U. S. Const., Art. I, 8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations, see Toll, supra, at 10 (citing United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 318 (1936)). Accord, Toll v. Moreno, 458 U.S. 1, 10 (1982). 19 299 U.S. At 319-20. 20 331 U.S. 503 (1947) 21 331 U.S. at 517. 22 389 U.S. 429 (1968)

had found that the Clark opinion barred the taking of the personalty.23 The Supreme Court held that because the application of probate statutes to bar residents and citizens of the Soviet Union and Eastern bloc nations was done because of the nature of the governments ruling those nations. This kind of political discrimination among foreign nationals had the effect of placing state probate courts in the position of taking foreign policy positions as to the type of regime happened to rule there.24 The Court held in Zschernig that [T]hat kind of state involvement in foreign affairs and international relations--matters which the Constitution entrusts solely to the Federal Government--is not sanctioned by Clark v. Allen.25 The Court further held that Oregon's probate law affects international relations in a persistent and subtle way26 and further contends that even though probate law is traditionally a state function, it must not

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Clark held that the Treaty of Friendship, Commerce and Consular Rights with Germany, 44 Stat. 2132 required the German legatees to take the realty but only the personalty if they were German citizens. 331 U.S at 517. There was no discussion of any foreign policy determination by state courts other than that incidental to the interpretation of the treaty. Id at 517 (What California has done will have some incidental or indirect effect in foreign countries. But that is true of many state laws which none would claim cross the forbidden line.) See 389 U.S at 435, n. 6 and 437-40, n. 8-9 where various state courts held that inter alta: That Russia (sic) had no separation of powers, too much control in the hands of the Communist Party, no independent judiciary...[The court] concluded that a leading Soviet jurist's construction of article 8 of the law enacting the R.S.F.S.R. Civil Code seemed modeled after Humpty Dumpty, who said, 'When I use a word....it means just what I choose it to mean-neither more nor less,' Id at 6. A New York judge held that This court would consider sending money out of this country and into Hungary tantamount to putting funds within the grasp of the Communists...If this money were turned over to the Russian (sic) authorities, it would be used to kill our boys and innocent people in Southeast Asia. Id at n. 8. A Pennsylvania judge said from the bench, If you want to say I'm prejudiced, you can, because when it comes to Communism I'm a bigoted anti-Communist, and another judge from the Keystone State said, I am not going to send any money to Russia (sic) where it can go into making bullets which may one day be used against my son. Id. A California judge denied rehearing with these words: No, I won't send any money to Russia. That judge took judicial notice that Russia (sic) kicks the United States in the teeth all the time and suggested that it was counsel for the Soviet claimant's patriotic duty to decline the representation. Id. Even the learned and respected Judge Musmanno of the Pennsylvania Supreme Court stated that holding the funds destined for the Soviet bloc until there was freedom for the claimants to hold the funds lest the funds be used ...by Communist forces...committed to the very destruction of that free enterprising world of democracy. Belemecich Estate, 411 Pa. 506, 508, 192 A.2d 740, 741, rev'd, sub nom Consul General of Yugoslavia v. Pennsylvania, 375 U.S. 395 (1964), on authority of Kolovrat v. Oregon, 366 U.S. 187 (1961). Other examples are cited throughout notes 8 and 9 of the Zschernig opinion. 389 U.S. At 436. 389 U.S at 440.

impair the effective exercise of the Nation's foreign policy27 and could adversely affect the power of the central government to deal with those problems.28 The issue of states staking out foreign policy positions was revisited in Crosby v. National Foreign Trade Council,29 where the Commonwealth of Massachusetts attempted to prohibit trade by the state (not private companies but just the state and its agencies) with the government of Burma (Myanmar) due to its alleged human rights violations.30 The District Court for the District of Massachusetts held the law to be unconstitutional and enjoined its enforcement; the First Circuit agreed.31 The Supreme Court granted certiorari and affirmed the First Circuit but on somewhat different grounds than the Circuit Court did. The primary ground was federal preemption of the field of Burmese economic sanctions.32 The Court did not reach the Zschernig issue. The pertinent issue for this essay is the Zschernig issue: The Court does not cite Zschernig by name but suggests the state law affirmatively interferes with the President's plenary power to act in foreign affairs and speak as our one representative abroad.33
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Id. 389 U.S at 441. 530 U.S. 363 (2000) 530 U.S. At 366-67. Shortly after the Massachusetts act, Congress passed its own sanctions law that authorized the President to act and he/she could remove the sanctions under certain conditions. 530 U.S. At 368-69. Among other human rights violations cited by Congress in this legislation, the detention of the Nobel Peace laureate, opposition leader Daw Aung San Suu Kyi. Id. National Foreign Trade Council v. Natsios, 181 F.3d 38, 52-55 (1st Cir. 1999). The First Circuit held the Massachusetts law to be invalid for three reasons: The dormant commerce clause, the preemption of the federal sanctions law, and the want of authority in the states to conduct foreign policy under Zschernig. See 181 F.3d at 52-55 for the Zschering holding. 530 U.S. At 388. Because the state Act's provisions conflict with Congress's specific delegation to the President of flexible discretion,...it is preempted, and its application is unconstitutional, under the Supremacy Clause. 530 U.S. At 380. Finally the state act is at odds with the President's intended authority to speak for the United States among the world's nations...Again, this state act undermines the President's capacity, in this instance for effective diplomacy...[the differences between the state and Federal sanctions acts] compromise the very capacity of the President to speak with the nation with one voice in dealing with other governments. Again, the Crosby case uses preemption as the basis for its holding, it is clear that that holding contains the unstated Zschernig/Curtiss-Wright holding prohibiting states from conducting its own foreign policy goals.

Two other recent cases speak, not to foreign policy, but the limits of the powers of the states to compact with each other in areas Congress has not specifically authorized.34 In New Hampshire v. Maine,35 the Court had to deal with the Compact Clause in the context of a state boundary. There was an agreement to fix the boundary in accordance with a prior 1740 decision of the King between the Colonies of New Hampshire and Massachusetts (which Maine was a part of until 1820 when it became a separate state).36 New Hampshire argued that this consent decree between the states could not be enforced without the approval of Congress: Accordingly, neither State can be viewed as enhancing its power in any sense that threatens the supremacy of the Federal Government.37 United States Steel Corp. v. Multistate Tax Commission,38 is in accord. There the Court held that interstate compacts that did not entrench upon the interests or the powers of the national government did not require Congressional approval.39 It would seem on the basis of these cases that foreign policy cannot be the subject of a compact. However, there are climate change compacts between states, Canadian provinces and Mexican states.40 Such an international compact would seem to be ipso
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The Congress has not especially authorized by name local governments to join ICLEI. The consent required by Congress for states to enter into an interstate compact can be express or implied and consent can be authorized before the existence of the interstate compact. Cuyler v. Adams, 449 U.S. 433, 441 (1981). I did not find such authority in the United States Code. As for the global warming convention, see supra notes ____. 426 U.S. 363 (1976) 426 U.S. at 370. Id. 434 U.S. 452 (1978) 434 U.S. At 472-73. The test is: Does the compact ...enhance the political power of the member States in a way that encroaches upon the supramacy of the United States...[and]...whether the Compact enhances state power quoad the National Government. This pact does not purport to authorize the member states they could not exercise its absence. It would seem in light of Zschernig and Crosby that foreign policy is a core power of the national government and cannot be the subject of a compact between US municipalities and their foreign counterparts. There could be a situation in a future administration where the President is opposed to strengthening anti-global warming rules and ICLEI, made up in part of American cities supports the measures. We have to speak as one in foreign policy. See, e.g., the Western Climate Initiative made up of the states of Arizona, California, Montana, New Mexico, Oregon, Utah and Washington, the provinces of British Columbia, Manitoba, Ontario, Quebec, and the leaders

facto unconstitutional on its face, although some scholarly authorities are in dispute on this question.41 The defense would be that the Climate Change Convention authorizes states to enter into compacts to combat global warming and effect the will of Congress. That defense would not authorize membership in ICLEI or any similar organization. There is one climate change related treaty that has been ratified by the United States: The United Nations Framework Convention on Climate Change.42 Ratified on June 12, 1992,43 the Convention is a largely aspirational agreement among the nations to combat global warming.44 The Convention is also a treaty among nations and does not discuss local governments. But it has one problematic clause that may be argued authorize (and perhaps mandate) an organization like ICLEI:
of this compact have invited Mexican states to join them. See www.westernclimateinitiative.org. It may well have bene an open question if Senate Bill 1507 passes (banning state involvement in any aspect of the Rio Convention) and is signed by Governor Brewer whether Arizona could or would legally be able to remain in the WCI. Hollis, Unpacking the Compact, ___ Georgetown L. J. ___, ___ (200?) argues that there are TWO Compact Clauses: One between states and one between states and foreign governments and that the latter DOES require express Congressional approval. Accord, Naujoks, Compacts and Agreements Between States and Between States and a Foreign Power, 36 Marq. L. Rev. 219, 233-34 (1953)(Logic likewise would dictate the view that under the Constitution a compact between one or more states and a foreign power is permissible and is on the same level as an ordinary compact between two states.) The text of the Convention may be found here: http://unfccc.int/essential_background/convention/items/6036.php http://unfccc.int/essential_background/convention/status_of_ratification/items/2631.php Compare these clauses:

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Recalling also that States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction, Reaffirming the principle of sovereignty of States in international cooperation to address climate change,...
with this one:

Acknowledging that the global nature of climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response, in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions,...

4. The Parties have a right to, and should, promote sustainable development. Policies and measures to protect the climate system against human-induced change should be appropriate for the specific conditions of each Party and should be integrated with national development programmes, taking into account that economic development is essential for adopting measures to address climate change.45 This clause sounds like an general, non-binding endorsement of sustainable development and it only discusses national governments. No act of Congress specifically endorses or requires ICLEI membership by US municipalities. Does ICLEI actually conduct foreign policy on behalf of its members? It by its own admission seeks to represent its members before United Nations agences and at climate conferences: ICLEI also negotiates for its members before United Nations agencies: In collaboration with partners such as UN-Habitat, Cities Alliance and ICLEI Local Governments for Sustainability, UNEP is working on making cities more liveable, better prepared for the multiple environmental challenges they are facing, as well as giving them a stronger voice in the international climate negotiations.46 This kind of activity would seem to run afoul of both Curtiss-Wright and New Hampshire v. Maine doctrines. Conducting negotiations between municipalities both US and foreign, no matter how noble the intent, is a power United States states and local governments simply do not have. This type of activity would also interfere with the plenary power of the national government to conduct foreign policy, especially the President.47 Curtiss-Wright was cited by the Court in Clark v. Allen as saying, Nor has California entered into the forbidden domain of negotiating with a foreign country, United
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Article 3, Section 4 of the UNFCCC. See http://www.unep.org/publications/ebooks/annual-report09/Content.aspx?id=ID0E2B11111 See The Federalist, No. 42 (Madison) arguing that if we are to be one nation in any respect, it clearly ought to be in respect to other nations. Also see Hollis, Unpacking the Compact Clause, Texas Law Review 2009

States v. Curtiss-Wright Corp., 299 U.S. 304, 316-17, or making a compact with it contrary to the prohibition of Article I, Section 10 of the Constitution.48 Clark thus also seems to forbid categorically any compact with a foreign nation (or subdivision of a national government) in absolute terms. There would be a grave issue if any treaty authorized states and local governments to conduct foreign policy. The issue of such delegation is an open one but it would be difficult to imagine such a scenario.49 It would seem to violate the Curtiss-Wright principle that the President's foreign policy authority to speak for the nation is complete and exclusive. Congress is silent on the question of how local governments could assist in the implementation of this treaty obligation. So, the question seems joined: There are grave constitutional concerns about any United States municipality joining an international organization such as ICLEI with these political goals and taking positions at international climate conferences. I doubt it would be feasible for activists to sue their municipality over ICLEI dues in Federal Court.50 Maybe if a state has liberal taxpayer standing, there may be a test case possible. However, the likelihood is high that a municipal attorney or a state attorney general might be asked to render a formal legal opinion by a member of a local or state governing body. May this article be of assistance to that official in the discharge of his or her duties. SDG51

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331 U.S. At 517. I suppose the Federal Government could authorize say sanctions against Burma by state and local governments and that would not be a violation of the Compact or Confederation Clause; however, that would not be the states or localities acting on their own but under the authority already taken by the national government. However, nothing like that has been authorized in the case of ICLEI. See e.g., Arizona Christian School Tuition Organization v. Winn, ___ U.S. ___, 131 S.Ct. 1436, 1440 (2011) Soli Deo Gloria (To God be the Glory). It is how J.S. Bach ended every piece of music he ever wrote.