The return of the states: constitutional dilemmas of state measures to defend national and state security

In response to perceptions that the People's Republic of China constitutes a hegemonic rival, both the United States Federal and individual U.S. state governments have enacted measures to defend against a myriad of alleged national security threats arising from the strategic competition. While Federal measures have garnered significant attention, a distinct and under-analysed phenomenon is the surge of individual U.S. states establishing measures designed to counter perceived threats to their citizens’ data, critical infrastructure, and economic well-being. However, the new state activism encroaches on policy-making that is often associated with national security and foreign affairs, which are considered ‘Federal territory’. In the past, state measures impacting foreign commerce and policy have raised the classic question of how to balance Federal power with individual state rights and have triggered ‘foreign affairs exceptionalism’ long understood as limiting state power when foreign affairs are involved. Prior litigation over state measures within the context of state overreach into foreign affairs generally focused on the dormant foreign commerce clause and preemption. State measures related to China present similar questions regarding potentially impermissible encroachment on foreign affairs. Yet traditional notions of foreign affairs exceptionalism are perhaps outdated given a rapidly changing international environment. The new geostrategic context and a dynamic re-conceptualization of national security (and state security) suggest that courts should re-examine the Constitutional battlegrounds in light of three unique factors: the expansion in conceptualizing security; China's unique political-economic governance model; and distinguishing between ‘offensive’ and ‘defensive’ deployments of state power.