The functional arguments for granting the federal government exclusive control over foreign affairs and completely preempting state and local action in that arena under the dormant Foreign Commerce Clause analysis include the following.
Furthermore, globalization and the growing ability of nations to target their retaliation against subnational actors have greatly weakened the functional argument for abrogating states' rights in the field of foreign affairs.
(123) The orthodox view draws much of its strength from a functional argument in support of federal exclusivity in foreign affairs.
This functional argument finds its legal justification in the vague confidence that there must be a broad constitutional principle that makes foreign policy exclusively a national preserve.
Furthermore, the advent of globalization and the growing ability of nations to target their retaliation against subnational actors have greatly weakened the functional argument for abrogating states' rights in the field of foreign affairs.
But I hope that the following functional arguments might at least induce some scholars to refocus their arguments against Eleventh Amendment jurisprudence toward the sorts of practical considerations that interest me the most.
The functional argument for enumerated powers is too familiar to need any defense.
The functional argument in favor of the federal power to regulate states' personnel and property is precisely that this power would be difficult for Congress to purchase because of the danger of states' "holding out." What, then, is the point of withholding from Congress one particular means of effective enforcement of valid federal statutes?
Assume provisionally that this functional argument for distinguishing between damages and injunctions makes some practical sense as a way to prevent "picket fence" federalism.