The State of Louisiana recently enacted S.B. 839, a state law that mandates the use of the flag of the former Democratic Republic of Vietnam at all state-sponsored public functions and public schools where Vietnam is to be represented. S.B. 839 has added further tension to the relationship between Vietnam and the United States, which is already strained by the unresolved issue of American prisoners of war ("POWs"), those missing in action ("MIA") in Vietnam, and the recent opening of Vietnam's economy to the rest of the world. Although fifty-nine cities and three other states in the United States have passed resolutions similar to the law in Louisiana, S.B. 839 remains the only state legislation that retains vigorous anti-Communist language and forbids the flying of the actual Socialist flag. S.B. 839 is a form of unprotected government speech that intrudes on the federal government's exclusive power to handle foreign affairs in violation of the Dormant Foreign Affairs Power ("DFAP") doctrine. Established by the Supreme Court in Zschernig v. Miller, this doctrine has never been overruled. The Supreme Court has never directly spoken to the specific issue of flags as implements of foreign policy. Lower courts have limited their use of the DFAP doctrine to arguably more material issues, such as selective taxation or the denial of higher education to certain foreign students. Yet S.B. 839 touches upon the main concerns behind the DFAP doctrine: unwanted disturbance of the relationship between the United States and a foreign country, and encouragement of similar action by other states and cities. Because S.B. 839 poses a challenge to the traditional isolation of states from foreign affairs, the Vietnamese-American community should propose a version of S.B. 839 in the United States Congress if they wish to address their underlying concerns.
Letting Bayous Be Bygones: Should Louisiana Be Allowed to Mandate Use of the Pre-Socialist Vietnam Flag?,
14 Pac. Rim L & Pol'y J.
Available at: https://digitalcommons.law.uw.edu/wilj/vol14/iss1/6