MASSACHUETTS BURMA LAW CASE
.\Crosby v. National Foreign Trade Council
....... Supreme Court of the United States
....530 U.S. 363, 120 Sct. 2288, 147 L.Ed. 352 (2000)

Author's Note: A private corporation, the National Foreign Trade Council, represents its member companies in the United States engaged in foreign trade. A number of those member companies were subject to a Massachusetts state law which affected their ability to engage in trade with Burma. The Trade Council thus sued Massachusetts state officials (including the Massachusetts Secretary of Administration and Finance), seeking a declaration that the "Massachusetts Burma Law" (MBL) was unconstitutional. The Council alleged that the MBL--which restricted the ability of Massachusetts and its various state agencies to purchase goods or services from companies doing business with Burma (now Myanmar)--violated the Supremacy Clause of the federal Constitution. That clause provides, among other things, that federal law governs in the event of a conflict with state law.
.....Most case and statutory citations are omitted from this edited version of the case. Red paragraph numbers have been added to the text to facilitate ease of reference.
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[Court's Opinion.] Justice Souter delivered the opinion of the Court.

1. The issue is whether the Burma law of the Commonwealth of Massachusetts, restricting the authority of its agencies to purchase goods or services from companies doing business with Burma, [FN1] is invalid under the Supremacy Clause of the National Constitution owing to its threat of frustrating federal statutory objectives. We hold that it is.

FN1. The Court of Appeals noted that the ruling military government of "Burma changed [the country's] name to Myanmar in 1989," but the court then said it would use the name Burma since both parties . . . the state law, and the federal law all do so. We follow suit, noting that our use of this term . . . is not intended to express any political view.

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2.
In June 1996, Massachusetts adopted "An Act Regulating State Contracts with Companies Doing Business with or in Burma (Myanmar)." The statute generally bars state entities from buying goods or services from any person (defined to include a business organization) identified on a "restricted purchase list" of those doing business with Burma. Although the statute has no general provision for waiver or termination of its ban, it does exempt from boycott any entities present in Burma solely to report the news, or to provide international telecommunication goods or services, or medical supplies.

3. " 'Doing business with Burma' " is defined [very] broadly to cover any person:
"(a) having a principal place of business, place of incorporation or its corporate headquarters in Burma
.....(Myanmar) or having any operations, leases, franchises, majority-owned subsidiaries, distribution agreements, .....or any other similar agreements in Burma (Myanmar), or being the majority-owned subsidiary, licensee or .....franchise of such a person;
"(b) providing financial services to the government of Burma (Myanmar), including providing direct loans,
......underwriting government securities, providing any consulting advice or assistance, providing brokerage ......services, acting as a trustee or escrow agent, or otherwise acting as an agent pursuant to a contractual ......agreement;
"(c) promoting the importation or sale of gems, timber, oil, gas or other related products, commerce in which is
......largely controlled by the government of Burma (Myanmar), from Burma (Myanmar); [and]
"(d) providing any goods or services to the government of Burma (Myanmar)."

4. There are three exceptions to the ban [which unnecessary for analyzing this edited version of the case]....[FN2]

FN2. According to the District Court, companies may challenge their inclusion on the list by submitting an affidavit stating that they do no business with Burma.

5. In September 1996, three months after the Massachusetts law was enacted, Congress passed a statute imposing a set of mandatory and conditional sanctions on Burma. See Foreign Operations, Export Financing, and Related Programs Appropriations Act. . . . The federal Act has five basic parts . . . . First, it imposes three sanctions directly on Burma. It bans all aid to the Burmese Government except for humanitarian assistance, counternarcotics efforts, and promotion of human rights and democracy. The statute instructs United States representatives to international financial institutions to vote against loans or other assistance to or for Burma, and it provides that no entry visa shall be issued to any Burmese government official unless required by treaty or to staff the Burmese mission to the United Nations. These restrictions are to remain in effect "[u]ntil such time as the President determines and certifies to Congress that Burma has made measurable and substantial progress in improving human rights practices and implementing democratic government."

6. Second, the federal Act authorizes the President to impose further sanctions subject to certain conditions. He may prohibit "United States persons" from "new investment" in Burma, and shall do so if he determines and certifies to Congress that the Burmese Government has physically harmed, rearrested, or exiled Daw Aung San Suu Kyi (the opposition leader selected to receive the Nobel Peace Prize), or has committed "large-scale repression of or violence against the Democratic opposition." ...

7. Third, the statute directs the President to work to develop "a comprehensive, multilateral strategy to bring democracy to and improve human rights practices and the quality of life in Burma." He is instructed to cooperate with members of the Association of Southeast Asian Nations (ASEAN) and with other countries having major trade and investment interests in Burma to devise such an approach, and to pursue the additional objective of fostering dialogue between the ruling State Law and Order Restoration Council (SLORC) and democratic opposition groups.

8. ... [T]he fourth section requires the President to report periodically to certain congressional committee chairmen on the progress toward democratization and better living conditions in Burma as well as on the development of the required strategy. And the fifth part of the federal Act authorizes the President "to waive, temporarily or permanently, any sanction [under the federal Act] ... if he determines and certifies to Congress that the application of such sanction would be contrary to the national security interests of the United States."
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9.
Respondent National Foreign Trade Council (Council) is a nonprofit corporation representing companies engaged in foreign commerce; 34 of its members were on the Massachusetts restricted purchase list in 1998. . . .

10. In April 1998, the Council filed suit in the United States District Court for the District of Massachusetts, seeking declaratory and injunctive relief against the petitioner state officials charged with administering and enforcing the state Act (whom we will refer to simply as the State). The Council argued that the state law unconstitutionally infringed on the federal foreign affairs power, violated the Foreign Commerce Clause, and was preempted by the federal Act. After detailed stipulations, briefing, and argument, the District Court permanently enjoined enforcement of the state Act, holding that it "unconstitutionally impinge[d] on the federal government's exclusive authority to regulate foreign affairs."

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11.
A fundamental principle of the Constitution is that Congress has the power to preempt [inconsistent] state law....

12. [W]e see the state Burma law as an obstacle to the accomplishment of Congress's full objectives under the federal Act. We find that the state law undermines the intended purpose and "natural effect" of at least three provisions of the federal Act, that is, its delegation of effective discretion to the President to control economic sanctions against Burma, its limitation of sanctions solely to United States persons and new investment, and its directive to the President to proceed diplomatically in developing a comprehensive, multilateral strategy towards Burma.
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13.
First, Congress clearly intended the federal act to provide the President with flexible and effective authority over economic sanctions against Burma. Although Congress immediately put in place a set of initial sanctions (prohibiting bilateral aid, support for international financial assistance, and entry by Burmese officials into the United States, it authorized the President to terminate any and all of those measures upon determining and
certifying that there had been progress in human rights and democracy in Burma. It invested the President with the further power to ban new investment by United States persons, dependent only on specific Presidential findings of repression in Burma. And, most significantly, Congress empowered the President "to waive, temporarily or permanently, any sanction [under the federal act] ... if he determines and certifies to Congress that the application of such sanction would be contrary to the national security interests of the United States."

14. ... Within the sphere defined by Congress, then, the statute has placed the President in a position with as much discretion to exercise economic leverage against Burma, with an eye toward national security, as our law will admit. And it is just this plenitude of Executive authority that we think controls the issue of preemption here. The President has been given this authority not merely to make a political statement but to achieve a political result, and the fullness of his authority shows the importance in the congressional mind of reaching that result. It is simply implausible that Congress would have gone to such lengths to empower the President if it had been willing to compromise his effectiveness by deference to every provision of state statute or local ordinance that might, if enforced, blunt the consequences of discretionary Presidential action.

15. And that is just what the Massachusetts Burma law would do in imposing a different, state system of economic pressure against the Burmese political regime [italics added]. As will be seen, the state statute penalizes some private action that the federal Act (as administered by the President) may allow, and pulls levers of influence that the federal Act does not reach. But the point here is that the state sanctions are immediate . . . and perpetual, there being no termination provision. This unyielding application undermines the President's intended statutory authority by making it impossible for him to restrain fully the coercive power of the national economy when he may choose to take the discretionary action open to him, whether he believes that the national interest requires sanctions to be lifted, or believes that the promise of lifting sanctions would move the Burmese regime in the democratic direction. Quite simply, if the Massachusetts law is enforceable the President has less to offer and less economic and diplomatic leverage as a consequence.
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16.
Congress manifestly intended to limit economic pressure against the Burmese Government to a specific range. The federal Act confines its reach to United States persons, imposes limited immediate sanctions, places only a conditional ban on a carefully defined area of "new investment," and pointedly exempts contracts to sell or purchase goods, services, or technology. These detailed provisions show that Congress's calibrated Burma policy is a deliberate effort "to steer a middle path," [thus] "strik[ing] a balance between unilateral sanctions against Burma and unfettered United States investment in that country"....

17. The State has set a different course, and its statute conflicts with federal law at a number of points by penalizing individuals and conduct that Congress has explicitly exempted or excluded from sanctions. . . .

18. The conflicts are not rendered irrelevant by the State's argument that there is no real conflict between the statutes because they share the same goals and because some companies may comply with both sets of restrictions. The fact of a common end hardly neutralizes conflicting means, and the fact that some companies may be able to comply with both sets of sanctions does not mean that the state Act is not at odds with achievement of the federal decision about the right degree of pressure to employ. Sanctions are drawn not only to bar what they prohibit but to allow what they permit, and the inconsistency of sanctions here undermines the congressional calibration of force.
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19.
Finally, the state Act is at odds with the President's intended authority to speak for the United States among the world's nations in developing a "comprehensive, multilateral strategy to bring democracy to and improve human rights practices and the quality of life in Burma." Congress called for Presidential cooperation with members of ASEAN and other countries in developing such a strategy, directed the President to encourage a dialogue between the government of Burma and the democratic opposition, ibid., [FN15] and required him to report to the Congress on the progress of his diplomatic efforts.

FN15. The record supports the conclusion that Congress considered the development of a multilateral sanctions strategy to be a central objective of the federal act. See, e.g., 142 Cong. Rec. 19212 (1996) (remarks of Sen. Cohen) ("[T]o be effective, American policy in Burma has to be coordinated with our Asian friends and allies"); id., at 19219 (remarks of Sen. Feinstein) ("Only a multilateral approach is likely to be successful").

20. Again, the state Act undermines the President's capacity, in this instance for effective diplomacy. It is not merely that the differences between the state and federal Acts in scope and type of sanctions threaten to complicate discussions; they compromise the very capacity of the President to speak for the Nation with one voice in dealing with other governments. We need not get into any general consideration of limits of state action affecting foreign affairs to realize that the President's maximum power to persuade rests on his capacity to bargain for the benefits of access to the entire national economy without exception for enclaves fenced off willy-nilly by inconsistent political tactics. When such exceptions do qualify his capacity to present a coherent position on behalf of the national economy, he is weakened, of course, not only in dealing with the Burmese regime, but in working together with other nations in hopes of reaching common policy and "comprehensive" strategy. [FN17]

FN17. The record reflects that sponsors of the federal Act were well aware of this concern and provided flexibility to the President over sanctions for that very reason. See, e.g., 142 Cong. Rec. at 19214 (statement of Sen. Thomas) ("Although I will readily admit that our present relationship with Burma is not especially deep, the imposition of mandatory sanctions would certainly downgrade what little relationship we have. Moreover, it would affect our relations with many of our allies in Asia as we try to corral them into following our lead"); id., at 19219 (statement of Sen. Feinstein) ("It is absolutely essential that any pressure we seek to put on the Government of Burma be coordinated with the nations of ASEAN and our European and Asian allies [italics added]. If we act unilaterally, we are more likely to have the opposite effect--alienating many of these allies, while having no real impact on the ground").

21. While the threat to the President's power to speak and bargain effectively with other nations seems clear enough, the record is replete with evidence to answer any skeptics. First, in response to the passage of the [Massachusetts] state Act, a number of this country's allies and trading partners filed formal protests with the National Government, see 181 F.3d, at 47 (noting protests from Japan, the European Union (EU), and ASEAN), including an official Note Verbale from the EU to the Department of State protesting the state Act. EU officials have warned that the state Act "could have a damaging effect on bilateral EU-US relations."

22. Second, the EU and Japan have gone a step further in lodging formal complaints against the United States in the World Trade Organization (WTO), claiming that the state Act violates certain provisions of the Agreement on Government Procurement, and the consequence has been to embroil the National Government for some time now in international dispute proceedings under the auspices of the WTO. In their brief before this Court, EU officials point to the WTO dispute as threatening relations with the United States, and note that the state Act has become the topic of "intensive discussions" with officials of the United States at the highest levels, those discussions including exchanges at the twice yearly EU-U.S. Summit.

23. Third, the Executive has consistently represented that the state Act has complicated its dealings with foreign sovereigns and proven an impediment to accomplishing objectives assigned it by Congress. Assistant Secretary of State Larson, for example, has directly addressed the mandate of the federal Burma law in saying that the imposition of unilateral state sanctions under the state Act "complicates efforts to build coalitions with our allies" to promote democracy and human rights in Burma. A. Larson, State and Local Sanctions: Remarks to the Council of State Governments 5 (Dec. 8, 1998). "[T]he EU's opposition to the Massachusetts law has meant that U.S. government high level discussions with EU officials often have focused not on what to do about Burma, but on what to do about the Massachusetts Burma law." This point has been consistently echoed in the State Department:

"While the [Massachusetts sanctions on Burma] were adopted in pursuit of a noble goal, the restoration of democracy in Burma, these measures also risk shifting the focus of the debate with our European Allies away from the best way to bring pressure against the State Law and Order Restoration Council (SLORC) to a potential WTO dispute over its consistency with our international obligations. Let me be clear. We are working with Massachusetts in the WTO dispute settlement
process. But we must be honest in saying that the threatened WTO case risks diverting United States' and Europe's attention from focusing where it should be--on Burma."

24. This evidence in combination is more than sufficient to show that the [Massachusetts] state Act stands as an obstacle in addressing the congressional obligation to devise a comprehensive, multilateral strategy.
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25.
Because the state Act's provisions conflict with Congress's specific delegation to the President of flexible discretion, with limitation of sanctions to a limited scope of actions and actors, and with direction to develop a comprehensive, multilateral strategy under the federal Act, it is preempted, and its application is unconstitutional, under the Supremacy Clause.

The judgment of the Court of Appeals for the First Circuit is affirmed.
It is so ordered.

Notes & Questions
1.
Both the state and the federal government sought the same objectives of democratization and adherence to ...human rights in "Burma." Why, then, was the state law deemed unconstitutional?
2. How did it interfere with the US President's ability to engage in foreign relations?
3. Why would the E.U. appear to be more concerned about dealing with the Massachusetts Burma Law than ...with Burma itself, as indicated in the text of the Supreme Court opinion?
4. In September, 2001, a federal judge dismissed suits brought by World War II slaves under a 1999 California
....law. The judge held that Code of Civil Procedure section 354.6, allowing such suits for compensation,
...."infringes on the federal government's exclusive power over foreign affairs." This particular order dismissed
....suits by Chinese, Korean, and Philippino plaintiffs. In an earlier dismissal, the same judge dismissed like suits
....by US and allied veterens, holding that the 1951 Treaty of Peace with Japan waived all such claims. The
....defendants in these suits included Japan's Nippon Steel, Mistubishi Corporation, and Japan Energy
....Corporation. In re World War II Era Japanese Forced Labor Litigation, 114 F.Supp.2d 939 (N.D.Cal.,
....2000). In Jan. 2003, the US SCt granted certiorari for the purpose of reviewing a 9th Cir case to determine
....whether this state statute violates federal law. American Ins. Ass'n v. Garamendi, 123 S.Ct. 817 (Jan. 10, ...2003).
5. As of December 2002, about twenty cities had passed resolutions urging federal authorities to respect the civil
....rights of local citizens in the national government's "war on terrorism." Efforts to pass similar measures were ....under way in more than sixty other cities. These resolutions are largely symbolic, but provide ostensible legal ....justification for local authorities to resist cooperating with the federal government--when civil liberties and ....constitutional rights are arguably being compromised. See M. Janofsky, Cities Urge Restraint in Fight ....Against Terror, NYT on the Web (Dec. 23, 2002).
6. The potential conflict between states of the United States, and the country as a whole, will be further addressed ....in other chapters. In the treaty chapter (Ch. 8), for example, you will examine and apply various constitutional ....law principles. One of them is that "No State shall enter into any Treaty, Alliance, or Confedration." US ....Const., Art. I, §10, clause 1 (thus empowering only the national government to engage in such foreign ....relations).
7. Can the US engage in treaties with a subsovereign of another nation? See In re Extradition of Coe, ___ ...F.Supp.2d ___, 2003 WestLaw 21051703 (Cent. Dist. Cal., 2003) (Hong Kong-US extradition treaty ...upheld).
Go To Chapter 2, text p.60, §2.2 STATE ...INFRASTRUCTURE after Massachusetts
.........Burma Law reference to this web page.

..Last rev: 07/05/03
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