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Nonactor States in U.S. Foreign Relations?: The Massachusetts Burma Law

  • Joel P. Trachtman (a1)

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1 See, e.g., Bilder, Richard B., The Role of States and Cities in Foreign Relations, 83 AJIL 821 (1989); Fry, Earl H., The US States and Foreign Economic Policy: Federalism in the “New World Order,” in Foreign Rel. And Fed. States 122 (Hocking, Brian ed., 1993).

2 Louis Henkin, Foreign Affairs and the United States Constitution 150 (2d ed. 1996). Of course, Henkin is careful to recognize that “despite careless, flat statements to the contrary, the foreign relations of the United States are not in fact wholly insulated from the states.” Id. In fact, the call of foreign affairs is so strong that it actually can increase the power of the federal government compared to that available in domestic affairs. Missouri v. Holland, 252 U.S. 416 (1920).

3 The Act Regulating State Contracts with Companies Doing Business with or in Burma (Myanmar) of June 25, 1996, ch. 130, § 1, 1996 Mass. Acts 210, Mass. Gen. Laws Ann. ch. 7, 22G-22M (West Supp. 1997) (the “Burma Law”). I advise the Commonwealth of Massachusetts on international trade law issues arising from the Burma Law.

4 493 U.S. 400 (1990).

5 19 U.S.C. 3512(b)(2)(A). On the URAA provisions concerning the states generally, see Wilson, Joseph A., Note: Section 102 of the Uruguay Round Agreements Act: “Preserving” State Sovereignty, 6 Minn. J. Global Trade 401 (1997).

6 19 U.S.C. §3512(b)(2)(B)(i).

7 Of course, as a matter of international law, the United States, like other WTO members, has agreed to binding international dispute resolution.

8 Section 102 of the URAA, 19 U.S.C. 3512, states that Congress approves the GPA. The GPA would thus appear to become the law of the United States, and indeed Congress contemplated in § 102(c) that the federal government could sue to enforce the Uruguay Round Agreements in U.S. courts. However, Congress provided therein that no other person would have a private right of action.

9 It is worth questioning whether this burden should not be left on the federal legislature. See Goldsmith, Jack L., Federal Courts, Foreign Affairs and Federalism, 83 Va. L. Rev. 1617 (1997).

10 See Hillsborough County, Florida v. Auto. Med. Labs., 471 U.S. 707, 713 (1985).

11 Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

12 475 U.S. 282(1986).

13 See Board of Trastees v. Mayor of Baltimore, 317 Md. 72 (1989), cert, denied, 493 U.S. 1093 (1990). But see Schmahmann, David & Finch, James, The Unconstitutionality of State and Local Enactments in the United States Restricting Business Ties with Burma (Myanmar), 30 Vand. J. Transnat’l L. 175, 185 (1997) (arguing that Gould is controlling).

14 The Court stated, “We agree with the Court of Appeals, however, that by flatly prohibiting state purchases from repeat labor law violators Wisconsin ‘simply is not functioning as a private purchaser of services... ‘; for all practical purposes, Wisconsin’s debarment scheme is tantamount to regulation.” 475 U.S. at 289. The Court seemed to emphasize the need for a flat prohibition as a basis for finding that the Wisconsin law was regulatory in nature.

15 See Schmahmann & Finch, supra note 13, at 185-89.

16 DeCanas v. Bica, 424 U.S. 351 (1976) (no preemption where subject matter within state concurrent authority and no clear congressional intent to preempt); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963) (“federal regulation ... should not be deemed preemptive of state regulatory power in the absence of persuasive reasons—either that the nature of the regulated subject matter permits no other conclusion, or that Congress has unmistakably so ordained.”). But see Hines v. Davidowitz, 312 U.S. 52 (1941) (congressional intent to act exclusively invalidates Pennsylvania statute modeled after federal law). There is no showing that Congress intended to act exclusively in connection with the federal Burma law.

17 White v. Massachusetts Council of Construction Employers, 460 U.S. 204, 208 (1983).

18 Reeves Inc. v. Stake, 447 U.S. 429, 436-37 (1980).

19 See White v. Mass. Council of Construction Employers, Inc., 460 U.S. 204, 218 (Blackmun, J. concurring); Reeves, 447 U.S. at 441.

20 Tiefer, Charles, Free Trade Agreements and the New Federalism, 7 Minn. J. Global Trade 45 (1998).

21 It was first enunciated in Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 810 (1976).

22 Reeves, Inc. v. Stake, 447 U.S. 429, 438 (1980) (quoting Heim v. McCall, 239 U.S. 175, 191 (1915)).

23 South-Central Timber Dev. v. Wunnicke, 467 U.S. 82 (1984) (analyzing the availability of the market participant doctrine, but striking down the state statute); Trojan Technologies, Inc. v. Pennsylvania, 916 F.2d 903 (3rd Cir. 1990) (Pennsylvania statute requiring state agencies to require U.S.-made steel in public works projects, upheld under market participant doctrine), cert, denied, 501 U.S. 1212(1991).

24 467 U.S. at 96. The KSB Technical Sales court applied the market participant doctrine to uphold New Jersey’s buy-American law. KSB Technical Sales Corp. v. North Jersey District Water Supply Comm’n., 75 N.J. 272, 381 A.2d 774 (1977), appeal dismissed, 435 U.S. 982 (1978).

25 Japan Line v. County of Los Angeles, 441 U.S. 434, 446-48 (1979); South-Central Timber Dev. v. Wunnicke, 467 U.S. 82, 100 (1984).

26 In Justice Sandra Day O’Connor’s words, “Where, however, a regulation ‘affirmatively’ or clearly’ discriminates against interstate commerce on its face or in practical effect, it violates the Constitution unless the discrimination is demonstrably justified by a valid factor unrelated to protectionism.” C&A Carbone, Inc. v. Town of Clarkstown, 114 S.Ct. 1677, 1688 (1994) (O’Connor, J., concurring).

27 New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 274 (1988).

28 Associated Ind. of Missouri v. Lohman, 511 U.S. 641, 647 (1994) (quoting Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978)); see also C&A Carbone, Inc. v. Town of Clarkstown, 114 S.Ct. 1677 (1994).

29 Id.; see Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).

30 C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 402 (1994) (O’Connor, J., concurring) (citing Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 579 (1986); Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)). Note, however, that in dissent, Justice Souter, joined by Blackmun and Rehnquist, argue that at least in the context of processing services, all the laws invalidated under the Commerce Clause were “patently discriminatory,” except in the case of Pike v. Bruce Church. C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 414 (Souter, J., dissenting) (1994); see also Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978).

31 317 Md. 72 (1989), cert. denied, 493 U.S. 1093 (1990).

32 317 Md. at 144.

33 Japan Line Ltd. v. Los Angeles County, 441 U.S. 434, 451 (1979).

34 Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434 (1979) (invalidating California property tax under the Commerce Clause); Barclays Bank v. Franchise Tax Bd., 512 U.S. 298 (1994).

35 See Tiefer, supra note 19, at 49-51.

36 Barclays Bank v. Franchise Tax Bd., 512 U.S. 298, 324, 329 (1994). While Congress has delegated power to the Executive pursuant to various measures, none of these delegations seem to denote an intent to preempt, nor has the Executive acted to, or voiced a desire to, preempt.

37 Wardair Canada Inc. v. Florida Dept. of Revenue, 477 U.S. 1 (1986).

38 477 U.S. at 12.

39 512 U.S. at 323.

40 Zschernig v. Miller, 389 U.S. 429, reh ‘g denied, 390 U.S. 974 (1968).

41 389 U.S. 435-36.

42 See Frank Phillips, Apple Cites Mass. Law in Burma Decision, Boston Globe, Oct. 4, 1996, at B6.

43 Trojan Technologies, Inc. v. Pennsylvania, 916 F.2d 903, 913 (3d Cir. 1990).

44 See Tiefer, supra note 20.

45 For a nuanced argument based on constitutional history, see Goldsmith, supra note 8. Goldsmith argues that neither constitutional history nor long-established precedent supports a dormant federal foreign-affairs doctrine that would, without federal action, invalidate state acts that impinge upon foreign affairs.

46 See Tribe, Laurence H., Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221 (1995).

47 Tiefer, supra note 20, at 48.

* I would like to thank Jeff Atik, Tom Barnico, Nick Rostow and Detlev Vagts for research advice and conversations, and Qazi Mohammad Maarij-Uddin for research assistance. This essay, and the speech upon which it is based, is my personal responsibility, and is not intended to reflect the views of the Commonwealth of Massachusetts.

Nonactor States in U.S. Foreign Relations?: The Massachusetts Burma Law

  • Joel P. Trachtman (a1)

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