Who preempted the Massachusetts Burma law? Federalism and political accountability under global trade rules

Publius

Volumn 31, Issue 3, 2001, Pages 173-202

  Stumberg, Robert ^a   Porterfield, Matthew C ^a  

^a GEORGETOWN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 0039147936     PISSN: 00485950     EISSN: None     Source Type: Journal    
DOI: 10.1093/oxfordjournals.pubjof.a004903     Document Type: Article

References (162)

1. The Federalist No. 39," The Federalist Papers, ed. Clinton Rossiter (New York: Mentor, 1961).
2. Ibid.
3. "The Federalist No. 46," The Federalist Papers, ed. Rossiter.
4. Crosby v. National Foreign Trade Council, 120 S. Ct. 2288.(2000).
5. See, for example, John Kincaid, "Constituent Diplomacy in Federal Polities and the Nation-state: Conflict and Cooperation," Federalism and International Relations: The Role of Subnational Units, eds. Hans J. Michelmann and Panayotis Soldatos (Oxford: Clarendon Press, 1990), pp. 55-57, 72-74; John Kincaid, "The International Competence of US States and Their Local Governments," Regional & Federal Studies 9 (Spring 1999): 111-130; Brian Hocking, Localizing Foreign Policy (New York: St. Martin's Press, 1993), pp. 36-47. With due respect for Hocking's work, we use Kincaid's term, "constituent diplomacy," because it captures the importance of states as constituents of Congress in the context of political process federalism.
6. See, for example, John Kincaid, "Constituent Diplomacy in Federal Polities and the Nation-state: Conflict and Cooperation," Federalism and International Relations: The Role of Subnational Units, eds. Hans J. Michelmann and Panayotis Soldatos (Oxford: Clarendon Press, 1990), pp. 55-57, 72-74; John Kincaid, "The International Competence of US States and Their Local Governments," Regional & Federal Studies 9 (Spring 1999): 111-130; Brian Hocking, Localizing Foreign Policy (New York: St. Martin's Press, 1993), pp. 36-47. With due respect for Hocking's work, we use Kincaid's term, "constituent diplomacy," because it captures the importance of states as constituents of Congress in the context of political process federalism.
7. See, for example, John Kincaid, "Constituent Diplomacy in Federal Polities and the Nation-state: Conflict and Cooperation," Federalism and International Relations: The Role of Subnational Units, eds. Hans J. Michelmann and Panayotis Soldatos (Oxford: Clarendon Press, 1990), pp. 55-57, 72-74; John Kincaid, "The International Competence of US States and Their Local Governments," Regional & Federal Studies 9 (Spring 1999): 111-130; Brian Hocking, Localizing Foreign Policy (New York: St. Martin's Press, 1993), pp. 36-47. With due respect for Hocking's work, we use Kincaid's term, "constituent diplomacy," because it captures the importance of states as constituents of Congress in the context of political process federalism.
8. Ibid.; Terrence Guay, "Local Government and Global Politics: The Implications of Massachusetts' 'Burma Law," Political Science Quarterly 115 (Fall 2000): 374; John Kline, "Continuing Controversies Over State and Local Foreign Policy Sanctions in the United States," Publius: The Journal of Federalism 29 (Spring 1999): 130.
9. Ibid.; Terrence Guay, "Local Government and Global Politics: The Implications of Massachusetts' 'Burma Law," Political Science Quarterly 115 (Fall 2000): 374; John Kline, "Continuing Controversies Over State and Local Foreign Policy Sanctions in the United States," Publius: The Journal of Federalism 29 (Spring 1999): 130.
10. Ibid.; Terrence Guay, "Local Government and Global Politics: The Implications of Massachusetts' 'Burma Law," Political Science Quarterly 115 (Fall 2000): 374; John Kline, "Continuing Controversies Over State and Local Foreign Policy Sanctions in the United States," Publius: The Journal of Federalism 29 (Spring 1999): 130.
11. Ibid.; Kevin Whitelaw, "The Very Long Arm of the Law: Is the world ready for 7,284 secretaries of State?" U.S. News & World Report, 14 October 1996, available at http://usaengage.org/news/ 961014unwr.html; see also Michael Clough, "Grass Roots Policymaking, Saying Goodbye to the 'Wise Men,'" Foreign Affairs 73 (January-February 1994): 4-5.
12. Ibid.; Kevin Whitelaw, "The Very Long Arm of the Law: Is the world ready for 7,284 secretaries of State?" U.S. News & World Report, 14 October 1996, available at http://usaengage.org/news/ 961014unwr.html; see also Michael Clough, "Grass Roots Policymaking, Saying Goodbye to the 'Wise Men,'" Foreign Affairs 73 (January-February 1994): 4-5.
13. Ibid.; Kevin Whitelaw, "The Very Long Arm of the Law: Is the world ready for 7,284 secretaries of State?" U.S. News & World Report, 14 October 1996, available at http://usaengage.org/news/ 961014unwr.html; see also Michael Clough, "Grass Roots Policymaking, Saying Goodbye to the 'Wise Men,'" Foreign Affairs 73 (January-February 1994): 4-5.
14. Kincaid, "Constituent Diplomacy in Federal Polities and the Nation-state," 66.
15. Kline, "Continuing Controversies Over State and Local Foreign Policy," 125.
16. The parallels between the Burma boycott and the anti-Apartheid campaign led Archbishop Emeritus Desmond Tutu to call Burma the "South Africa" of the 1990s. Dennis Bernstein and Leslie Kean, "A Boycott for Burma, the South Africa of the 90s," San Francisco Examiner, 26 April 1996, p. A-23; "From South Africa to Burma," Boston Globe, 18 October 1993, p. 12. The military government of Burma killed thousands of students in the streets of Rangoon during political protests in 1988 and then repudiated elections in 1990, which had given 82 percent of the seats in Parliament to Aung San Suu Kyi's party, the National League for Democracy(NLD).. The military vowed to "annihilate" the NLD and has proceeded to imprison, economically coerce, and isolate NLD leaders and their supporters. See Bertil Lintner, "Tightening the Noose: Rangoon's Military Junta Seems Bent on Finishing off the Main Opposition Party this Year," Far Eastern Economic Review, 16 November 2000, p. 30;
17. The parallels between the Burma boycott and the anti-Apartheid campaign led Archbishop Emeritus Desmond Tutu to call Burma the "South Africa" of the 1990s. Dennis Bernstein and Leslie Kean, "A Boycott for Burma, the South Africa of the 90s," San Francisco Examiner, 26 April 1996, p. A-23; "From South Africa to Burma," Boston Globe, 18 October 1993, p. 12. The military government of Burma killed thousands of students in the streets of Rangoon during political protests in 1988 and then repudiated elections in 1990, which had given 82 percent of the seats in Parliament to Aung San Suu Kyi's party, the National League for Democracy(NLD).. The military vowed to "annihilate" the NLD and has proceeded to imprison, economically coerce, and isolate NLD leaders and their supporters. See Bertil Lintner, "Tightening the Noose: Rangoon's Military Junta Seems Bent on Finishing off the Main Opposition Party this Year," Far Eastern Economic Review, 16 November 2000, p. 30;
18. The parallels between the Burma boycott and the anti-Apartheid campaign led Archbishop Emeritus Desmond Tutu to call Burma the "South Africa" of the 1990s. Dennis Bernstein and Leslie Kean, "A Boycott for Burma, the South Africa of the 90s," San Francisco Examiner, 26 April 1996, p. A-23; "From South Africa to Burma," Boston Globe, 18 October 1993, p. 12. The military government of Burma killed thousands of students in the streets of Rangoon during political protests in 1988 and then repudiated elections in 1990, which had given 82 percent of the seats in Parliament to Aung San Suu Kyi's party, the National League for Democracy(NLD).. The military vowed to "annihilate" the NLD and has proceeded to imprison, economically coerce, and isolate NLD leaders and their supporters. See Bertil Lintner, "Tightening the Noose: Rangoon's Military Junta Seems Bent on Finishing off the Main Opposition Party this Year," Far Eastern Economic Review, 16 November 2000, p. 30;
19. "Burma Cracks Down on Pro-Democracy Party," Washington Post, 3 September 2000, p. A2;
20. Blaine Harden, "How to Commit the Perfect Dictatorship," New York Times, 21 November 2000, p. A3.
21. Mass. Gen. Laws Ann. ch. 7, � 22H-G (West 2000 Supp.).
22. Letter from Sabrina Johnson, Levi Strauss Corporation, to C.B. Loeb, Franklin Research & Development (22 June 1992); National Labor Committee, "U.S. Retailers Increase Use of Sweatshops in Burma as Imports Soar," (Washington, DC: National Labor Committee, 2000), pp. 2-3; Barbara Victor, The Lady, Aung San Suu Kyi, Nobel Laureate and Burma's Prisoner (New York: Faber and Faber, 1998), pp. 19-20. Sources on human-rights violations by the government of Burma include U.S. Department of Labor, 2000 Update on Forced Labor and Forced Relocation (Washington, DC: U.S. Department of Labor, 2000), part VI(A)-(B); and U.S. Committee for Refugees, World Refugee Survey 2000: Country Report: Burma (Washington, DC: U.S. Committee for Refugees, 2000), p. 1. For a synopsis of many other sources, see Robert Stumberg, "Preemption and Human Rights: Local Options After Crosby v. NFTC," Law and Policy in International Business 32 (Fall 2000): 163-169.
23. Letter from Sabrina Johnson, Levi Strauss Corporation, to C.B. Loeb, Franklin Research & Development (22 June 1992); National Labor Committee, "U.S. Retailers Increase Use of Sweatshops in Burma as Imports Soar," (Washington, DC: National Labor Committee, 2000), pp. 2-3; Barbara Victor, The Lady, Aung San Suu Kyi, Nobel Laureate and Burma's Prisoner (New York: Faber and Faber, 1998), pp. 19-20. Sources on human-rights violations by the government of Burma include U.S. Department of Labor, 2000 Update on Forced Labor and Forced Relocation (Washington, DC: U.S. Department of Labor, 2000), part VI(A)-(B); and U.S. Committee for Refugees, World Refugee Survey 2000: Country Report: Burma (Washington, DC: U.S. Committee for Refugees, 2000), p. 1. For a synopsis of many other sources, see Robert Stumberg, "Preemption and Human Rights: Local Options After Crosby v. NFTC," Law and Policy in International Business 32 (Fall 2000): 163-169.
24. Letter from Sabrina Johnson, Levi Strauss Corporation, to C.B. Loeb, Franklin Research & Development (22 June 1992); National Labor Committee, "U.S. Retailers Increase Use of Sweatshops in Burma as Imports Soar," (Washington, DC: National Labor Committee, 2000), pp. 2-3; Barbara Victor, The Lady, Aung San Suu Kyi, Nobel Laureate and Burma's Prisoner (New York: Faber and Faber, 1998), pp. 19-20. Sources on human-rights violations by the government of Burma include U.S. Department of Labor, 2000 Update on Forced Labor and Forced Relocation (Washington, DC: U.S. Department of Labor, 2000), part VI(A)-(B); and U.S. Committee for Refugees, World Refugee Survey 2000: Country Report: Burma (Washington, DC: U.S. Committee for Refugees, 2000), p. 1. For a synopsis of many other sources, see Robert Stumberg, "Preemption and Human Rights: Local Options After Crosby v. NFTC," Law and Policy in International Business 32 (Fall 2000): 163-169.
25. Letter from Sabrina Johnson, Levi Strauss Corporation, to C.B. Loeb, Franklin Research & Development (22 June 1992); National Labor Committee, "U.S. Retailers Increase Use of Sweatshops in Burma as Imports Soar," (Washington, DC: National Labor Committee, 2000), pp. 2-3; Barbara Victor, The Lady, Aung San Suu Kyi, Nobel Laureate and Burma's Prisoner (New York: Faber and Faber, 1998), pp. 19-20. Sources on human-rights violations by the government of Burma include U.S. Department of Labor, 2000 Update on Forced Labor and Forced Relocation (Washington, DC: U.S. Department of Labor, 2000), part VI(A)-(B); and U.S. Committee for Refugees, World Refugee Survey 2000: Country Report: Burma (Washington, DC: U.S. Committee for Refugees, 2000), p. 1. For a synopsis of many other sources, see Robert Stumberg, "Preemption and Human Rights: Local Options After Crosby v. NFTC," Law and Policy in International Business 32 (Fall 2000): 163-169.
26. Letter from Sabrina Johnson, Levi Strauss Corporation, to C.B. Loeb, Franklin Research & Development (22 June 1992); National Labor Committee, "U.S. Retailers Increase Use of Sweatshops in Burma as Imports Soar," (Washington, DC: National Labor Committee, 2000), pp. 2-3; Barbara Victor, The Lady, Aung San Suu Kyi, Nobel Laureate and Burma's Prisoner (New York: Faber and Faber, 1998), pp. 19-20. Sources on human-rights violations by the government of Burma include U.S. Department of Labor, 2000 Update on Forced Labor and Forced Relocation (Washington, DC: U.S. Department of Labor, 2000), part VI(A)-(B); and U.S. Committee for Refugees, World Refugee Survey 2000: Country Report: Burma (Washington, DC: U.S. Committee for Refugees, 2000), p. 1. For a synopsis of many other sources, see Robert Stumberg, "Preemption and Human Rights: Local Options After Crosby v. NFTC," Law and Policy in International Business 32 (Fall 2000): 163-169.
27. Letter from Sabrina Johnson, Levi Strauss Corporation, to C.B. Loeb, Franklin Research & Development (22 June 1992); National Labor Committee, "U.S. Retailers Increase Use of Sweatshops in Burma as Imports Soar," (Washington, DC: National Labor Committee, 2000), pp. 2-3; Barbara Victor, The Lady, Aung San Suu Kyi, Nobel Laureate and Burma's Prisoner (New York: Faber and Faber, 1998), pp. 19-20. Sources on human-rights violations by the government of Burma include U.S. Department of Labor, 2000 Update on Forced Labor and Forced Relocation (Washington, DC: U.S. Department of Labor, 2000), part VI(A)-(B); and U.S. Committee for Refugees, World Refugee Survey 2000: Country Report: Burma (Washington, DC: U.S. Committee for Refugees, 2000), p. 1. For a synopsis of many other sources, see Robert Stumberg, "Preemption and Human Rights: Local Options After Crosby v. NFTC," Law and Policy in International Business 32 (Fall 2000): 163-169.
28. See Kline, "Continuing Controversies Over Sate and Local Foreign Policy Sanctions," pp. 114, 116-118, 121-124; Kenneth A. Rodman, "Think Globally, Punish Locally," Ethics and International Affairs 12 (1998): 19.
29. See Kline, "Continuing Controversies Over Sate and Local Foreign Policy Sanctions," pp. 114, 116-118, 121-124; Kenneth A. Rodman, "Think Globally, Punish Locally," Ethics and International Affairs 12 (1998): 19.
30. Rodman, "Think Globally, Punish Locally," p. 27; Kenneth P. Lewis, "Dealing with South Africa: The Constitutionality of State and Local Divestment Legislation," Tulane Law Review 61 (February 1987): 471-475.
31. Rodman, "Think Globally, Punish Locally," p. 27; Kenneth P. Lewis, "Dealing with South Africa: The Constitutionality of State and Local Divestment Legislation," Tulane Law Review 61 (February 1987): 471-475.
32. See Kline, "Continuing Controversies Over State and Local Foreign Policy Sanctions," pp. 121-123; John Goshko, "Swiss Banks' Pact Ends NY Threat of Sanctions," Washington Post, 14 August 1998, p. A14.
33. See Kline, "Continuing Controversies Over State and Local Foreign Policy Sanctions," pp. 121-123; John Goshko, "Swiss Banks' Pact Ends NY Threat of Sanctions," Washington Post, 14 August 1998, p. A14.
34. See, for example, Dan Griswold, "Trade Sanctions & Selective Purchasing Laws," Burma Debate 6 (Summer 1999): 13, 15.
35. Rodman, "Think Globally, Punish Locally," pp. 23-26.
36. Investor Responsibility Research Center, Multinational Business in Burma (Myanmar) (Washington, DC: IRRC, 2000), appendix C.
37. Guay, "Local Government and Global Politics," p. 365. See Kline, "Continuing Controversies Over State and Local Foreign Policy Sanctions," pp. 120-121.
38. Guay, "Local Government and Global Politics," p. 365. See Kline, "Continuing Controversies Over State and Local Foreign Policy Sanctions," pp. 120-121.
39. Executive Order 13126, Federal Register 64 (12 June 1999): 32,383.
40. See Guay, "Local Government and Global Politics," p. 363; "The Mass that Roared: a State's Foreign Policy," Economist, 8 February 1997, p. 32.
41. See Guay, "Local Government and Global Politics," p. 363; "The Mass that Roared: a State's Foreign Policy," Economist, 8 February 1997, p. 32.
42. The search terms include "Massachusetts," "Burma" and "National Foreign Trade Council" after 30 April 1998, the date that the NFTC filed its complaint.
43. Foreign Operations, Export Financing, and Related Programs Appropriations Act, Pub. L. 104-208, � 570, 110 Stat. 3009-166 (1997) (hereafter "federal Burma sanctions"); Executive Order 13047, 3 CFR 202 (1997). Although the federal sanctions are the most advanced action taken by any country against Burma, they are quite limited. The federal sanctions grandfathered investments made prior to an effective date, enabling U.S. companies to get their resource investments in under the wire. The sanctions also excluded any performance or financing of a contract to sell or purchase goods, services, or technology. Thus, U.S. companies could still develop resources in Burma; they just had to find a partner who would own the land or enterprise, a role that the Burmese military was more than willing to fulfill.
44. See Comprehensive Anti-Apartheid Act of 1986, Pub. L. 99-440 (2 October 1986), 100 Stat. 1089.
45. Rodman, "Think Globally, Punish Locally," p. 32.
46. Ted Bardacke, "Burma Will Feel the Effects of Ban on New U.S. Investment," National Post, 30 April 1997, p. 17.
47. See Kincaid, "Constituent Diplomacy in Federal Polities and the Nation-State," p. 73; Kline, "Continuing Controversies Over State and Local Foreign Policy Sanctions," pp. 130-132; Hocking, Localizing Foreign Policy, pp. 69, 99, 204.
48. See Kincaid, "Constituent Diplomacy in Federal Polities and the Nation-State," p. 73; Kline, "Continuing Controversies Over State and Local Foreign Policy Sanctions," pp. 130-132; Hocking, Localizing Foreign Policy, pp. 69, 99, 204.
49. See Kincaid, "Constituent Diplomacy in Federal Polities and the Nation-State," p. 73; Kline, "Continuing Controversies Over State and Local Foreign Policy Sanctions," pp. 130-132; Hocking, Localizing Foreign Policy, pp. 69, 99, 204.
50. Fearing domestic consumer boycotts, multinational corporations did not challenge the anti-Apartheid boycotts in federal court, although Baltimore's divestment ordinance was challenged and upheld by the Maryland Court of Appeals. Board of Trustees v. Mayor & City Council of Baltimore, 562 A.2d 720 (Md. 1989), certiorari denied, 493 U.S. 1093 (1990).
51. Articles III, VI, and VIII, Agreement on Government Procurement, 15 April 1994, WTO Agreement, Annex 4, The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts (Geneva: GATT Secretariat, 1994), p. 438, I.L.M 33 (1994), p 44; available at http://www.wto.org/english/trapop_e/ gproc_e/ (including member nations). Correspondence from most governors is on file with the authors.
52. Articles III, VI, and VIII, Agreement on Government Procurement, 15 April 1994, WTO Agreement, Annex 4, The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts (Geneva: GATT Secretariat, 1994), p. 438, I.L.M 33 (1994), p 44; available at http://www.wto.org/english/trapop_e/ gproc_e/ (including member nations). Correspondence from most governors is on file with the authors.
53. Articles III, VI, and VIII, Agreement on Government Procurement, 15 April 1994, WTO Agreement, Annex 4, The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts (Geneva: GATT Secretariat, 1994), p. 438, I.L.M 33 (1994), p 44; available at http://www.wto.org/english/trapop_e/ gproc_e/ (including member nations). Correspondence from most governors is on file with the authors.
54. Letter from William Weld, Governor of Massachusetts, to Hon. Michael Kantor, U.S. Trade Representative (3 December 1993). ("My administration has no present intention of modifying [its procurement process] in a manner inconsistent with the Code's principles.") The letter is on file with the authors.
55. United States-Measures Affecting Alcoholic and Malt Beverages, Report of the Panel, GATT Doc. DS23/R (16 Macrh 1992).
56. See Joseph A. Wilson, "Section 102 of the Uruguay Round Agreements Act: 'Preserving' State Sovereignty," Minnesota Journal of Global Trade 6 (1997): 412-415; Christine T. Milliken, "Incorporating Principles of Domestic Federalism Within the Framework of the World Trade Organization," American Society of International Law Procedure 32 (1995): 329-331.
57. See Joseph A. Wilson, "Section 102 of the Uruguay Round Agreements Act: 'Preserving' State Sovereignty," Minnesota Journal of Global Trade 6 (1997): 412-415; Christine T. Milliken, "Incorporating Principles of Domestic Federalism Within the Framework of the World Trade Organization," American Society of International Law Procedure 32 (1995): 329-331.
58. See Uruguay Round Agreements Act of 1994, P.L. 103-465, � 102(b)(1), codified as 19 U.S.C. � 3512(b)(1))
59. See 19 U.S.C. �� 3512(b)(2)(A), 3512 (c)(1).
60. 19 U.S.C. � 3512(c)(2) (emphasis added).
61. See Statement of Administrative Action for the Uruguay Round Agreements Act (SAA), reprinted in 1994 U.S.C.C.A.N. 4440, p. 20. The SAA was enacted into law as part of the URAA. See 19 U.S.C.� 3511(a). The WTO implementing legislation provides that the SAA "shall be regarded as an authoritative expression by the United States concerning the interpretation and application of the Uruguay Round Agreements and this Act in any judicial proceeding in which a question arises concerning such interpretation or application." 19 U.S.C. � 3512(d).
62. See Milliken, "Incorporating Principles of Domestic Federalism Within the Framework of the World Trade Organization," p. 330.
63. See 19 U.S.C. �� 3512(b)(2), 3512 (c)(1).
64. United States v. Lopez, 115 S. Ct. 1624, 1638 (1995) (Justice Kennedy, concurring) (emphasis added), citing Federalist 46 and Federalist 51.
65. 505 U.S. 144,(1992).
66. Ibid., 168-169.
67. 117 S. Ct. 2365, 2377 (1997) (Justice Scalia, joined by Chief Justice Rehnquist and Justices O'Connor, Kennedy, and Thomas).
68. See ibid., 2377: "[b]y forcing state governments to absorb the financial burden of implementing a federal regulatory program, Members of Congress can take credit for 'solving' problems without having to ask their constituents to pay for the solutions with higher federal taxes. And even when the States are not forced to absorb the costs of implementing a federal program, they are still put in the position of taking the blame for its burdensomeness and for its defects ... Under the present law, for example, it will be the [local official] and not some federal official who stands between the gun purchaser and immediate possession of his gun. And it will likely be the [local official], not some federal official, who will be blamed for any error ... that causes a purchaser to be mistakenly rejected."
69. 527 U.S. 706 (1999) (Justice Kennedy, joined by Chief Justice Rehnquist and Justices O'Connor, Scalia, and Thomas).
70. See ibid. at 751: "When the Federal Government asserts authority over a State's most fundamental political processes, it strikes at the heart of the political accountability so essential to our liberty and Republican form of government."
71. See Printz v. United States, 521 U.S. 898, 956 (1997) (Justice Stevens, dissenting, joined by Justices Souter, Ginsburg and Breyer): "[t]he principal means chosen by the Framers to ensure the role of the States in the federal system lies in the structure of the Federal Government itself. It is no novelty to observe that the composition of the Federal Government was designed in large part to protect the States from overreaching by Congress. . . . Given the fact that the Members of Congress are elected by the people of the several States, with each State receiving an equivalent number of Senators in order to ensure that even the smallest States have a powerful voice in the legislature, it is quite unrealistic to assume that they will ignore the sovereignty concerns of their constituents."
72. See, for example, Seminole Tribe of Florida v. Florida, 517 U.S. 44, 183 (1996) (Justice Souter, dissenting, joined by Justices Ginsburg and Breyer): "The Court has repeatedly stated its assumption that insofar as the relative positions of States and Nation may be affected consistently with the Tenth Amendment, they would not be modified without deliberately expressed intent ... The plain-statement rule, which assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision is particularly appropriate in light of our primary reliance on '[t]he effectiveness of the federal political process in preserving the States' interests."
73. Morales v. Trans World Airline, 504 U.S. 374, 383 (1992).
74. Letter from EU Ambassador Hugo Paeman to Governor William Weld (23 January 1997); European Commission Demarche to the U.S. Department of State, reprinted in Inside U.S. Trade, 31 January 1997, p. 10.
75. European Commission Demarche, 13 June 2001; "EU to Request WTO Panel Ruling on Massachusetts Law," Inside U.S. Trade, 11 September 1998, p. 1.
76. See Government Procurement Agreement, art. XXII:3 [hereinafter GPA]; Understanding on Rules and Procedures Governing the Settlement of Disputes, art. 22. The sanctions, however, would be limited to the suspension of benefits that the United States would otherwise enjoy under the WTO's GPA; they would not include the authorization of retaliatory tariffs or the suspension of other benefits to which the United States is entitled as a member of the WTO. See GPA, art. XXII:7 ("any dispute arising under this Agreement shall not result in the suspension of concessions or other obligations under any other Agreement....").
77. See Government Procurement Agreement, art. XXII:3 [hereinafter GPA]; Understanding on Rules and Procedures Governing the Settlement of Disputes, art. 22. The sanctions, however, would be limited to the suspension of benefits that the United States would otherwise enjoy under the WTO's GPA; they would not include the authorization of retaliatory tariffs or the suspension of other benefits to which the United States is entitled as a member of the WTO. See GPA, art. XXII:7 ("any dispute arising under this Agreement shall not result in the suspension of concessions or other obligations under any other Agreement....").
78. National Foreign Trade Council v. Baker, 26 F. Supp.2d 287, 292 (D. Mass 1998): "Plaintiff must show that Congress intended to exercise its authority to set aside a state law. Plaintiff's burden is particularly heavy because Plaintiff argues implied, rather than express, preemption. Plaintiff has failed to carry this burden."
79. National Foreign Trade Council v Natsios, 181 F.3d 38 (1st Cir. 1999).
80. Zschernig v. Miller, 389 U.S. 429 (1986).
81. Ibid., 49-61 (foreign affairs power), 61-71 (commerce clause), 71-77 (preemption).
82. Justice Scalia, joined by Justice Thomas, wrote a separate opinion concurring in the judgment.
83. Crosby v NFTC, p. 2294, quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
84. Ibid., 2296.
85. Ibid., 2296-2298.
86. Ibid., 2298-2299.
87. Ibid., 2299-2300 and notes 16, 21, and 22.
88. Ibid., 2299-2300.
89. Ibid., 2300 n.19.
90. Ibid., 2302.
91. Ibid., 2302.
92. Ibid., 2301, n. 24.
93. Hines v. Davidowitz, 312 U.S. at 75 (Justice Stone, dissenting).
94. See Abbot v. American Cyanamid Co., 844 F.2d 1108, 1113 (4th Cir. 1988): "While preemption under a theory of express or implied preemption is essentially a matter of statutory construction, preemption under a frustration of federal purpose theory is more an exercise of policy choices by a court than strict statutory construction." See also Paul E. McGreal, "Some Rice with Your Chevron? Presumption and Deference in Regulatory Preemption," Case Western Reserve Law Review 45 (Spring 1995): 833: "That [obstacle preemption] requires a largely ad hoc policy analysis is evidenced by the Court's minimally helpful guidance."
95. We do not mean to suggest that, even in the absence of any evidence of congressional intent to preempt, a court may not legitimately find preemption when there is a conflict between federal and state law and a private parly can not comply with both. See Crosby, 120 S. Ct. at 2294, citing Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963). In such an instance, when a court must choose between conflicting state and federal rules, the supremacy clause requires that the federal rule prevail even if Congress never anticipated such a conflict.
96. For example, in Geirr v. Ameriam Honda Motor Co., 529 U.S. 861 (2000), the Court preempted a state common-law tort claim, which alleged that an automobile manufacturer was negligent in failing to equip a car with an air bag, as an obstacle to a federal regulatory scheme. For a comprehensive critique of obstacle-preemption doctrine, see Caleb Nelson, "Preemption," Virginia Law Review 86 (March 2000): 265-290.
97. The Court in Crosby did focus on what it determined to be Congress's intent regarding the general objectives of the federal Burma sanctions, but not the specific issue of whether Congress intended the federal sanctions to preempt state law (or state selective-purchasing laws in particular). This is a critical distinction if Congress is to be held accountable for deciding whether to preempt state law. As noted by the Senate Committee on Governmental Affairs, courts applying obstacle-preemption doctrine "tend to focus on the effect of state law on the operation of the federal scheme rather than on the intent of Congress to displace state authority. Courts may state that they analyze congressional intent but then focus on the general purpose of the federal statute at issue instead of the specific intent to displace state law." Report of the Committee on Governmental Affairs of the United States Senate on S. 1214, The Federalism Accountability Act of 1999 at 9 (106th Cong. 1st Sess.) (Report 106-159).
98. In his concurring opinion, Scalia faulted the Court for quoting members of Congress who spoke to the importance of flexible federal sanctions: "the statements were addressed only to flexibility in administering the sanctions of the federal Act, and said nothing at all about state sanctions." Crosby v. NFTC, p. 2303.
99. Crosby v. NFTC, p. 2299.
100. 50 U.S.C. � 1701 et seq. (1994).
101. See Brief of Members of Congress, Amici Curiae, in Support of Petitioners [Massachusetts] and for Reversal, filed in No. 99-474 (13 January 2000).
102. Carlos Vazquez, "Whither Zscherning," unpublished manuscript (June 2001), p. 12 (on file with the authors), forthcoming in Villanova Law Review (2001).
103. Carlos Vazquez, "Whither Zscherning," unpublished manuscript (June 2001), p. 12 (on file with the authors), forthcoming in Villanova Law Review (2001).
104. See, for example, Nelson, "Preemption," p. 86; Betsy J. Grey, "Make Congress Speak Clearly: Federal Preemption of State Tort Remedies," Boston University Law Review 77 (June 1997): 559; S. Candice Hoke, "Preemption Pathologies and Civic Republican Values," Boston University Law Review 71 (November 1991): 687.
105. See, for example, Nelson, "Preemption," p. 86; Betsy J. Grey, "Make Congress Speak Clearly: Federal Preemption of State Tort Remedies," Boston University Law Review 77 (June 1997): 559; S. Candice Hoke, "Preemption Pathologies and Civic Republican Values," Boston University Law Review 71 (November 1991): 687.
106. See, for example, Nelson, "Preemption," p. 86; Betsy J. Grey, "Make Congress Speak Clearly: Federal Preemption of State Tort Remedies," Boston University Law Review 77 (June 1997): 559; S. Candice Hoke, "Preemption Pathologies and Civic Republican Values," Boston University Law Review 71 (November 1991): 687.
107. Vazquez, "Whither Zschernig," p. 12.
108. Program on International Policy Attitudes, Americans on Globalization: A Study of U.S. Public Attitudes (28 March 2000), parts 2 (introduction) and 2D (trade sanctions), available at http://www.pipa.org/ onlinereports/globalization.
109. Brief of Members of Congress supporting Massachusetts, pp. 7-9.
110. See Statement of Senator Edward Kenedy, 132 Cong. Rec. S23291 (15 September 1986).
111. See 132 Cong. Rec H6758-03, H6768-05 (12 September 1986). The resolution stated: "It is not the intent of the House of Representatives that the [federal anti-Apartheid law] limit, preempt, or affect, in any fashion, the authority of any state or local government...to restrict or otherwise regulate any financial or commercial activity respecting South Africa." H.R. Res. 548 and 549, 99 Cong., 2d Sess. (1986).
112. See Comprehensive Anti-Apartheid Act of 1986, Pub. L. 99-440, October 2, 1986, 100 Stat. 1089, � 606; Dire Emergency Supplemental Appropriations and Transfers, Urgent Supplementals, and Correcting Enrollment Errors Act of 1989, Pub. L. 101-45, June 30, 1989, 103 Stat. 97 (undesignated paragraph entitled "State and Local Anti-Apartheid Policies")
113. See Board of Trustees v. Mayor and City Council of Baltimore, 317 Md. 72, 117 n.45, 562 A.2d 720, 742 n.45 (1989), cert. denied, 493 U.S. 1093 (1990).
114. See South African Democratic Transition Support Act, Pub. L. 103-149, 23 November 1993, 107 Stat. 1503, �4(c)(1).
115. Crosby v. NFTC, p. 2291.
116. 111 F.3d at 77.
117. See Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, � 570, 110 Stat. 3009-166 through 3009-167 (� 570) (1996).
118. See 145 Congressional Record H7368-73 (5 August 1999); 144 Cong. Rec. E1631-03 (7 August 1998); 144 Cong. Rec. H7262-02, H7278, H7279, H7280-85 (6 August 1998).
119. See H.R. 1244, 106th Cong., 1st Sess. (1999); S. 757, 106th Cong., 1st Sess. (1999); H.R. 2708, 105th Cong., 2d Sess. (1997); S. 1413, 105th Cong., 1st Sess. (1997).
120. See Hon. Lee H. Hamilton of Indiana, Introduction of the Sanctions Reform Act, H.R. 2708, 143 Cong. Rec. E2080 (23 October 1997); ". . . roughly 20 States and localities have adopted laws prohibiting government commercial dealings with United States or foreign companies that do business with countries that have poor human rigths records.... [S]ome of [these] state and local sanctions raise difficult questions concerning the constitutional authority to conduct U.S. trade and foreign policy." See also 144 Cong. Rec. E1291-03, E1292 (1998) (statement of Representative Hamilton); 144 Cong. Rec. S8165-01, S8186 (1998) (statement of Senator Lugar).
121. See 145 Cong. Rec. S3457-01, S3504 (1999) (statement of Senator Lugar); 143 Cong. Rec. S11964-02, S11999 (1997) (statement of Senator Lugar).
122. See Debate on the Sanctions Reform Act, 144 Cong. Rec. H2342-02, H2344-46 (April 28, 1998).
123. See Brief of Amici Curiae Members of Congress in Support of Respondent [NFTC] and for Affirmance, filed in No. 99-474 (February 14, 2000), p. 27.
124. Brief of Members of Congress supporting Massachusetts, pp. 3-5.
125. Crosby v. NFTC, pp. 2294, n. 7; Wisconsin Department of Industry, Labor & Human Relations v. Gould, 475 U.S. 282 (1986); see Price, Hannah and Carlson, "Crosby v. NFTC and the Future of State and Local Sanctions," pp. 42-43 (concluding that Crosby makes clear that judicial deference to market participation applies to federal power under the interstate commerce clause, but not to foreign commerce or foreign affairs powers).
126. Crosby v. NFTC, pp. 2294, n. 7; Wisconsin Department of Industry, Labor & Human Relations v. Gould, 475 U.S. 282 (1986); see Price, Hannah and Carlson, "Crosby v. NFTC and the Future of State and Local Sanctions," pp. 42-43 (concluding that Crosby makes clear that judicial deference to market participation applies to federal power under the interstate commerce clause, but not to foreign commerce or foreign affairs powers).
127. White v. Massachusetts, 460 U.S. 204, 207 n.3 (1983) (citations omitted). The status of market-participation measures under the dormant commerce clause is relevant to the analysis of such measures under implied preemption doctrine. Both inquiries require a court to decide whether, in the absence of a congressional statement of intent to preempt, to strike down a state law in order to prevent it from encroaching on an area of federal legislative authority.
128. 98 507 U.S. 218 (1993).
129. Ibid., 220-222.
130. Ibid., 231-232 (emphasis added).
131. Vazquez, "Whither Zschernig," p. 17.
132. The Massachusetts procurement budget is approximately $2 billion annually. Levi Strauss reported $3.930 billion (1995) and Liz Claiborne reported $1.709 billion in cost of goods (1999). No. 99-474. Brief for Respondent National Foreign Trade Council, filed in No. 99-474 (14 February 2000), p. 3; Levi Strauss Associates, Inc. and Subsidiaries, Consolidated Statements of Income, Year Ended 26 November 1995, available at http://www.sec.gov/Archives/edgar/data/778977/0000950109-96-000941.txt (viewed on 3 March 2000); Liz Claiborne Inc., Consolidated Statements of Income, Twelve Months Ended 1 January 2000, available at http://www.lizclaiborne.com/lizinc/corporate/forthq99content.asp. (viewed on 3 March 2000).
133. The Massachusetts procurement budget is approximately $2 billion annually. Levi Strauss reported $3.930 billion (1995) and Liz Claiborne reported $1.709 billion in cost of goods (1999). No. 99-474. Brief for Respondent National Foreign Trade Council, filed in No. 99-474 (14 February 2000), p. 3; Levi Strauss Associates, Inc. and Subsidiaries, Consolidated Statements of Income, Year Ended 26 November 1995, available at http://www.sec.gov/Archives/edgar/data/778977/0000950109-96-000941.txt (viewed on 3 March 2000); Liz Claiborne Inc., Consolidated Statements of Income, Twelve Months Ended 1 January 2000, available at http://www.lizclaiborne.com/lizinc/corporate/forthq99content.asp. (viewed on 3 March 2000).
134. Mark Tushnet, "Globalization and Federalism in a Post-Printz World," Tulsa Law Journal 36 (Fall 2000): 27-37.
135. 521 U.S. 898 (1997).
136. IbId., 932. The Court has declined at least one opportunity to clarify the status of laws that target states with regulations that do not apply to private parties engaged in comparable activities. In Reno v. Condon, 528 U.S. 141 (2000), the Court rejected the argument that the Driver's Privacy Protection Act violated the general applicability requirement by prohibiting states from releasing a driver's personal information without the driver's consent. The Court avoided the issue by concluding that the law was generally applicable because it applied to both "the States as initial suppliers of the information in interstate commerce and private resellers or redisclosers of that information in commerce." Ibid., 151.
137. Crosby v. NFTC, p. 2294 n.8.
138. See NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (civil rights boycott of white merchants held to be protected political activity under the First Amendment).
139. See generally, Matthew C. Porterfield, "State and Local Foreign Policy Initiatives and Free Speech: The First Amendment as an Instrument of Federalism," Stanford Journal of International Law 35 (1999): 40-42.
140. The Supreme Court has taken a similar approach to interpreting the preclusive effect of the National Labor Relations Act on labor boycotts, holding that the act bans secondary boycotts, while construing it to permit primary boycotts in order to avoid an interpretation that might conflict with the First Amendment See Stumberg, "Preemption and Human Rights: Local Options After Crosby v. NFTC," 141-147.
141. See Federalism Accountability Act of 1999 � 6(a), S. 1214, 106th Cong. (1999). The act would have also permitted a finding of preemption in instances in which there was "a direct conflict between [a federal] statute and a State or local law, ordinance, or regulation so that the two cannot be reconciled or consistently stand together." Ibid., � 6(a)(2).
142. See John H. Jackson, "The Great 1994 Sovereignty Debate: United States Acceptance and Implementation of the Uruguay Round Results," Columbia Journal of Transnational Law 36 (1997): 157.
143. Statement of Administrative Action, p. 20.
144. The SAA identifies commerce clause claims as examples of how trade rules could be used indirectly to challenge state law. Presumably, this reference was included because state officials had expressed concern that trade disputes could be used as evidence that a state or local government interfered with foreign commerce in violation of the dormant commerce clause. See Milliken, "Incorporating Principles of Domestic Federalism Within the Framework of the World Trade Organization," p. 330 (noting that the potential use of trade disputes in support of foreign commerce clause claims was a matter of concern to state officials.)
145. Brief for the United States as Amicus Curiae Supporting Affirmance, filed in No. 99-474 (February 2000).
146. Corsby v. NFTC, p. 2288, 2301 n. 24.
147. Ibid. Both the district court and the court of appeals similarly relied on the trade complaints in striking down the Massachusetts law. See NFTC v. Natsios, 181 F.3d at 54 (1st Cir. 1999); NFTC v. Baker, 26 F.Supp. 2d at 291 (D. Mass. 1998).
148. See European Commission, Report on United States Barriers to Trade and Investment-1999 (Brussels: EC, April 1999).
149. See William Greider, "Sovereign Corporations," The Nation, 30 April 2001, accessed on Westlaw at 2001 WL 2132520; Bill Bishop, "Free Trade on path to clash with state laws-States slowly seeing how global agreements can be a threat to state sovereignty," Austin American Statesman, 3 June 2001, accessed on Westlaw at 2001 WL 4580131.
150. See William Greider, "Sovereign Corporations," The Nation, 30 April 2001, accessed on Westlaw at 2001 WL 2132520; Bill Bishop, "Free Trade on path to clash with state laws-States slowly seeing how global agreements can be a threat to state sovereignty," Austin American Statesman, 3 June 2001, accessed on Westlaw at 2001 WL 4580131.
151. Brannon P. Denning and Jack H. McCall, "International Decisions-Crosby v. National Foreign Trade Council," American Journal of International Law 94 (October 2000): 754.
152. Jack L. Goldsmith, "State Foreign Policies After the Burma Case," Writ, available at http:// writ.findlaw.com/commentary/20000626_goldsmith.html(visited June 2000).
153. Price, Hannah, and Carlson, "Crosby v. NFTC and the Future of State and Local Sanctions," p. 40; see Miami Light Project v. Miami-Dade County, 97 F.Supp. 2d 1174 (S.D. Fla. 2000); Gerling Global Reinsurance Corporation v. Quackenbush, No. Civ. S-00-0506WBSJFM, 2000 WL 777978 (E.D. Cal. 2000).
154. Ibid., p. 45; Vazquez, "Wither Zschernig," p. 47 (arguing that Crosby is a foreign affairs power decision in disguise).
155. Ibid., p. 45; Vazquez, "Wither Zschernig," p. 47 (arguing that Crosby is a foreign affairs power decision in disguise).
156. Vazquez, "Wither Zschernig," pp. 15-16, 36; Kincaid, "Constituent Diplomacy in Federal Polities and the Nation-state," p. 66.
157. Vazquez, "Wither Zschernig," pp. 15-16, 36; Kincaid, "Constituent Diplomacy in Federal Polities and the Nation-state," p. 66.
158. Thomas A. Barnico, "The Road from Burma: State Boycotts After Crosby v. National Foreign Trade Council," Boston University International Law Journal 19 (Spring 2001): 101-109.
159. See Guay, "Local Government and Global Politics," p. 376; Earl H. Fry, The Expanding Role of State and Local Governments in U.S. Foreign Affairs (New York: Council on Foreign Relations Press, 1998).
160. See Guay, "Local Government and Global Politics," p. 376; Earl H. Fry, The Expanding Role of State and Local Governments in U.S. Foreign Affairs (New York: Council on Foreign Relations Press, 1998).
161. See Stumberg, "Preemption and Human Rights," p. 127 (local options after Crosby); Denning and McCall, "International Decisions-Crosby v. National Foreign Trade Council," p. 754.
162. See Stumberg, "Preemption and Human Rights," p. 127 (local options after Crosby); Denning and McCall, "International Decisions-Crosby v. National Foreign Trade Council," p. 754.