RE- State Detects Sanction Laws (r)

[dohrs@xxxxxxxxxxxxxxxx]

January 20, 1998
[1300 words]
>From Los Angeles Daily Journal, February 1998

LOCAL "FOREIGN POLICY" LAWS LIKELY TO BE UPHELD

by Robert W. Benson
Professor of Law, Loyola Law School, Los Angeles



        Los Angeles City Councilman Richard Alarcón has introduced a motion
in the Council recounting human rights horrors by the military regime in
Burma.  The motion calls for consideration of an ordinance that would
forbid the city to purchase goods from companies doing business in that
southeast Asian nation also known as Myanmar.   Alarcón's motion is in the
tradition of the 1986 Los Angeles law that withheld city purchases from
companies doing business with the apartheid regime in South Africa as well
as a 1993 law that prohibits city business with companies adhering to the
Arab boycott of Israel.  If it passes, Los Angeles will be the 19th local
government to enact such a law on Burma, joining New York City, San
Francisco, Oakland, Santa Monica and the Commonwealth of Massachusetts,
among others.


        Is such a law constitutional?

        A nationwide corporate lobbying group called USA-Engage argues that
all such laws are attempts by state and local governments to have their own
foreign policies in violation of the U.S. Constitution which reserves
foreign affairs to the federal government.   Legal  analysis of such an
issue requires a review of the case precedents, scholarly articles, and
American political history.  That review reveals that the U.S. Supreme
Court has never spoken clearly on the issue, that scholarly opinion is
evenly divided, and that in practice states and major cities have had their
own foreign policies since colonial times and continue to do so today.
Weighing all  factors, it is unlikely that the U.S. Supreme Court would
announce a new rule striking down local laws such as those on Burma. There
is some chance that the Court would endorse such laws as protected by the
First Amendment and as consistent with its more recent notions of local
powers in the federalist system.  The most likely scenario, however, is
that the Court will not be eager to speak on this issue and,  if it does,
will not speak clearly.


  U.S. Supreme Court doctrine

        The issue implicates five major constitutional doctrines, each with
its own line of case authority and internal analysis.

        1)  Federal preemption: To strike down a local Burma law, litigants
would have to show that Congress and the President have either
intentionally preempted such laws by some explicit federal law or they have
implicitly preempted local laws by enacting a conflicting or comprehensive
federal scheme of regulation. As of this date, Congress has enacted no
explicit preemption, and policies of the President, the State Department
and the Congress can be read to be congruent and even supportive of local
government sanctions against Burma.

         2)  Federal supremacy over foreign affairs: The Court has
occasionally said that the federal government has "exclusive" power over
foreign affairs, but in practice local governments have extensive
concurrent involvement. There are only a few old precedents discussing when
this involvement is impermissible, and they are inconsistent.

         3)  Burdens on foreign commerce: Under the  so-called "dormant
commerce clause,"   local regulations on foreign as well as interstate
commerce are prohibited if on balance they are too burdensome. There is no
clear guidance on how to balance.  Also, there is an exception when local
governments act as "market participants" (e.g., purchasing goods and
services) instead of as regulators. But it is undecided whether the market
participant exception applies to foreign as opposed to interstate commerce.


         4) First Amendment:  Laws like those in question have been
principal channels of political expression from the colonial Stamp Act
Boycotts to modern laws condemning apartheid in South Africa. While the
Court has not clearly faced the question, it is possible that the First
Amendment shields such local laws from congressional or executive branch
interference.

        5) Federalism :  Breaking with the legacy of the New Deal, the
current Court has frequently tipped the balance of federal and local power
toward the local, a fact which could favor upholding of local laws such as
those on Burma.


        Of the more than 140 state and local laws restricting business with
South Africa during the apartheid years,  only three were litigated.  Two
decisions struck down the laws on unique state law grounds. Fenton, The
Fallacy of Federalism in Foreign Affairs: State and Local Foreign Policy
Trade Restrictions, 13 Northwestern Journal of International Law and
Business 563, note 4 (1993).   The one decision that dealt with the U.S.
Constitution was written by the highest court in Maryland, which found that
the law in question was constitutional. Board of Trustees v. Mayor and City
Council of Baltimore, 562 A. 2d 720 (1989).  The U.S. Supreme Court
declined to review the case.  493 U.S. 1093 (1990).


 Legal scholarship

        The widespread enactment of state and local laws on business with
South Africa in the 1980s stimulated a flurry of legal scholarship.  Now
Burma is starting to enter the scholarly stream. The scholars are divided.
A leading constitutional law scholar, Professor Laurence Tribe of Harvard,
opines that local laws on South Africa were not preempted by federal
legislation on the topic, and were protected by the market participant
doctrine.  Tribe, American Constitutional  Law 469, 480 n. 12 (2d ed.
1988).

         For other scholarship supporting the constitutionality of such
local laws, see Jubinsky, State and Municipal Governments React Against
South African Apartheid: An Assessment of the Constitutionality of the
Divestment Campaign, 54 U. Cincinnati Law Review 543 (1985); Lewis, Dealing
With South Africa: The Constitutionality of State and Local Divestment
Legislation, 61 Tulane Law Review 469 (1987); McArdle, In Defense of State
and Local Government Anti-Apartheid Measures: Infusing Democratic Values
Into Foreign Policymaking, 62 Temple Law Review 813 (1989); Berat, Undoing
and Redoing Business in South Africa: The Lifting of the Comprehensive
Anti-Apartheid Act of 1986 and the Continuing Validity of State and Local
Anti-Apartheid Legislation , 6 Connecticut Journal of International Law 7
(1990).

        For scholarship arguing that such laws are unconstitutional, see
Note, The Constitutionality of State and Local Governments' Response to
Apartheid:  Divestment Legislation, 13 Fordham Urban Law Journal 763
(1985); Spiro, State and Local Anti-South Africa Action As An Intrusion
Upon The Federal Power In Foreign  Affairs, 72 Virginia Law Review 813
(1986); Fenton, The Fallacy of Federalism in Foreign Affairs: State and
Local Foreign Policy Trade Restrictions, 13 Northwestern Journal of
International Law and Business 563 (1993); Schmahmann and Finch, The
Unconstitutionality of State and Local Enactments in The United Sates
Restricting Business Ties With Burma (Myanmar), 30 Vanderbilt Journal of
Transnational Law 175 (1997).


  Practice

        In practice, state and local governments have been involved in
foreign affairs at least since 1798 when the city of Boston raised $125,000
to build two battleships in preparation for a U.S. war with France.  Most
states and major cities promote a foreign policy of trade through an
international trade or tourism office, some located overseas.   Border
states and communities have long had official agreements with Canada and
Mexico regarding roads, electricity, water, autos, fire, police and other
matters. In recent years, some 900 local governments enacted nuclear freeze
resolutions, 140 passed laws on South Africa, hundreds formed sister-city
relationships with communities abroad, and scores approved legislative
actions relating to such issues as depletion of the global ozone layer, the
Arab boycott of Israel, and war, peace and human rights in Nicaragua, El
Salvador, Guatemala, China, the former Soviet Union, Northern Ireland,
Poland, Sri Lanka, Libya and other nations.See Schuman, Dateline Main
Street: Local Foreign Policies,  65 Foreign Policy 154 (1986-87); Schuman,
Dateline Main Street: Courts v. Local Foreign Policies, 86 Foreign Policy
158 (1992).


 Conclusion

        Given the ambiguity of Supreme Court doctrine, the disagreement
among legal scholars, and the long-standing practice of local government
involvement in foreign affairs, it appears unlikely that the courts would
strike down local Burma laws as unconstitutional.

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