In today's New York Times :LIMITING

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Subject: In today's New York Times :LIMITING A STATE'S SPHERE OF INFLUENCE



Limiting a State's Sphere of Influence
New York Times; New York; Nov 15, 1998; Carey Goldberg; 

Edition: 
          Late Edition (East Coast)
Start Page: 
          22
ISSN: 
          03624331
Dateline: 
          BOSTON, Nov. 14

Abstract:
But to a Federal district judge here, a state-level move by Massachusetts to
tilt at human
rights abuses in Myanmar, formerly Burma, seemed not sweetly quixotic but
downright
unconstitutional.

The judge, Joseph L. Tauro, ruled late last week that the Massachusetts
Burma Law, which
largely bars the state government from doing business with companies that
trade with
Myanmar, infringed on the Federal Government's exclusive control of American
foreign policy.
He is expected to issue an order telling Massachusetts exactly what to do
about the law next
week.

That decision, and the announcement this week that Massachusetts would
appeal, set the
stage for a legal battle that experts say could ultimately reach the United
States Supreme
Court and affect all such local sanctions -- from New York City's recent
moves to shun Swiss
banks unless they made restitution to Holocaust survivors, to Los Angeles's
current
consideration of whether to pass a Burma law of its own.

Full Text:
Copyright New York Times Company Nov 15, 1998


To some, it may smack of flower-power idealism that in recent years two
dozen American cities have
passed sanctions against foreign countries, roaring like local mice against
the ruling regime of Nigeria or
political repression in Tibet.

But to a Federal district judge here, a state-level move by Massachusetts to
tilt at human rights abuses in
Myanmar, formerly Burma, seemed not sweetly quixotic but downright
unconstitutional.

The judge, Joseph L. Tauro, ruled late last week that the Massachusetts
Burma Law, which largely bars
the state government from doing business with companies that trade with
Myanmar, infringed on the
Federal Government's exclusive control of American foreign policy. He is
expected to issue an order telling
Massachusetts exactly what to do about the law next week.

''State interests, no matter how noble, do not trump the Federal
Government's exclusive foreign affairs
power,'' Judge Tauro wrote.

That decision, and the announcement this week that Massachusetts would
appeal, set the stage for a legal
battle that experts say could ultimately reach the United States Supreme
Court and affect all such local
sanctions -- from New York City's recent moves to shun Swiss banks unless
they made restitution to
Holocaust survivors, to Los Angeles's current consideration of whether to
pass a Burma law of its own.

At stake, advocates of such down-home involvement in foreign affairs say, is
the kind of groundswell for
divestment and sanctions that many believe helped end the South African
system of racial separation. If
such a ruling had come out a decade ago, said State Representative Byron
Rushing, who sponsored the
Massachusetts law, ''Nelson Mandela might still be in prison today.''

Furthermore, Thomas A. Barnico, the Assistant Attorney General handling the
case for Massachusetts,
said: ''Our law is consistent with U.S. policy and second, our law isn't the
conduct of foreign relations, it's
the conduct of our own purchasing. We have a right to decide with whom we'll
do business.''

But opponents argue that local sanctions not only violate the Constitution,
but also fail to influence the
countries they target. They say the sanctions' main effects are to hurt the
ability of American businesses to
compete abroad and to complicate the State Department's job.

''None of our companies, and certainly nor we, in any way apologize for the
way the Government of
Burma operates,'' said Frank Kittredge, president of the National Foreign
Trade Council, the lobbying
group that successfully challenged the Massachusetts law. ''Nobody argues
with the purpose or objective.
We just argue with the means of accomplishing it, and we feel so strongly
that these international sanctions
do not work.''

In this global-market era, the opponents to local sanctions also include
foreign governments, which
complain that the sanctions violate international free-trade pacts signed by
the United States. The
European Union filed a brief opposing the Massachusetts law in Federal
court, and the European Union
and Japan have brought a complaint about it to the World Trade Organization.

The law that touched off all this local-state-Federal-international fuss was
passed by the State Legislature
in 1996, making Massachusetts the only state with such an anti-Burma
sanction. (A similar measure is
pending in the New York State Legislature, however, and New York City
already has one.)

Called a selective purchasing law, it required the state government to
refrain from buying from companies
that did business with Myanmar, unless bids from those companies were at
least 10 percent cheaper than
the closest comparable bids.

The prospect of losing business with the state appears to have influenced
some companies to pull out of
Myanmar, Representative Rushing said -- at least, he added, Apple Computer
said as much when it left.
But Mr. Rushing said he did not know of any case in which the state had
actually rejected a bid from a
vendor with ties to Myanmar.

The military regime in Myanmar has violently repressed dissent, and human
rights monitors accuse it of
practicing torture, perpetuating slavery and trafficking in drugs.

While divestment was the main local sanction applied against South Africa in
the anti-apartheid movement,
selective purchasing laws and ordinances now predominate in the movement to
pressure Myanmar.

According to a list maintained by the National Foreign Trade Council, cities
from Berkeley, Calif., to
Boulder, Colo., to Takoma Park, Md., and Cambridge, Mass. -- more than 20 in
all -- have passed such
selective purchasing measures against Myanmar.

That is their right, argued Robert Stumberg, a professor of law at
Georgetown University Law Center who
advises the Free Burma Coalition, an umbrella group modeled after the
anti-apartheid movement.

''It's a core principle of democracy that the Federal Government should not
intrude on state powers to
spend local tax dollars unless there's an overwhelming Federal interest at
stake,'' Mr. Stumberg said.
''Neither the text of the Constitution nor the politics of the situation
reaches that level, and we think the
Supreme Court will agree with us.''

Mr. Stumberg and other defenders of the Massachusetts law say they also have
an important legal
precedent to lean on: a decision by Maryland's highest court in 1989 that
the City of Baltimore had the
right to pass a statute that withdrew its investments from South Africa.

But Judge Tauro, in his decision, wrote that the Baltimore case did not
apply because the city was seeking
only to modify its own investment practices. Baltimore did not ''seek to
influence individuals or companies
in their private commercial activities,'' he said. He also cited a 1937
Supreme Court decision saying that
power over international affairs ''cannot be subject to any curtailment or
interference on the part of the
several states.''

In the end, Judge Tauro wrote: ''Massachusetts' concern for the welfare of
the people of Myanmar, as
manifested by this legislative enactment, may well be regarded as admirable.
But, under the exclusive
foreign affairs doctrine, the proper forum to raise such concerns is the
United States Congress.''

In fact, Congress and President Clinton have spoken on Myanmar. Mr. Clinton
issued an executive order
in 1997 barring new American investment in Myanmar, and Congress has backed
similar sanctions.

But that seems only to give more ammunition to both sides. Opponents of the
Massachusetts law say it is
pre-empted by Congress; supporters say that since Congress did not nullify
the law, it should stand.

On one thing, both sides agree. No such concerted challenge ever arose to
the local pushes for divestment
from South Africa, as college after college and city after city voted to
divest. That could be because the
Myanmar cause has less popular support, some say. Or it could be because the
Government has signed
more free-trade agreements since then, obligating states and cities to keep
their barriers down as well.