State and local sanctions conflict with three major constitutional principles. The first and most obvious problem is that they violate federal supremacy in making foreign policy. The U.S. Supreme Court has ruled consistently that our constitutional system of government “requires that federal power in the field affecting foreign relations be left entirely free from local interference.” By explicitly attempting to make foreign policy, state and local sanctions infringe on this exclusive federal power.
Second, state and local selective purchasing laws are inconsistent with the Commerce Clause, which grants Congress the power to regulate commerce with foreign nations. The clause has been interpreted by the Supreme Court to forbid states and localities from, among other things, creating “discriminations favorable or adverse to commerce with particular foreign nations.” States and localities that enact sanctions are not merely “market participants”; they seek to influence commerce with foreign nations.
Finally, state and local sanctions against Burma collide with federal law, in violation of the Constitution’s Supremacy Clause. Article VI, Clause 2, forbids state and local laws that contradict federal laws in matters where the federal government has authority to act. Congress has rejected proposals to ban trade with Burma or force divestiture of existing investments there. Yet selective purchasing laws seek to impose just such a policy on U.S. companies.
State and local legislatures across the country have decided to punish the regime in Burma by discriminating against companies that do business there.1 At latest count, the state of Massachusetts and 20 local units of government, including New York City and San Francisco, have enacted “selective purchasing” laws aimed at Burma.2 Those laws bar any state or local contracts with companies that invest in or trade with the targeted country.
Such initiatives, when adopted, amount to a series of secondary boycotts (a boycott not of one’s primary target, but of those that do business with it). These initiatives are intended to exert whatever influence legislatures and councils have–and in the case of states and larger cities this can be considerable–to influence foreign affairs. This local policymaking is, however, unconstitutional because it impinges on the constitutional powers of the federal government. Until recently, though, there have been no cases challenging such initiatives and–before a law journal article we published last year–no critical analysis in the literature.3
Until successfully challenged, state and local boycotts of those who do business in Burma are presumptively valid and, as such, wield considerable influence. Major companies have left Burma, citing the Massachusetts and local laws as their reason. Others have evaluated their business opportunities in Burma and decided that it made more sense to leave, or not to enter, rather than face the loss of state and local business. If such local attempts to restrict foreign commerce and conduct foreign policy are indeed unconstitutional, their unchallenged run should be cause for great concern.
Local campaigns designed to influence foreign events are of relatively recent origin, but their attractiveness to activists is apparent. They offer a high‐profile opportunity to draw attention to a cause, with minimal political risk, and at no evident local economic cost. The first such campaign was against South Africa and began in Berkeley, California (which was also the first city to pass an anti‐Burma ordinance). The vogue also swept cities and towns into aiding the Sandinistas in Nicaragua, providing sanctuary to Guatemalan and Salvadoran refugees, and demanding cuts in the Pentagon budget. Massachusetts has a law targeting companies that do business with the British Army–because of problems in Northern Ireland–and is currently considering an anti‐Indonesia law because of human rights violations in East Timor. At least 10 cities have offices of international affairs, in essence, municipal state departments.
Until recently, this local activism has gone unchallenged in court. In April 1998, the National Foreign Trade Council filed suit in U.S. District Court in Boston challenging the constitutionality of Massachusetts’ two‐year‐old selective purchasing law against Burma. That it took so long to bring state and local sanctions to court should not be surprising. It would have been a brave company or business association that distinguished itself by seeking to derail a community’s outrage at apartheid, and there are similar risks to challenging laws that target Burma’s regime. Local activism exploits this reluctance by business to challenge these local laws because the challenge itself could easily be distorted to imply support for a particular foreign government.
The issue here, though, is not the character of the Burmese regime. The issue, rather, is whether localities can create a patchwork of local foreign policies that befuddle our national approach and disrupt the allocation of power in our constitutional scheme. That is precisely what the local laws do. From that fact flow three lines of constitutional analysis, any one of which would probably suffice to strike down these laws as unconstitutional.
An Intrusion into Foreign Policy
The first and most obvious problem with state and local anti‐Burma laws is that they ignore the balance between state and federal power struck by the Framers in the Constitution. In domestic matters, the Framers granted only narrow, enumerated powers to the federal government, and reserved the rest to the states and the people. With respect to foreign affairs, however, the situation is reversed: the Constitution gives the federal government broad authority, and imposes strict prohibitions on the states.4
Accordingly, the Supreme Court has repeatedly held that foreign affairs are exclusively a federal domain: