When a British-born investment analyst met a Massachusetts state legislator
at a news conference seven years ago to mark the end of sanctions on
companies doing business in South Africa, they didn't expect to set off a
battle over the constitutional limits of state governments and the making
of U.S. foreign policy.
Simon Billenness, an analyst at an asset management firm for people who
want to make socially responsible investments, asked state Rep. Byron
Rushing whether he wanted to set his sights on a new target: the military
junta in Burma. Rushing, a former community organizer and Harvard graduate
who had become involved in anti-apartheid movement because of his African
American heritage, said he didn't know much about Burma. Billenness said he
would stop by.
Tearing a page from the anti-apartheid movement, the two drew up
legislation that penalized companies with ties to Burma when those firms
competed for Massachusetts state contracts. Using the draft of an
anti-apartheid bill, they crossed out South Africa and inserted Burma. Two
years later, the measure became law.
Yesterday, as "Free Burma" protesters marched outside, the Supreme Court
heard oral arguments in a case brought by the National Foreign Trade
Council, which charged the Massachusetts government with usurping the
foreign policymaking power of Congress and the executive branch.
The Clinton administration, though it signed a different set of Burma trade
restrictions just three months after the Massachusetts law, backed the
trade group. Solicitor General Seth Waxman said yesterday that
Massachusetts had created a "considerable source of irritation with our
allies." He said that "instead of our conversations revolving around what
to do about Burma, our conversations are revolving around what to do about
Attorney Thomas A. Barnico, representing Massachusetts, argued that the
state has the same right as any consumer to make its own choices in the
marketplace and express itself by "disassociating the state" and
withholding "tax funds from the indirect support of brutal regimes abroad."
The case has attracted broad interest. The European Union and Japan have
accused Massachusetts of violating World Trade Organization rules that
prohibit discrimination in purchases by governments. Former president
Gerald R. Ford and 27 former Cabinet members from Republican and Democratic
administrations also filed a brief that said state and local trade
sanctions "confuse foreign countries" by "diluting the uniformity and
clarity of the nation's position."
The case has divided members of Congress, pitting Sen. Edward M. Kennedy
(D-Mass.) and other leading liberal Democrats against Sen. Dianne Feinstein
(D-Calif.), Sen. Richard G. Lugar (R-Ind.), Rep. Doug Bereuter (R-Neb.) and
others in opposing briefs to the Supreme Court.
Although Kennedy usually doesn't favor states' rights as a guideline in
other areas, the group he joined argued that the Massachusetts Burma law
was within the state's powers under the federal system.
Supporters of the Massachusetts Burma law say it resembles state boycotts
dating to the Boston Tea Party, when pre-Revolution Massachusetts activists
blocked goods from Britain. Chief Justice William H. Rehnquist said
yesterday that since the Constitution wasn't in effect then, he wasn't sure
there was a connection. But Justice Antonin Scalia noted that the
Constitution is specific about foreign policy powers taken away from the
states, and purchasing laws aren't among them.
Barnico also argued that Congress possesses the power to override the
Massachusetts law and has failed to do so. Instead, Congress passed a
measure Clinton signed that prohibited all but humanitarian assistance to
Burma, now known as Myanmar; directed the executive branch to vote against
assistance in international financial institutions; barred Myanmar
officials from entering the United States; and gave the president power,
which he used in 1997, to restrict new investment in Myanmar.
The Burma military junta took power in 1988 after losing 80 percent of the
seats in parliament to the National League for Democracy. The regime first
jailed, then restricted the NLD's popular leader Aung San Suu Kyi, who won
the Nobel Peace Prize in 1991. She has called for international economic
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