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US: High Court Considers Massachusetts Anti-Burma Law

by Steven MufsonWashington Post
March 23rd, 2000

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 Massachusetts."

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 sanctions.

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