The New York Times / By LINDA GREENHOUSE
WASHINGTON, March 22 -- The State of Massachusetts went before the Supreme Court today to defend its refusal to conduct business with any company that does business in Myanmar, the former Burma.
The state has an important interest in "disassociating state tax funds from a brutal regime," Thomas A. Barnico, the state's lawyer, said, drawing analogies to the Boston Tea Party and to the more recent commercial boycotts of South Africa's former apartheid government.
But Mr. Barnico, an assistant state attorney general, had trouble allaying the justices' fears about the logical consequence of ruling in the state's favor. Fifty states conducting 50 foreign policies would be "inconsistent with what the Federalist Papers say was the purpose of forming the union," Justice Anthony M. Kennedy told him.
The state is appealing a ruling last year by the federal appeals court in Boston that the Massachusetts "Burma Law" was an "impermissible intrusion into the foreign affairs power of the national government." Some two dozen state and local governments, including New York City, have enacted similar "selective purchasing" laws that effectively withhold government contracts from companies that do business in Myanmar or other countries, including Nigeria, Tibet, Indonesia and Cuba.
The Massachusetts law was challenged by the National Foreign Trade Council, a Washington organization of 550 companies, several dozen of which are on the state's restricted purchase list. The group's lawyer, Timothy B. Dyk, called the Massachusetts law a "coercive secondary boycott."
The Clinton administration supported the challenge to the law, which Solicitor General Seth P. Waxman called a "wholly unnecessary irritant" in United States relations with its trading partners. Mr. Waxman said that in trade discussions with members of the European Community, which lodged an official protest against the state law, "the question now is not what to do about Burma but what to do about Massachusetts."
"This is a case about means, not goals, with respect to the Burma regime," Mr. Waxman added.
Months after Massachusetts passed its law in 1996, Congress passed the more limited Federal Burma Act, which restricts new investment in Myanmar.
Mr. Barnico said it was significant that neither in that legislation nor elsewhere did Congress prohibit state and local governments from pursuing their separate strategies against Myanmar. Congress could decide at any time that national uniformity was preferable and could pre-empt the state and local laws, he said.
"Why shouldn't the presumption be exactly the opposite?" Justice Ruth Bader Ginsburg asked. "Why shouldn't the assumption be that unless Congress says, 'Yes, states, you can do this,' that no state can act."
Such a presumption would go too far, the state's lawyer said. He said there was "such a strong match here with the boycotts of Revolutionary times."
"You mean, before the Constitution was adopted," Chief Justice William H. Rehnquist said.
Yes, Mr. Barnico said, prompting the chief justice to observe, "I don't know that that's a satisfactory basis for analyzing the thing, after the Constitution was adopted."
"The framers knew boycotts well and held them dear," he said.
Then, the chief justice persisted, why were there no state boycotts between the Revolutionary War and the anti-apartheid laws of the 1980's.
Mr. Barnico replied that during that period, there was limited global trade and "limited information" about foreign regimes.
"How about the activities of Stalin in Russia, Hitler in Germany, or Mussolini in Italy?" Chief Justice Rehnquist said mildly.
The only member of the court who appeared favorably disposed to the state was Justice Antonin Scalia.
"What exactly in the Constitution prevents states from making foreign policy?" he asked Mr. Dyk, the companies' lawyer.
Justice Scalia said the Constitution's specific prohibitions against state involvement in treaties and in war "would all be unnecessary if there was some overriding, unexpressed principle in the Constitution that states can't get involved in foreign policy."
The case, Natsios v. National Foreign Trade Council, No. 99-474, has stirred passions on both sides. In particular, defenders of the state law appear to have tapped into some of the populist anger against the forces of globalization that have recently been directed against the World Trade Organization and other international bodies. A group of youthful demonstrators on the Supreme Court's plaza this morning carried such signs as "European Union Out of Boston Harbor" and "Boston Tea Party 2000."
Reflecting the complexity of the competing issues in the case, members of Congress have filed briefs on both sides. Twenty senators and representatives, including Senator Richard G. Lugar, Republican of Indiana, and Senator Dianne Feinstein, Democrat of California, signed a brief asserting that "the Constitution gives the national government exclusive authority to set and conduct foreign policy."
On the other side, 78 members of Congress, including California's other Democratic senator, Barbara Boxer, along with Senators Edward M. Kennedy and John Kerry, Democrats of Massachusetts, signed a brief supporting the state.
Twenty-three states and dozens of local governments at one time imposed various forms of sanctions against South Africa. Several were challenged in court, but the issue never reached the Supreme Court.
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