The States' Role (if any) in Foreign Affairs.

• Author: Naftzger, Dave

A recent Supreme Court decision on the Massachusetts law discouraging trade with Burma leaves the door open to state involvement in the affairs of nations.

Is it unwise for states to meddle in foreign affairs? The U.S. Supreme Court seemed to say in a July 19 decision that states have no business there at all. But the facts of the case and details of the Court's decision paint a far more complex picture with important implications for the role of state legislatures.

It all began when Massachusetts passed a law discouraging trade with Burma (Myanmar). The United Nations Human Rights Commission had found that the Burmese military regime was engaging in brutal repression and the denial of basic human rights. Outraged at the cruelties, Representative Byron Rushing spearheaded a Massachusetts statute that, in essence, imposed a 10 percent penalty on the bids of companies doing business with Burma and placed them on a "restricted purchase list" compiled by the state's Operational Services Division. "I am committed to put everything in place to ensure the restoration of democracy in Burma," Rushing explained.

However, the National Foreign Trade Council, a business group that represents 580 members, challenged the statute in federal court. The suit reflected widespread concern in the business community, says council President Frank Kittredge, about the "patchwork quilt" of varying sanctions imposed by state and local governments. Among its many arguments, the trade council contended that the Massachusetts law "undermines the authority of the president to speak with one voice for the United States" and violate the federal government's exclusive authority to regulate foreign affairs. The group said the law violated the foreign commerce clause of the Constitution, which states that "Congress shall have power ... to regulate commerce with foreign nations, and among several states, and with Indian tribes." It also asserted that the Massachusetts law had been preempted by federal sanctions on Burma.

The Supreme Court could have issued a sweeping opinion against Massachusetts based on broad preemption doctrine that would have prevented states from imposing sanctions on firms doing business in certain rogue nations. Instead, the Court ruled in a narrow opinion based on the Constitution's supremacy clause that Congress had preempted the Massachusetts statute when it adopted federal sanctions against Burma.

"Because our conclusion that the state act...