Global Policy Forum

Excerpt

Call for Amicus Support of Massachusetts: The State of Massachusetts has asked the Supreme Court to review the decision by a federal court of appeals that overturned the Mass. "Burma law." The law is modeled after the successful anti-Apartheid boycott laws that were adopted by 25 states and 80 local governments. The Burma law seeks to avoid spending public funds on business with companies that support repression of human rights by doing business in Burma. The following bulletin calls for diverse public officials and organizations to join amicus briefs that support Massachusetts and the traditional power of states to spend public funds on the basis of standards that promote human rights and democracy. Deadline for responding: Friday, 10/15/99

Contents

1. Massachusetts Burma Law
2. Status of the Case
3. Merits & Risks of Supreme Court Review
4. Need for Amicus Participants
5. Summary of Amicus Briefs
6. Sources of Further Information
7. Draft Letters to Join an Amicus Brief

1. Massachusetts Burma Law

The Massachusetts Burma law was challenged in federal court by the National Foreign Trade Council (NFTC) with a supporting amicus (friend of the court) brief from the European Union. Often referred to as "selective purchasing," the law discourages state agencies from doing business with companies that do business in Burma. It provides a 10% preference for bids from companies that avoid doing business in Burma unless the preference would impair essential purchases or result in inadequate competition. The premise behind this law is that virtually all international trade and investment in Burma contributes to violation of human rights.

Official reports of the U.S. government, the United Nations and the International Labor Organization find that the military government of Burma has violated international standards of public morality. These abuses include forced labor, suppression of a democratically elected government, suppression of individual political rights, torture, rape, and various forms of discrimination against ethnic minorities. In addition, the military profits from money laundering and support of narcotics trafficing, which accounts for approximately half of all heroin exported to the United States.

Doing business in Burma inescapably supports the ability of the military government of Burma to continue abusing human rights. That is because international trade provides the foreign currency that the government uses to purchase weapons and military equipment. Virtually all international commerce with Burma requires direct business relations with the government of Burma or with trading companies that are owned or controlled by the government. In addition, the economy of Burma depends upon infrastructure that has been built with the forced labor of over 5.5 million people over the past decade.

2. Status of the Legal Challenge

On April 30, 1998, the National Foreign Trade Council filed a legal challenge against the Massachusetts Burma Law in the federal district court in Boston. The NFTC is an association of approximately 600 corporations, which is closely allied with USA*Engage, a corporate coalition that opposes selective purchasing, and more generally, unilateral sanctions.

On November 4, 1998, Judge Joseph Tauro ruled that the Burma law is unconstitutional because it encroaches upon an exclusive power of the federal government to manage foreign affairs. In defining the scope of foreign affairs, Judge Tauro embraced the European Union's argument that the Burma law "interferes with the normal conduct of EU-US relations" because it "raises questions about the ability of the U.S. to honor international commitments it has entered in the framework of the World Trade Organization."

On June 22, 1999, the First Circuit Court of Appeals in Boston upheld Judge Tauro's decision. It also ruled against Massachusetts on two other arguments raised by the NFTC. First, it ruled that the Burma law impermissibly burdens foreign commerce. Second, it ruled that the law is preempted by the federal sanctions against the military government of Burma. Congress authorized federal sanctions several months after Massachusetts enacted its law. The decision of the First Circuit Court of Appeals is binding only on jurisdictions within that circuit, which includes Maine, New Hampshire, Massachusetts and Rhode Island. However, the NFTC has announced its intent to sue other jurisdictions and use the First Circuit opinion topersuade other federal courts to follow this precedent.

On September 20, 1999, Massachusetts filed a "Petition for Certiorari" that asks the Supreme Court to review this case. Amicus briefs in support of Massachusetts are due on October 20, as is the response from the NFTC.

3. Merits & Risks of Supreme Court Review

Massachusetts is asking for Supreme Court review at a time when the Court has consistently ruled in favor of state governments on issues of federalism, set high standards for congressional preemption of state law, and limited the capacity of private parties to sue states. The high court is the best court for a state to defend its legislative authority against a challenge that seeks to expand federal judicial review of state spending practices.

The Supreme Court grants only abut 3 percent of the petitions for review, so the odds are that the First Circuit opinion will remain in place. There is no legal risk in seeking but not obtaining Supreme Court review of a case. If the Supreme Court accepts the case, there is always a risk that it will uphold the lower court, thus applying the lower court decision to the restof the country. However, once the Supreme Court accepts a case, it reverses the lower court decision well over half of the time.

6. Sources of Further Information

You can view and print all court decisions and briefs in support of Massachusetts before the First Circuit Court of Appeals at the website for Earthrights International,
.

Alternatively, you can request an electronic copy of individual briefs by sending a message to < This e-mail address is being protected from spambots. You need JavaScript enabled to view it >.

You can view and print all briefs in support of the NFTC at the website for USA*Engage, .

b. Citations to legal opinions: The federal trial court opinion is NFTC v. Frederick Laskey et al., 26 F. Supp.2d 287 (D. Ma. 1998). The federal appeals court opinion is National Foreign Trade Council v. Andrew S. Natsios, et al., 181 F.3d 38 (1st Cir. 1999). c. Background on Burma: For information on the movement for democracy in Burma, we recommend three of the many Burma-related web sites because they include links to many other websites: Free Burma.org, ; the Burma Project of the Open Society Institute, ; and the Free Burma Coalition, .