NFTC Urges Supreme Court to Rule

Monday, 14 February 2000

NFTC filed suit on behalf of its members on April 30, 1998. The U.S. District Court for the First Circuit found in favor of NFTC – agreeing that the statute violated the federal government's power to conduct foreign affairs. In June of 1999, the U.S. Court of Appeals for the First Circuit also ruled in favor of NFTC’s position, expanding on the District Court’s ruling by unanimously holding that the Burma Law not only intruded impermissibly on the federal government's exclusive authority to conduct foreign relations, but also violated the foreign commerce clause and was preempted by federal law regarding Burma.

"The issue before the Court is whether foreign policy is exclusively the preserve of the federal government, or whether states and municipalities may also make foreign policy," said Frank Kittredge, President of the National Foreign Trade Council. "We share concerns over reported human rights abuses in Myanmar, however, our system of government was not designed to allow the fifty states and thousands of municipalities to conduct their own individual foreign policies. Instead, states and municipalities should address such concerns to the federal government for consideration in developing a cohesive national voice."

In its brief, the NFTC argues that the Massachusetts Burma Law is a clear exercise of foreign-affairs power prohibited to the states by the Constitution. The Law prevents any company, whether domestic or foreign, that does business in Myanmar from securing contracts to provide goods and services to Massachusetts. NFTC holds that the law is effectively a secondary boycott that coerces

U.S. and foreign companies to cease doing business in and with Myanmar, as a means of criticizing that nation’s government and bringing about changes in that nation’s policies.

The history of the Constitution shows clearly that the Framers intended the federal foreign affairs power to be exclusive, leaving no room for the states. The Framers plainly considered state exercises of foreign-affairs power to be "absolutely and totally contradictory and repugnant" to the Constitution’s plan of government.

NFTC noted that the Supreme Court itself has consistently supported this position, repeatedly characterizing the national government’s authority in the foreign-relations areas as "full and exclusive," "entirely free from local interference," and "not shared by the States [but] vested in the national government exclusively."

"Without Federal authority over foreign affairs, each of the 50 state governments and over 39,000 other local governments, with almost $1 trillion in purchasing power, would be free to make foreign policy," Kittredge continued. "This isn’t in the best interests of the nation, and is certainly a situation the Framers intended to prevent."

NFTC was joined in its position with a series of Amicus Briefs filed on behalf of:

  • The European Community
  • A wide array of national and state business groups, including the Chamber of Commerce of the United States, the American Farm Bureau Federation, and the National Association of Manufacturers.
  • Associated Industries of Massachusetts, Retailers Association of Massachusetts, and the Connecticut Business and Industry Association.
  • Members of Congress
  • Former U.S. Government officials, including President Gerald Ford, Richard Cheney, Lee Hamilton, Carla Hills, Robert McNamara, Ed Meese, Leon Panetta, and George Shultz.
  • The Washington Legal Foundation

"This case is without question the most important foreign affairs case to come before the Supreme Court in decades, and will not only decide the fate of the Massachusetts Burma Law, but also that of similar laws across the country," Kittredge concluded.

The Supreme Court will hear arguments in this case on March 22, 2000.

The NFTC has, for most of this century, represented the interests of hundreds of companies in open international trade. NFTC filed the Massachusetts case on behalf of its 580 members because the law established a "restricted purchase list" which includes over 30 of the NFTC's member companies -- preventing these companies from competing on an equal basis for contracts with Massachusetts state agencies unless these companies cease doing business in Burma.

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