Fed ct strikes down state anti-Burma-trade law

[Volokh, Eugene]

        National Foreign Trade Council v. Baker, 1998 WL 790597 (D.
Mass. Nov. 4), strikes down the Massachusetts Burma Law -- which
"prohibits the Commonwealth and its agents from purchasing goods or
services from anyone doing business with the Union of Myanmar (formerly
known as the Nation of Burma)."

        The statute, the court says, "impermissibly burdens U.S.-foreign
relations," in violation of the Constitution's grant to the federal
government of exclusive authority over foreign affairs.  The court does
not decide whether the statute also violates the Foreign Commerce
Clause, which would require the court to determine whether the
market-participant exception to the dormant Commerce Clause applies to
the dormant Foreign Commerce Clause.

        The court cites Zschernig v. Miller, 389 U.S. 429 (1968), which
struck down a state law that conditioned the right of a nonresident
alien to inherit property from an Oregon resident on reciprocal
treatment by the beneficiary's country of origin, and three cases that
struck down laws that were roughly related to the Massachusetts Burma
Law (two that were aimed at South Africa and one at Iran).  The court
distinguished three other cases, two on the grounds that they dealt with
a general "Buy American" policy rather than a policy aimed at on e
particular country, and one on the grounds that it upheld an ordinance
that withdrew a city's own investments from South Africa, rather than
trying to influence city contractors.


Eugene Volokh, UCLA Law School
405 Hilgard Ave., L.A., CA 90095