FW: First Amendment Problem?

[J. Noble]

At 7:03 PM -0400 4/30/06, <wasserma at fiu.edu> wrote:
>And as to John Noble's point about the Supremacy Clause: Since this does not
>entail Florida going off and making its own foreign policy that 
>conflicts with that
>of the Federal Government, I doubt there would be a problem (and certainly not
>one that the Federal Government would pursue in any event).  Florida defines
>"terrorist nation" by the U.S. Attorney General designation, so 
>there is a clear
>overlap, unlike in the Massachusetts case.

There was also an overlap between the federal and state sanctions 
against Burma, although it was the state's sanctions that were 
broader in that case. And although it was a trade group, not the 
federal government, that brought suit in Crosby, I'm not sure the 
federal government shouldn't pursue it. There is a principle at 
stake. From the decision:

The conflicts are not rendered irrelevant by the State's argument 
that there is no real conflict between the statutes because they 
share the same goals and because some companies may comply with both 
sets of restrictions. See Brief for Petitioners 21-22. The fact of a 
common end hardly neutralizes conflicting means,14 see Gade v. 
National Solid Wastes Management Assn., 505 U.S. 88, 103 (1992), and 
the fact that some companies may be able to comply with both sets of 
sanctions does not mean that the state Act is not at odds with 
achievement of the federal decision about the right degree of 
pressure to employ.

*    *    *
Again, the state Act undermines the President's capacity, in this 
instance for effective diplomacy. It is not merely that the 
differences between the state and federal Acts in scope and type of 
sanctions threaten to complicate discussions; they compromise the 
very capacity of the President to speak for the Nation with one voice 
in dealing with other governments. We need not get into any general 
consideration of limits of state action affecting foreign affairs to 
realize that the President's maximum power to persuade rests on his 
capacity to bargain for the benefits of access to the entire national 
economy without exception for enclaves fenced off willy-nilly by 
inconsistent political tactics.16 When such exceptions do qualify his 
capacity to present a coherent position on behalf of the national 
economy, he is weakened, of course, not only in dealing with the 
Burmese regime, but in working together with other nations in hopes 
of reaching common policy and "comprehensive" strategy.

John Noble