The Bay State’s War on Burma
Last Wednesday, Justices Souter and Thomas appeared before a House Appropriations subcommittee to present the Supreme Court’s budget request for 2001. The court is asking for $45 million, plus $100 million for renovations. Today, gazing up at enough red velvet and gold braid to see a dozen Scarlett O’Hara’s through a dozen cotillions, I’m thinking: “Bamboo. Let’s redo it in bamboo …”
At the same hearing last week, Souter and Thomas were asked why their law clerks continue to come overwhelmingly from that subset of human males known as Lanky White Yale Refugees (LaWYRs). To which the justices—who know a trick question when they hear one—replied: “Because.”
This morning’s oral argument, in Natsios vs. National Foreign Trade Council, offers a rather elegant mirror image of the other federalism cases before the court this term. Those cases turn on attempts by the federal government to regulate matters traditionally handled by the states, such as the federal effort to regulate driver’s-license information (in Condon vs. Reno) and rape (in Brzonkala vs. Morrison). In those cases, “progressive” feds were dragging the reluctant states—often kicking and screaming—toward a “humanitarian” policy. But what to do when the states are more humanitarian than the federal government? It’s still a question of “states’ rights,” but this time, the state doesn’t look like a bunch of reactionary hillbillies. The feds do.
In 1988, a military junta seized power in Burma, killing thousands of protesters and torturing, raping, and imprisoning countless others. The regime supports its own business enterprises through forced labor of unknowable dimensions. In 1996, Massachusetts enacted a “Burma Act,” precluding the state from doing business with Burma or doing business with businesses that themselves do business with Burma (a “secondary boycott”). Exceptions are made for the purchase of some medical equipment, news-gathering and telecommunications organizations, or when the bid is 10 percent lower than any other bid.
Massachusetts was sued by the National Foreign Trade Council (NFTC)—a business coalition that has some members doing business with Burma but that is mainly opposed to unilateral sanctions. The Burma Act was enjoined in the district court, and that decision was upheld on appeal to the First Circuit. The First Circuit decision reads like a Framers’ Constitutional doily—a glorious web of federal foreign-affairs powers, commerce clauses, and pre-emption doctrines. And a gavel on the wrist for Massachusetts’ attempt to usurp federal foreign-policy-making powers.
Thomas A. Barnico, the assistant attorney general of Massachusetts, arguing on behalf of the great-grandchildren of those scrappy tea dumpers, does so without much concern for the consequences of all 50 states’ up-and-boycotting at the drop of a tea bag. Ginsburg asks what would happen if it were not Burma but rather Austria or Switzerland violating human rights. Barnico says boycott away.
Justice Kennedy queries whether it is realistic to ask Congress to exercise ongoing jurisdiction over every state or local government seeking to alter foreign policy. O’Connor points out that Congress already passed its own Burma law (a far milder version, enacted in 1996). Barnico says that Congress, well aware of the Massachusetts act, was silent in the federal law as to state action. That means Congress did not expressly pre-empt state action in the field of Burma policy.
Breyer lets fly with one of his labyrinthine hypotheticals: “Say California refused to buy textbooks from Massachusetts because Massachusetts has no death penalty and they think it should.” Scalia interrupts to point out that California could constitutionally decide to buy only California textbooks anyway. (Perhaps Berkeley’s first-year contracts textbook? Contracts: An Empowering Journey of Self Discovery.) Barnico agrees this is permissible under the “dormant commerce clause.” (That’s dormant commerce clause, as distinguished from somnolent Justice Thomas.)
Ginsburg asks whether his presumption—states get to meddle in all foreign affairs absent explicit prohibition by Congress—isn’t upside-down. He replies that the Framers were well aware of state boycotts during Revolutionary times. Rehnquist stops him, puzzled. “By ‘Revolutionary times’ do you mean before the Constitution was adopted?” “Yes.” Rehnquist points out that this isn’t exactly a satisfying way to evaluate the Constitution.
Justice Souter—the balancer—seeks a balance between state power to dissociate from bloodthirsty juntas and blatant efforts to muck up national foreign policy. Couldn’t Massachusetts just verbally condemn Burma? Pass resolutions and such? No, says Barnico. We would still be giving them money. “But,” Ginsburg asks, “what should we do about the fact that Massachusetts’ decision to ‘go it alone’ clashes with the federal interest to speak in one voice?” Barnico insists there is no clash.
Timothy B. Dyk (pronounced “dike”), arguing on behalf of NFTC, looks remarkably like Justice Kennedy. Then again, most lawyers (and all federal law clerks) look remarkably like Justice Kennedy. And I am told that Justice Kennedy was once confused with Ken Starr on an airplane. It’s starting to look like John Malkovich’s head in here.
Dyk is asked by O’Connor whether Massachusetts has an affirmative obligation to deal with any country, and Dyk answers that states may purchase as they choose so long as they are not trying to influence foreign policy. Scalia asks doubtfully whether Massachusetts can tell a visiting Muslim, “You can’t bring more than one of your wives” just because there’s a state law against bigamy? Dyk responds that a prohibition on importing wives wouldn’t influence a foreign-policy decision.
Then Dyk defies the court to find a single instance in which a state was permitted to exercise independent foreign-policy powers. Scalia-smarty-pants does so. Now Dyk is getting tangled in double-edged analysis. He’s trying to argue that the class of things states cannot do is defined by their subjective intent to influence foreign policy. He offers: “The state is like a dog barking. We seek to take the teeth from the dog.”
If a toothless dog barks in a forest …
The strange bedfellows abound today. States’-rightsers and strict constructionists such as Scalia are hand in glove with hippie human-rightsers like Breyer. The whole argument has a through-the looking-glass quality, in that it stands all other states’-rights cases on their heads.
Solicitor General Seth Waxman, resplendent in father-of-the-bride morning coat, says the commerce clause was enacted to prevent any state from holding any other state or the federal government hostage with capricious policies. He highlights the importance of “coordinated multinational efforts” in Burma, and the “considerable disruption” and embarrassment caused by the boycott. He adds, “Instead of talking about what to do with Burma, we now talk about what to do with Massachusetts.”
Now, this is mysterious. Is Gen. Waxman arguing that states shouldn’t be allowed to choose how to spend their own money because such boycotts are effective in changing foreign policy? Because surely the worst condemnation of the Massachusetts Burma Act cannot be that the boycott is working …
The justices interrupt one another so often today (I count a three-fer, when Stevens cuts off O’Connor, who cut off Scalia) that even the unflappable Waxman looks pissed. Ironic that his defense of the federal government’s need to speak in “one voice” on foreign policy is hobbled by justices who speak in three voices at once. Yale professor Akhil Reed Amar observed last weekend that the federal government’s insistence that it speak in “one voice” in matters of human rights offends the most fundamental values the Framers sought to protect.
In ending full circle, the court handed down a staggering 9-0 decision in Board of Regents vs. Southworth today, upholding the university’s decision to spend student fees on gays, wheelchair ramps, and mimes whether or not students wish to fund them. The opinion recognizes that Americans are as strong as our cacophonous speeches make us, and that no one—not Scott Southworth and not Madeleine Albright—can speak for us all.
