Unitary Executive: Presenting a United Front to Foreign Powers
In 1996, Massachusetts enacted “An Act Regulating State Contracts with Companies Doing Business with or in Burma (Myanmar),” ch. 130, 1996 Mass. Acts 239 (codified at Mass. Gen. Laws ch. 7, §§ 22G-22M, 40F+ (West Supp. 1998)) (“Massachusetts Burma Law”). The law restricts the ability of Massachusetts and its agencies and authorities to purchase goods or services from individuals or companies that engage in business with Burma. The law requires the Secretary of Administration and Finance to maintain a “restricted purchase list” of all firms engaged in business with Burma. Mass. Gen. Laws ch. 7, § 22J. As the district court explained, companies may challenge inclusion on the list by submitting an affidavit stating that they do no business with Burma, but final determination as to whether a company is in fact “doing business” as defined by the law is made by the Executive Office’s Operational Services Division. See National Foreign Trade Council v. Baker, 26 F. Supp.2d 287, 289 (D. Mass. 1998).
The district court held that the law interferes with foreign relations and is unconstitutional. The First Circuit affirmed and held that the law also violated the Foreign Commerce Clause and the Supremacy Clause.
Writing on behalf of several former high level foreign policy officials, including former president Gerald R. Ford, ALF writes to impart to the Supreme Court an understanding of the practical considerations at stake.
May a State conduct its own foreign trade policies through the use of sanctions?
ALF’s Amicus Brief:
ALF and its distinguished co-amici ask this Court to affirm the court below because state and local trade sanctions significantly impede the ability of the federal government to conduct the foreign policy of the United States. They cause conflicts and tensions with foreign countries, provoking responses from those countries that, as a matter of international law and as a practical matter, require the attention of the President and federal foreign policy officials. The need for national officials to attend to the disruption caused by state and local action interferes with higher priorities on the U.S. foreign policy agenda.
State and local trade sanctions confuse foreign countries about the foreign policy of the United States by diluting the uniformity and clarity of the nation’s position. Confusion about the U.S. policy hampers the ability of national officials to build coalitions with other nations and to bargain with foreign countries effectively, especially in international trade negotiations.
Finally, state and local trade sanctions harm national foreign policy because state officials lack sufficient information to make informed foreign policy judgments. The federal government has access to considerable information about foreign countries and the interests of the United States. State and local decision makers do not have access to this full range of information, do have a national perspective, and therefore take actions inconsistent with the carefully balanced national policy.
