___________________

National Foreign Trade Council,

Plaintiff-Appellee,

v.

Frederick Laskey, In His Official Capacity

as Secretary of Administration and Finance

of the Commonwealth of Massachusetts

and

Philmore Anderson, III, In His Official Capacity

as State Purchasing Agent for

the Commonwealth of Massachusetts

Defendants-Appellants.

___________________

On Appeal From A Final Judgment of the

United States District Court for the

District of Massachusetts

___________________

___________________

MARTIN S. KAUFMAN

EDWIN L. LEWIS, III

ATLANTIC LEGAL FOUNDATION, INC.

205 East 42nd Street (9th Floor)

New York, NY 10017

(212) 573-1960

PRELIMINARY STATEMENT

William E. Brock, Sam M. Gibbons, Alexander M. Haig, Jr., Lee H. Hamilton, Carla A. Hills, George P. Shultz, and Clayton Yeutter (hereafter "amici") respectfully submit this brief amici curiae in support of the National Foreign Trade Council ("NFTC").

Amici have served in previous administrations as Secretary of State, Secretary of the Treasury, White House Chief of Staff, United States Trade Representative, in a variety of senior national security positions, as Chairman of the House Committee on Foreign Affairs and/or as Chairman of the House Ways and Means Committee. In those capacities they were charged with responsibility for the conduct of foreign relations by the United States, including international trade, economic, political, security and humanitarian issues, for formulating United States foreign policy and international trade policy, for negotiating international trade agreements, and for monitoring compliance by the United States and its trading partners with bilateral and multilateral international trade agreements to which the United States is a signatory. Biographical information about each amicus is contained in the "Biographical Addendum" to this brief.

Amici do not regularly advocate, as a group or individually, any positions in litigation, but they believe this case is of such great importance to United States trade and other international relationships, and has such broad implications for the successful conduct of international relations, that they are motivated to present their views to this Court. While some amici represent business enterprises that engage in international trade, they have no specific knowledge as to whether any of their clients (or their firms' clients) do or intend to do business with Myanmar or with the Commonwealth of Massachusetts. Amici speak here in their individual capacities, and not as representatives of their firms, their clients, or any government.

Amici wish to make it absolutely clear that they do not dispute the fact that the current government in Myanmar deserves strong censure for its human rights violations. They do not condone the violation of human rights by any nation or government, whether a traditional friend of the United States, an historic rival of the United States, or a neutral country. They feel strongly, however, that the character of the foreign regime should not alter the constitutional analysis nor obscure the practical necessity that United States foreign policy must not be set by the several states, but by Congress and the Executive, which weigh and balance the multifaceted national and/ international interests of the Nation -- and perhaps the free world as a whole.

STATEMENT OF FACTS

Amici rely on the Statement of Facts in the brief of NFTC submitted to this Court.

We believe that there is no question that the Massachusetts Act of June 25, 1996 (chapter 130, '1, 1996 Mass. Acts 210, codified at Mass. Gen. Laws, ch. 7, ''22G-22M) (hereafter the ":Massachusetts Burma Law" or the "Burma Law") restricts the ability of state agencies to enter into contracts with persons doing business with Myanmar (formerly known as Burma). The original sponsor of the Burma Law said that its purpose was to put pressure on the government of Myanmar to hold free elections and to combat repression and intolerance there. A.432-433. As a practical matter, the Burma Law requires, first, that a company doing or seeking to do business with Massachusetts agencies to stop doing business with Myanmar and, second, that a company doing business with Myanmar to forfeit business with Massachusetts.

The Burma Law has already had considerable impact on international relations. Several foreign nations have expressed to the federal government their strong objections to the Burma Law. The Association of South East Asian Nations ("ASEAN") and Japan, representing states in the region in which Myanmar is located, have expressed serious concerns to the United States regarding the Burma Law. See A.328-329; A.330-332. Both the European Union and Japan have lodged formal complaints with the World Trade Organization ("WTO"), condemning the Burma Law as a violation of the United States' treaty obligations. See A.167-168, A. 169.

The formation and implementation of United States foreign policy is a complex and delicate matter, involving coordination of various domestic and international interests of the United States. Foreign nations must know that when the President, the Secretary of State (or one of her deputies), or the

U. S. Trade Representative (or one of her deputies) speaks, they speak for the United States. That is why the Constitution vests the foreign affairs power of the United States exclusively in the federal government.

While Massachusetts is the only state to have enacted a restrictive purchasing law penalizing companies that do business in or with Myanmar, 21 counties or municipalities have imposed similar restrictions. See Brief Amicus Curiae of North Dakota, et al. in Support of Defendants-Appellants at 9, n.3; see also A.87. These include the largest and second-largest cities in the United States. (The brief of North Dakota, et al. omits mention that since the district court's decision in this case Los Angeles has enacted a "Burma sanctions" ordinance.) Several states and localities that do not yet have Burma sanctions laws have filed briefs in this Court or in the district court supporting defendants-appellants, demonstrating the potential for proliferation of such trade sanctions measures and the potential for increasing interference with federal foreign policy prerogatives. See Organization for International Investment, State and Municipal Sanctions Report, Dec. 1, 1997, at 3.

The United States has enunciated its policy with respect to Myanmar. In 1996 Congress enacted legislation that imposed specific sanctions on Myanmar and authorized the President, in his discretion, to impose additional sanctions. See Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, '570, 110 Stat. 3009 (1997). Specifically, Congress authorized the President to restrict "new investment" in "development of resources" in Myanmar, ''570(b)and 570(f)(2). Congress did not restrict contracts for goods, services and technology. '570(f). In addition, President Clinton's Executive Order 13,047, 62 Fed. Reg. 28,301 (1997), implementing Congressional policy, announced that the United States' sanctions applied only to United States companies and not foreign companies. Congress also directed the President to develop a multilateral strategy for inducing the Myanmar government to change its policies. '570(c). A multilateral strategy, by definition, requires cooperation with Myanmar's neighbors, its other trading partners, and with the United States' trading partners. In that context, the adverse reaction to the Massachusetts Burma Law on the part of the European Union, Japan and the ASEAN countries is particularly noteworthy.

It is also significant that there are major substantive conflicts between the Massachusetts sanctions and the sanctions that have been imposed by the federal government: the Massachusetts sanctions are not limited to new investments and they are not limited to American companies -- applying instead to domestic and foreign companies alike; the Massachusetts sanctions are unilateral; and there was no effort to coordinate them with any multinational strategy. The Massachusetts Burma Law's breadth and specific provisions are inconsistent with the measured and balanced foreign policy approach carefully orchestrated by Congress and the President.

The Massachusetts Burma Law is unconstitutional because it infringes upon the federal government's exclusive foreign affairs power. International law recognizes only nation states and national governments -- not political subdivisions of nations -- as competent to express foreign policy matters, and holds nations responsible for the acts of their political subdivisions. The United States Constitution explicitly allocates foreign affairs powers to the federal government. The Supreme Court has repeatedly affirmed the rule of law that states may not take actions that derogate from the federal government's exclusive and plenary foreign affairs powers. It is vital to the interests of the United States that the nation speak with one voice in matters of foreign policy and international trade policy. Foreign policy requires a delicate balancing of various national priorities and the interests of various regional, local and economic interests, a task for which only the federal government is equipped. Actions by state and local governments that impinge upon foreign policy or international trade matters can as a consequence be extremely deleterious to national interests. The district court correctly held that the Massachusetts Burma Law was an unconstitutional infringement upon the exclusive federal foreign affairs power.

The district court, relying heavily on Zschernig v. Miller, 389 U.S. 429 (1968)("Zschernig"), declared the Burma Law invalid on the ground that it intrudes on the exclusive federal foreign policy prerogative. We submit that this holding was correct, and that Massachusetts is asking this Court to overrule the Supreme Court's decision in Zschernig.

I.

THE BURMA LAW IS UNCONSTITUTIONAL BECAUSE

IT INFRINGES UPON THE FEDERAL GOVERNMENT'S

EXCLUSIVE FOREIGN AFFAIRS POWER

As discussed infra, the design of the Constitution places the foreign policy function squarely and exclusively in the federal government. The need for such an exclusive allocation of this role is almost self-evident.

International law recognizes only nation states and international organizations as "actors." In international law, federal states (such as the United States) constitute a single "person." See, e.g., Art. 2 of the Convention on Rights and Duties of States, 49 Stat. 3097, 165 L.N.T.S. 19 (1933); and see W. Friedmann, O. Lissitzyn & R. Pugh (eds.), International Law, Cases and Materials 308, n.1 (1969). One of the desiderata of a "state" is that it has "the capacity to enter into relations with other states." Convention on Rights and Duties of States, 49 Stat. 3097, 165 L.N.T.S. 19 (1933), Art. 1(d); see also Restatement, Second, Foreign Relations Law of the United States '4 (1965); Restatement, Third, Foreign Relations Law of the United States '1 (1987).

The individual American states neither send ambassadors to nor receive ambassadors from any foreign country and they do not have the capacity to enter into international agreements; indeed, the Constitution, Art. I, '10, cls. 1 and 3, expressly prohibits states from making treaties or from making "any Agreement or Compact" with foreign nations without leave of the federal Congress.

As a matter of international comity, no national government can engage directly with an individual political subdivision of another national state in a matter of foreign affairs. To do so would create insurmountable obstacles to effective diplomacy by creating confusion about which entity speaks for and acts on behalf of national interests.

Foreign affairs are conducted among governments and international organizations with legal competence to take international action, such as the recognition of governments, the regulation of trade, the making of war and the conclusion of peace, participation in international organizations, and the provision of bilateral or multilateral foreign aid. Foreign governments and international organizations conduct foreign relations with the government of the United States, not with individual states or municipalities.

Foreign policy is made by governments or multinational international organizations with such authority. Effective foreign relations are undertaken only by governments and international organizations that can make and keep commitments in these areas.

Accordingly, since the formation of the modern nation state in the 16th century, all foreign policy activities of countries have traditionally involved the national governments; direct relations between the government of one country and a state, province, city or region of another country is sometimes denounced

in international law as "interference" in the domestic affairs of the nation state to which the state, province or region owes allegiance.

In an era of burgeoning international trade, economic globalization, and the rapid movement of capital and means of production, the importance of having a unified, coordinated international trade policy is magnified and especially sensitive.

The formulation and implementation of United States foreign policy and international trade policy by the President is a difficult and delicate task. It requires the accurate analysis and assessment of diplomatic, security, economic and other policy (including human rights policy) interests. It requires close consultation with relevant congressional committees and the leadership in both houses of Congress. It requires consultations with foreign allies (and, sometimes, with foreign rivals) in both bilateral and multilateral settings. Most importantly, it requires the President and the Congress to weigh a variety of interests -- often competing and contradictory -- and come to a decision concerning the national interest -- that is, the interest of the United States as a whole.

Through the Secretaries of State, Treasury, Defense, Commerce, Agriculture and Energy, and through the United States Trade Representative and the Ambassador to the United Nations, through the National Security Advisor and his staff, through diplomatic and commercial missions abroad, and through our intelligence community, the President receives input and advice on foreign and trade policy issues. Policy options are developed and vetted through both the interagency deliberation process and the efforts of the White House National Security and National Economic Councils. Literally thousands of private sector advisors inform the judgment of agency officials on the basis of regular briefings under the Federal Advisory Committee Act. On many economic policy issues, members of the public at large, community groups or associations may provide written comments or address economic policy issues in public hearings through notice and comment procedures initiated by notices in the Federal Register. Congressional input is sought at all stages. This federal process is meant to ensure that all the disparate interests of the United States receive full due consideration before a decision is taken by the federal government.

States are neither institutionally equipped nor constitutionally competent to assess and weigh the competing interests of the nation as a whole. States cannot determine and should not be left to guess at the impact of a particular foreign policy initiative on U.S. bilateral or multilateral relations. States cannot know what balances they may destroy or accommodations with allies they may undo. That is neither their job nor their prerogative. This difficult and demanding national task is rightly committed to the federal government. States should no more be in the business of waging economic and diplomatic war -- no matter the cause -- than of embarking on their own military campaigns against enemies declared or undeclared.

Selective purchasing laws erode the ability of the federal government to establish a coherent foreign policy. In the case of Myanmar, the Executive Branch and Congress carefully determined the proper mix of economic sanctions to impose by balancing a complex set of objectives, including democracy and human rights in Myanmar, United States economic interests, and relations with key allies in Europe and Asia. Yet this carefully calibrated United States economic engagement policy may now be undermined as potentially hundreds of state and municipal governments proceed to re-calibrate America's approach, based on their own, purely local, judgments about how best to encourage change in Myanmar. The Massachusetts Burma Law constitutes a direct interference with the ability of the United States to cooperate and carry out foreign policy with regard to Myanmar on a multilateral basis in coordination with its trading partners, such as the European Union ("EU") and the members of ASEAN.

Contrary to the centuries-old recognition that diplomatic communications with the United States are conducted through its national government, under the Massachusetts Burma Law, Massachusetts has purported to conduct foreign policy on a state level by seeking to force the EU and its Member States, ASEAN and its members, and all other countries in which there are companies that wish to do business with Massachusetts, to abandon activities in Myanmar. These countries, like Congress, may have chosen not to ban such activities in favor of adopting other policy measures toward Myanmar. The Massachusetts Burma Law is thus aimed at punishing the activities of foreign companies which are lawful under laws of those countries.

The threat that local selective purchasing laws pose to the coherence of United States foreign policy is increasingly a matter of concern among senior American officials. While acknowledging the laudable goals animating Massachusetts's Burma law, Stuart Eizenstat, Under Secretary of State for Economic, Business, and Agricultural Affairs, has noted that ". . .these measures . . . risk shifting the focus of the debate with our European Allies away from the best way to bring pressure against [Myanmar's] State Law and Order Restoration Council (SLORC) to a potential WTO dispute over its consistency with our international obligations . . . . [W]e must be honest in saying that the threatened WTO case risks diverting United States' and Europe's attention away from focusing where it should be -- on Burma." Use and Effect of Unilateral Trade Sanctions: Hearing Before the House Ways and Means Trade Subcomm., 105th Cong. (October 23, 1997) (Statement of Stuart Eizenstat, Undersecretary of State for Economic, Business, and Agricultural Affairs). According to Undersecretary Eizenstat, "unless sanctions measures are well conceived and coordinated, so that the United States is speaking with one voice and consistent with our international obligations, such uncoordinated responses can put the U.S. on the political defensive and shift attention away from the problem to the issue of sanctions themselves." Id. Underscoring the State Department's official position, Undersecretary Eizenstat told the United States Congress that: "We are concerned about the impact of state and local sanctions on the President's ability to send a clear and unified message to the rest of the world . . . . Ad hoc and scattered actions at various levels of government, however well-intentioned, can do more harm than good in achieving the desired objective and impede the President's and Secretary of State's conduct of foreign policy." Id. Setting the Executive branch's mounting discomfort with such laws in a broader constitutional context, Mr. Eizenstat noted that "it is the Executive Branch of the U.S. Government which is charged with conducting the nation's foreign policy, in consultation with the U.S. Congress, not states and municipalities. We should have only one foreign policy at a time." Id.

David Marchick, Deputy Assistant Secretary of State for Economic and Business Affairs engaged in extensive consultations with state officials and has testified on several occasions before different state legislatures. In October 1997, Marchick appeared before California's State Assembly and warned that "state and local sanctions do have the practical effect of interfering with the President's ability to conduct our foreign policy." Testimony of Deputy Assistant Secretary David Marchick before the California Assembly Committee on International Trade & Development, 1997-98 Reg. Sess. 9 (Oct. 28, 1997). In March 1998, Marchick made clear to the Maryland House of Delegates (which was considering a selective purchasing law targeting Nigeria) that "state sanctions often can confuse the message the United States sends and impede our ability to build [international] coalitions to focus on the targeted regime." Hearings Before the Committee on Commerce and Governmental Matters, Maryland House of Delegates, 412th Session 4 (Mar. 25, 1998) (Testimony of Deputy Assistant Secretary David Marchick). See A.449-463. Amici share these concerns.

Selective purchasing laws have proliferated in many states and localities, and this Court should consider their potential cumulative impact on the federal government's ability to conduct a coherent foreign policy.

Like the Oregon law in Zschernig v. Miller, local selective purchasing statutes and ordinances have generated adverse reactions in foreign countries -- reactions with potentially far greater consequences for the United States than the single note of diplomatic protest from a small communist country (Bulgaria) cited in Zschernig. In response to Massachusetts's Burma Law, for example, the EU and Japan, both major American trading partners and allies, have filed protests with the United States Department of State, alleging that the law violates international trade rules. The EU and Japan have also lodged formal complaints with the World Trade Organization, the first step in a process that theoretically could result in retaliatory sanctions being imposed against the United States. See A.167-169; see also Gordon Fairclough, "Legal Beat: Massachusetts Statute on Burma is Challenged Under Trade Accord." WALL ST. J., July 25, 1997, at B17; "U.S., EU Make No Headway in Dispute Over Massachusetts Burma Law," INSIDE U.S. TRADE, July 25, 1997, at 14 (reporting that Japan initiated its own separate WTO dispute settlement process on July 18, 1997). Highlighting the EU's mounting concern, a 1997 European Commission report pointedly identified the "multiplication of selective purchasing laws" as "a worrying new trend in U.S. sub-federal policy-making aimed at regulating the behavior of economic agents beyond U.S. territorial jurisdiction. They are clearly disturbing the conduct of normal international economic relations." Neil Buckley, "U.S. Extra-territorial Trade Laws Anger EU," FIN. TIMES, July 30, 1997, at 4. Informally, other countries have reportedly also raised their concerns about Massachusetts's Burma Law with the State Department, including several members of the Association of Southeast Asian Nations (ASEAN). See Ted Bardacke, "American Burma Boycotts Start to Bite," FIN. TIMES, Feb. 6, 1997, at 6. Indicative of ASEAN's attitude were the statements of Malaysia's Prime Minister, asserting that "it was against international practice for a State like Massachusetts to introduce a law affecting the whole world" and "if such a move was not opposed, it would play havoc in international trade." A. Kadir Jasin, "Cambodia Decision Unavoidable," NEW STRAITS TIMES, July 21, 1997, at 1. See also A.330-332.

B. The Constitution Places Power Over Foreign Relations
Exclusively In The Federal Government

Placing exclusive power over foreign affairs in the national government was one of the central purposes of the Constitution. The Constitution fundamentally altered the relationship between the states and the national government with regard to the foreign affairs of the new nation, placing exclusive control over foreign relations in the new federal government. The authors of the Federalist Papers urged the importance of this centralized and exclusive national authority over foreign affairs: "If we are to be one nation in any respect, it clearly ought to be in respect to other nations." The Federalist No. 42 (J. Madison). The Constitution's creation of a national government with exclusive control over foreign policy was "fully justified by the advantage of uniformity in all points which relate to foreign powers; and of immediate responsibility to the nation in all those for whose conduct the nation itself is to be responsible." The Federalist No. 44 (J. Madison). In fact, although there was considerable debate over many of the provisions of the new Constitution, "there was virtual unanimity" that the responsibility for foreign relations had to be taken from the individual states and vested in the national government. F. Marks, Independence on Trial: Foreign Affairs and the Making of the Constitution 143 (1973). Under the Constitution, "[t]he United States is a single nation-state and it is the United States (not the States of the Union, singly or together) that has relations with other nations, and it is the United States Government that conducts these relations and makes foreign policy." L. Henkin, Foreign Affairs and the Constitution 15 (1972)(emphasis supplied). While the exclusive federal power over foreign affairs especially was not expressly stated, the Framers clearly recognized that "the exclusive delegation or rather this alienation, of State sovereignty" exists not only where the Constitution has expressly "granted an exclusive authority to the Union," but also where it granted "an authority to the Union to which a similar authority in the States would be absolutely and totally contradictory and repugnant." The Federalist No. 32 (A. Hamilton). The language of the Constitution itself addresses the "concern for uniformity in this country's dealings with foreign nations and indicat[es] a desire to give matters of international significance to the jurisdiction of federal institutions." Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 n.25 (1963). Article I, Section 8, cl. 4 authorizes Congress "[t]o regulate Commerce with foreign Nations." Article II, Section 2 grants authority to the President to make treaties and appoint ambassadors (cl. 2). The Constitution prohibits the states from making treaties or entering into agreements with foreign nations (Art. I, '10, cls. 1 and 3).

The courts of the United States have long recognized the principles of international law and diplomacy stated above, and have held that the foreign policy of the United States is determined and articulated exclusively by the Executive branch and by Congress. For purposes of international representation and communication, the President is the "sole organ of the nation in its external relations, and its sole representative with foreign nations." John Marshall, quoted in United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936); see Restatement, Third, Foreign Relations Law of the United States, '1, Reporter's Note 2 (1987).

Indeed, the Supreme Court has held that the states are bound to refrain absolutely from interfering in U.S. foreign affairs. The exclusion of the states from any independent authority in respect of foreign affairs has been recognized and reaffirmed since our national beginnings: "It was one of the main objects of the Constitution to make us, so far as regarded our foreign relations, one people, and one nation. . . ." Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 575-76 (1840). "[F]or national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power." The Chinese Exclusion Case, 130 U.S. 581, 606 (1889). "In international relations and with respect to foreign intercourse and trade the people of the United States act through a single government with unified and adequate national power." Board of Trustees v. United States, 289 U.S. 48, 59 (1933)(emphasis supplied). Indeed, the Supreme Court has held that "[i]n respect of our foreign relations. . .the State. . .does not exist." United States v. Belmont, 301 U.S. 324, 331 (1937). The federal government "is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties." Hines v. Davidowitz, 312 U.S. 52, 63 (1941)(emphasis supplied). The "[p]ower over external affairs is not shared by the States; it is vested in the national government exclusively." United States v. Pink, 315 U.S. 203, 233 (1942)(emphasis supplied).

The Supreme Court has established that "foreign affairs and international relations [are] matters which the Constitution entrusts solely to the Federal Government" Zschernig v. Miller, 389 U.S. 429 at 436 (1968). This principle of law has, in fact, been recognized since the adoption of the Constitution. As the district court held, "states and municipalities must yield to the federal government when their actions affect significant issues of foreign policy." (A.594) This decision was a faithful application of the Supreme Court's controlling jurisprudence.

Exclusive federal control over foreign affairs necessarily constrains the states. In Zschernig v. Miller, 389 U.S. at 434-435, the Court unequivocally held that the exclusive federal authority to regulate foreign relations necessarily means that state or local laws that have more than an incidental or indirect effect in foreign countries or that have "great potential for disruption or embarrassment" of United States foreign policy cannot survive under the Constitution. Zschernig was a challenge to an Oregon probate law that conditioned the right of a nonresident alien to inherit property from an Oregon resident upon that alien's country of origin giving reciprocal rights to a United States citizen and upon that alien's country of origin not confiscating any of the inherited property. Id. at 430-431. Under the state law, Oregon courts searched "for the 'democracy quotient' of a foreign regime," thus intruding impermissibly into "matters which the Constitution entrusts solely to the Federal Government." Zschernig, 389 U.S. at 435, 436.

The breadth and general applicability of Zschernig to the question of allocation of powers between the federal government and the several states has been acknowledged in several subsequent cases. In First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 765 n.1 (1972), Justice Rehnquist, announcing the decision of the Court and writing for himself and two other Justices, characterized Zschernig, as having broadly struck down an Oregon statute because it was "an intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress." (quoting Zschernig at 432) In Goldwater v. Carter, President of the United States, 444 U.S. 996, 62 L.Ed.2d 428 (1979), Justice Rehnquist, concurring in the judgment, again characterized Zschernig as proscribing state actions which "trench upon exclusively federal questions of foreign policy." 444 U.S. 1004, n2. And in Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480 (1983), Chief Justice Burger, writing for a unanimous court, cited Zschernig for the proposition that with respect to "sensitive issues concerning the foreign relations of the United States. . .the primacy of federal concerns is evident." (461 U.S. at 493)

The Massachusetts Burma Law requires the same sorts of impermissible judgments by state officials about a foreign government as were the basis for the holding in Zschernig. The Burma Law is an economic embargo of a foreign nation based on the state's view of "the democracy quotient" of Myanmar. The Burma Law has far more than "an indirect or incidental effect" on Myanmar; its purpose and effect is to create strong disincentives to doing business in Myanmar. The Burma Law is a far more serious invasion of the federal government's foreign relations powers than the Oregon probate law that was at issue in Zschernig; unlike the Oregon statute, which arguably sought to protect the rights of Oregonians who would inherit property abroad, the Burma Law in fact has no purpose other than to impose an economic embargo on a foreign country in an attempt to alter its domestic policies.

The critical point is that selective purchasing laws, such as the Massachusetts Burma Law, involve local legislators, like the state-court judges in Zschernig, in making direct, political judgments about the actions or character of particular foreign governments, often with the purpose of punishing those governments and changing their behavior. Moreover, as demonstrated by the European and Japanese reactions to Massachusetts's Burma Law, such local laws have real consequences for foreign countries and U.S. relations with them, and can engender consequences that affect the interests of the United States as a whole.

The foreign relations impact of the Massachusetts Burma Law is not merely hypothetical. As noted above, the European Union, Japan and the Association of South East Asian Nations ("ASEAN"), comprising some of our largest trading partners and our most reliable military and diplomatic allies, have complained to the United States government that the Massachusetts Burma Law may violate the United States' international obligations. See A.330-332. These diplomatic steps by friendly countries clearly indicate that the Burma Law "affects international relations in a persistent. . .way." Zschernig, 389 U.S. at 440.

The foreign relations implications of the Burma Law are also evident from the growing number of selective purchasing laws in other localities. The briefs of amici supporting Massachusetts reinforce the conclusion that any failure of the federal courts to speak out clearly will aggravate matters; amici City of New York, et al., in supporting Massachusetts, write: "[O]ver the last twenty years, more and more local governments have adopted ethical investment and contracting guidelines for their business affairs" and "U.S. cities have developed an increasingly international presence over the thirty years since Zschernig was decided, and many kinds of local regulations and ordinances arguably now may have more of an effect on foreign countries. . ." City of New York Br. at 4, 14. Twenty-two states or localities have enacted purchasing preferences to avoid doing business with companies that operate in Myanmar; other have enacted measures aimed at other foreign countries. Brief of North Dakota at 9. The purpose of these laws is to limit commerce with "foreign sovereigns having poor human rights records." City of New York Br. at 4-5.

It is this very sort of foreign policy-making by states and municipalities that the Constitution prohibits and the Supreme Court condemned in Zschernig. It is also this kind of interference in national foreign policy activity

that creates serious difficulties for those charged by the Constitution with making and implementing U.S. foreign policy and international trade policy.

CONCLUSION

The judgment of the district court, invalidating the Massachusetts Burma Law as conflicting with exclusive federal foreign affairs powers, should be affirmed.

New York, New York
March 8, 1999

Respectfully submitted,

ATLANTIC LEGAL FOUNDATION, INC.

By:______________________________________
Martin S. Kaufman

205 East 42nd Street (9th Floor)
New York, NY 10017
(212) 573-1960
Attorneys for amici curiae
William E. Brock, Lee H. Hamilton,
Carla A. Hills, George P. Shultz and
Clayton Yeutter

Of Counsel:

Martin S. Kaufman
Edwin L. Lewis, III

WILLIAM E. BROCK was United States Senator from Tennessee from 1971 to 1976; and as a member of the House of Representatives from Tennessee from 1963 to 1970. Senator Brock served as United States Trade Representative from 1981 to 1985, and as United States Secretary of Labor from 1985 to 1987. Senator Brock was instrumental in the expansion of the General Agreement on Tariffs and Trade, and conceived and initiated the Uruguay Round of trade negotiations which led to the creation of the World Trade Organization. He is also the co-editor with Robert Hormats of The Global Economy (1990).

SAM M. GIBBONS served as a member of the United States House of Representatives from Florida for 34 years, from 1962 to 1996. He was Chairman of the House Ways and Means Committee and its Subcommittee on Trade. He was also U.S. Advisor to the General Agreement on Tariffs and Trade and the World Trade Organization. Congressman Gibbons was a primary advocate and sponsor of every major international trade law enacted during his tenure in Congress. He led numerous interparliamentary delegations throughout Europe, Latin America, the Middle East and Asia on issues of trade and economics.

ALEXANDER M. HAIG, JR. served from 1981-1982 as the 59th Secretary of State. From 1970-1972 General Haig was Deputy National Security Advisor. From 1972-1973 he was Vice Chief of Staff of the United States Army. From 1973-1974 he was White House Chief of Staff. From 1974-1979 he served as Supreme Allied Commander Europe and as NATO Commander.

LEE H. HAMILTON served from 1964 to 1997 as a United States Representative from Indiana. During that tenure he served for many years as Chairman of the House Foreign Affairs Committee and as Ranking Democratic Member of the House International Relations Committee; he also served on and as chairman of the Joint Economic Committee of the House of Representatives, and on the Permanent Select Committee on Intelligence.

CARLA A. HILLS served as United States Trade Representative from 1989 to 1993, in which capacity she was a member of President Bush's cabinet and the President's principal advisor on international trade policy, and the nation's chief trade negotiator, representing American interests in multilateral and bilateral trade negotiations throughout the world. Ambassador Hills also served as Secretary of Housing and Urban Development in the Ford Administration.

GEORGE P. SHULTZ has had a distinguished career in public service, emphasizing foreign policy and economic policy. He was United States Secretary of State from 1982 to 1989; during his tenure he played a key role in implementing the foreign policy that led to the successful conclusion of the Cold War and the development of strong relationships between the United States and the countries of the Asia-Pacific region. From 1969 to 1970, Secretary Shultz served as Secretary of Labor. From 1970 to 1972 he was Director of the Office of Management and Budget. From 1972 to 1974 he was Secretary of the Treasury. He has also served as Chairman of the President's Council on Economic Policy, and he negotiated a series of trade protocols with the former Soviet Union, and was the chief U.S. representative at the Tokyo Round of negotiations on the General Agreement on Tariffs and Trade. Secretary Shultz is currently Professor of International Economics at Stanford University . He is the author of several books on diplomacy, economic policy, labor policy, labor markets and labor economics, and business management.

CLAYTON YEUTTER has served in Cabinet and sub-Cabinet under four presidents. He served as United States Trade Representative from 1985-1988, Secretary of Agriculture from 1989-1991, Counselor to the President in 1992. Mr. Yeutter also served as Assistant Secretary of Agriculture and Deputy Special Trade Representative in the 1970s.

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the undersigned certifies that this brief complies with the type-volume limitations of Federal Rule of Appellate Procedure 32(a)(7)(B)(i).

1. Exclusive of exempted portions of the brief, as provided in Federal Rule of Appellate Procedure 32(a)(7)(B)(iii), but including the biographical addendum, this brief includes 6,632 words.

2. This brief has been prepared in proportionally spaced typeface using Corel WordPerfect 6.0 for DOS, in 14 point Times New Roman font. As permitted by Federal Rule of Appellate Procedure 32(a)(7)(C), the undersigned has relied on the word count function of that word processing program in preparing this certificate.

3. This brief was not prepared, written, funded or produced by any person or entity other than amici curiae or their counsel.

New York, New York
March 8, 1999

_______________________________

Martin S. Kaufman

I hereby certify that in this 8th day of March, 1999, two (2) bound copies and one (1) copy on computer diskette of the Brief Amici Curiae of William E. Brock, Sam M. Gibbons, Alexander M. Haig, Jr., Lee F. Hamilton, Carla A. Hills, George P. Shultz and Clayton Yeutter were served by United States Postal Service first class mail, postage prepaid, on:

Thomas A. Barnico, Esq.
Assistant Attorney General
Office of the Attorney General of the
Commonwealth of Massachusetts
Boston, MA 02108-1698

Timothy B. Dyk, Esq.
Jones, Day, Reavis & Pogue
1450 G Street, N.W.
Washington, D.C. 20005-2088

Michael A. Collora, Esq.
Dwyer & Collora
Federal Reserve Plaza
600 Atlantic Avenue
Boston, MA 02210-2211

I also hereby certify that on this 6th day of March, 1999, ten (10) bound copies and one copy on computer diskette of said Brief Amici Curiae were mailed by United States Postal Service Express Mail, postage prepaid, to the Office of the Clerk, United States Court of Appeals for the First Circuit.

New York, New York
March 8, 1999

_______________________________

Martin S. Kaufman