The NFTC and certain amici curiae argue that AState Department officials have recognized that the [Burma] Law and similar statutes intrude into federal foreign policy.@ NFTC Br. at 8. This argument relies on selected statements by subordinate officials of the State Department and ignores the more specific expression of Executive policy made by the Secretary of State on behalf of the President in April, 1998, to the National Conference of State Legislatures. At that time, the Secretary of State said that she and APresident Clinton recognize the authority of state and local officials to determine their own investment and procurement policies, and the right -- indeed their responsibility -- to take moral considerations into account as they do so.@ Statement of April 17, 1998 (copy attached). If precatory statements by the Executive are relevant to this case at all, the specific statement of the Secretary quoted above should be given more weight than the general statements of policy cited by the NFTC. Cf. Barclays Bank PLC v. Franchise Tax Board, 512 U.S. 298, 330 n.32 (1994)(AExecutive statements criticizing @ state taxes held not to overcome A Congress acquiescence in the States actions).

Deciding this statutory question first would properly focus the judicial inquiry on the legislative branch of the federal government and would also reconcile the decisions of the Supreme Court in Barclays and Zschernig v. Miller, 389 U.S. 429 (1968). Contrary to the argument of the NFTC (Br. at 27), Massachusetts does not ask the Court to Zschernig in light of Barclays but rather to reconcile the cases by first deciding the statutory question whether Congress has implicitly permitted, Acondoned@ (id. at 330), shown Aacquiescence@ in (id. at 330 n.32) or a Awillingness to tolerate@ (id. at 327) the Burma Law. If Congress has done so, there is no need to reach the constitutional question decided in Zschernig.

The statutory question should be decided first for three additional reasons. First, claims under the foreign affairs power and the Aone-voice@ test under the Commerce Clause are substantially the same (see Comm. Br. at 46-49); Zschernig was cited in the briefs of both parties in Barclays and in the oral argument of the United States as amicus curiae in that case. See 1993 WL 639306 (petitioner), 1994 WL 135983 (respondent), and 1994 WL 664950, p. 13 (U.S.).

Second, applying Barclays to the statutory question in this case is supported by the Aact of state@ cases cited by the NFTC, such as Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). NFTC Br. at 19-21. Congress may modify judicial decisions under the act of state doctrine, (see Banco Nacional de Cuba v. Farr, 243 F. Supp. 957, 972 (S.D.N.Y 1965), aff=d, 383 F.2d 166, 180-81 (2d Cir. 1967), cert. denied, 390 U.S. 956 (1968)); this legislative authority shows that in cases involving foreign affairs, the Court must first judge the import of relevant congressional action or inaction.

Third, applying Barclays to the statutory question before applying Zschernig maintains the separation of powers and prevents branch-shopping for precatory statements of policy. The statements of current and former executive officials cited by the NFTC (see Br. Amici Curiae William E. Brock, et al.) -- like the similar statements relied on by the bank in Barclays -- do not carry the force of law. Even if such statements were relevant to the constitutional question decided in Zschernig, judicial review must focus on Congress because the AConstitution does not make the judiciary the overseer of our government.@ Barclays, 512 U.S at 330 (quotation omitted). Barclays and Zschernig may be reconciled and applied in this case by deciding the statutory question first.

Congress in 1996 -- months after enactment of the Massachusetts Burma Law and similar local laws -- specifically imposed sanctions on Burma but took no action to preempt state and local laws. See id. at 9-11. Where the federal government contemporaneously considers and addresses the same subject of foreign affairs but does not expressly preempt state and local action, the Court should infer an intent to permit such action. See Wardair Canada, Inc. v. Dep=t of Revenue, 477 U.S. 1, 4, 7-13 (1986).

' 102(c)(1), 108 Stat. 4809, 4818, 19 U.S.C. '' 3512(b)(2)(A), 3512(c)(1). In the URAA, Congress stated its Aintention@ to Aoccupy the field with respect to any cause of action . . . in connection with the Uruguay Round Agreements.@ 19 U.S.C. ' 3512(c). Furthermore, in approving the AStatement of Administrative Action@ proposed by the President for implementation of the URAA (see 19 U.S.C. '' 3511(a) and 3512(d)), Congress stated that the denial of all private rights of action extends to those that Aseek, directly or indirectly, the private enforcement of [GATT],@ including suits Abased on Congress= Commerce Clause authority.@ 1994 U.S.C.C.A.N. at 4055. This and other legislative history cited by the Commonwealth (Br. at 28-29) establish that Congress has implicitly permitted the Burma Law. See also Br. Amici Curiae Center for Constitutional Rights, et al. (Congressional permission further shown by authority reserved to the States in international human rights treaties ratified by the United States Senate).

In response, the NFTC argues that Congress did not express its intent to permit the Burma Law with Aunmistakable clarity.@ NFTC Br. at 49. But the NFTC=s quote from Barclays is incomplete: the Court said that in cases involving the Aone-voice test@ under the Foreign Commerce Clause -- the test most closely akin to the rule in Zschernig -- Congress Aneed not convey its intent with the unmistakable clarity required to permit state regulation that discriminates against interstate commerce . . . .@ Barclays, 512 U.S. at 323 (emphasis added). For purposes of the NFTC=s claim under the foreign affairs power and the Aone-voice@ test, the Court should first decide the question of congressional intent and resolve it in favor of the Burma Law.

The NFTC repeatedly asserts that the Asole@ purpose of the Burma Law is to Ainfluence change in Burma.@ NFTC Br. at 22, 35. While the Commonwealth agrees that one purpose of the Burma Law is indirectly to encourage change in Burma, that is not the only purpose of the Law. The Law is also intended to disassociate the Massachusetts government and its tax dollars from the violations of human rights in Burma. See A. 113 (remarks of Sen. Walsh)(prior to enactment of selective purchasing law on South Africa, Massachusetts had become a Aparty and unwitting conspirator@ to human rights violations); 114 (prior to enactment of Northern Ireland law, Massachusetts had Asubsidiz[ed] bad practices through [its] contracts@). There is no question on this record that the Massachusetts Legislature would have enacted the Burma Law even if it believed that it could not indirectly effect change in Burma. As the Secretary of State has recognized, the Legislature has a legitimate interest in applying Amoral considerations@ to its Aprocurement policies.@ In light of this legitimate local purpose, the Court must sustain the Burma Law against the NFTC=s facial attack even if the Court finds that Massachusetts may not legitimately seek to influence change in Burma. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48 (1986) (ACourt will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive@)(Awhat motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it@). Even if State or local governments may not constitutionally encourage change in foreign countries through selective purchasing laws, such laws must be upheld against a facial attack because they are a valid exercise of the right to disassociate from dictators and their works. See generally U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, Burma Country Report on Human Rights Practices for 1998 (February 26, 1999), http://www.state.gov/www/global/

The district court applied Zschernig and concluded that the AMassachusetts Burma Law has more than an indirect or incidental effect in foreign countries and a great potential for disruption or embarrassment.@ A. 595 (quotation marks omitted). In its opening brief in this Court, the Commonwealth distinguished Zschernig and showed why the complaints of Europe and Japan under a trade agreement do not establish the unconstitutionality of the Burma Law. In its response, the NFTC invokes Zschernig for a rule of decision that would jeopardize scores of state and local laws that seek to divorce local governments and tax dollars from association with dictators. See NFTC Br. at 22-36.

The district court could have avoided this significant constitutional problem by holding that Zschernig simply does not apply to the single Adeclaration of independence@ embodied in selective purchasing laws, whatever the other purported Agoals@ of such laws. Whether or not selective purchasing laws are protected Amarket participation@ (see Comm. Br. at 45-55), their indirect foreign effects in this case -- the withdrawal of some companies from Burma, the trade complaints of Europe and Japan -- do not change their nature or create the type or level of foreign disturbance that concerned the Court in Zschernig.

In failing to distinguish Zschernig, the court below and the NFTC have urged and adopted a broad rule of constitutional law that will jeopardize the action of all state and local governments Awhen[ever] their actions affect significant issues of foreign policy.@ NFTC Br. at 14, 15. Indeed, the NFTC appears to advance a rule that would bar any state or local government from taking any official position regarding the action of a foreign government, if third parties such as multinational corporations or other foreign countries react (or could react) adversely to that position.

Nothing in Zschernig suggests such a broad rule, certainly not the third-party veto implied by the NFTC. Zschernig simply does not address the foreign resonances of a selective purchasing law, a divestment law, or a resolution by a state and local government on a subject of foreign affairs. While the NFTC now cautiously suggests that divestment laws have an Aimpact@ Aevidently less@ than selective purchasing laws, it was more candid in its oral argument below. There it suggested that even resolutions may be unconstitutional. A. 573; see also NFTC Br. at 6 (Burma Law invalid because it intends to Asend a political message@).

In such an era, the Court should uphold state laws that reflect the exercise of reserved powers, even when such laws are intended in part to have foreign effects, where, as here, the laws do not violate Article I, ' 10, of the Constitution and Congress has acquiesced. The alternative rule implied by the NFTC -- that the Constitution compels state and local governments to trade with dictators -- is utterly inconsistent with that document=s plainest terms and highest ideals.

While the District Court did not reach the issue, the NFTC argues that the judgment should be affirmed because the Burma Law violates the Foreign Commerce Clause. For the reasons stated in the Commonwealth=s opening brief, the Court should reject the NFTC=s claims of discrimination and extraterritorial effect because the Burma Law is Amarket participation@ immune from such claims. See Comm. Brief at 45-55; Brief of North Dakota, et al., Amici Curiae. Even if the Burma Law is not deemed by the Court to be market participation, however, the Law does not violate the Foreign Commerce Clause because (1) Congress has implicitly permitted the Law (see Arg. I.B and I.C, above); (2) the Law does not discriminate against foreign commerce and in favor of local interests (see Comm. Br. at 56-58); (3) it has a legitimate local purpose: to reflect the moral judgment of Massachusetts that it will not associate itself or its tax dollars with dictators and their works (see Arg. I.D, above); and (4) its alleged Aextraterritorial@ effects are not so Aprofound and inevitable@ as to invalidate the law on its face. See Scariano v. Justices of the Supreme Court of Indiana, 38 F.3d 920, 928 (7th Cir. 1994), cert. denied, 515 U. S. 1144 (1995).

First, the standard of review of a preemption claim is not Astrict scrutiny@ of the state law. NFTC Br. at 59. Despite the foreign resonances of the Burma Law, the burden remains with the NFTC to show that Congress has clearly stated its intent to preempt. See Comm. Br. at 22-25; De Canas v. Bica, 424 U.S. 351, 357, 363 (1976) (upholding state statute restricting employment of illegal aliens, despite federal government=s broad authority over immigration) (distinguishing Hines v. Davidowitz, 312 U.S. 52 (1941), on ground that in DeCanas there was Aaffirmative evidence that Congress sanctioned concurrent state legislation@); see also Itel Containers International Corp. v. Huddleston, 507 U.S. 60, 67, 69, 71 (1993)(federal laws governing importation of containers did not intend Ato foreclose any and all concurrent state regulation or taxation of containers@; tax upheld despite complaints by eleven nations). State procurement is not an area of Aunique federal interest@ that warrants a different standard of review of a preemption claim. See NFTC Br. at 58.

Third, there is no actual or potential conflict between the state and federal laws. Each of the federal sanctions is intended by Congress and the President Ato bring democracy to and improve human rights practices and the quality of life in Burma, including the development of a dialogue between the State Law and Order Restoration Council (SLORC) and democratic opposition groups within Burma.@ P.L. 104-208, ' 570(c); see also A. 354 (State Department official describes Ashared goal@ of federal and state action); A. 419 (Secretary of State opines that Ait is only right that Burma is subject to international sanctions and consumer boycotts@).

The Burma Law does not stand as an obstacle to the means chosen by the United States to reach the shared goal of human rights in Burma. Nothing in the Burma Law impedes enforcement of the federal ban on Anew investment@ by United States persons; the Burma Law does not, for example, authorize investments prohibited by federal law. Rather, United States companies may easily comply with both state and federal restrictions. Nor does the state law interfere with federal policy toward foreign companies, because the federal sanctions do not apply to foreign companies at all. See Philip Morris, Inc., 122 F.3d 58, 83 (1st Cir. 1997)(no conflict because prohibitions in federal law apply only to federal officials). Conversely, the state law generally permits United States firms to continue to conduct foreign trade in goods and services not prohibited by federal law, because the price preference imposed by the Burma Law applies only to procurement by state agencies in Massachusetts. Thus, nothing in the Massachusetts Burma Law even affects -- let alone impedes -- the implementation of the federal sanctions. See Kargman v. Sullivan, 552 F.2d 1, 10 (1st Cir. 1977) (no preemption even if the state law is a Aperceivable source of irritation,@ or even where Athe potential for serious differences@ may Agenerally complicate unduly@ a federal agency=s Aadministration@ of its Aprogram@).

Nor may the NFTC establish a conflict by its claim that the federal actions embody a Ajudgment@ about the proper balance between sanctions and economic ties. NFTC Br. 60-62. The NFTC argues, in effect, that Congress and the President have struck a balance between sanctions and trade that is unconstitutionally disturbed by any and all state and local procurement laws that differ from the federal sanctions.

This Court rejected a similar argument in Philip Morris, Inc. v. Harshbarger, 122 F.3d at 78-85. There the tobacco industry argued that federal law embodied a congressional Ajudgment@ about the proper balance between public health education and trade secrets in tobacco products, and that the Massachusetts Tobacco Disclosure Law -- which requires submission of information not required by federal law, and authorizes its release upon certain findings by the state public health agency and attorney general -- upset the balance struck by Congress.

The Court noted that A[t]opics that warrant congressional legislation necessarily entail issues of national concern.@ Id. at 80. AThat cannot mean, however, that every federal statute ousts every related state law.@ Id. AMoreover, the mere fact that a subject of federal legislation requires an intricate and complex response from the Congress does not necessarily indicate that Congress intended its response to be the exclusive means of addressing the issue.@ Id. (quotation marks and citations omitted). The Court identified the central purpose of the federal law not as promoting trade in tobacco products but rather as preempting nonuniform advertising regulations and increasing health education about tobacco ingredients. Even the federal statute=s express statement of general concern Afor protecting commerce and the national economy@ did not preempt the state disclosure law, but merely Acreate[d] some general tension with a federal law=s abstract objectives.@ Id. at 82 (citations omitted). The Court stated that Aeven assuming that state law somehow alter[s a] purported balance, . . . the question is not whether a congressionally calibrated system is altered by state law, but if altered, whether the change obstructs the purpose of Congress.@ Philip Morris, Inc., 122 F.3d at 85 (emphasis in original; quotation omitted).

Here, the controlling purpose of the federal law is to promote human rights for the people of Burma. As the defendants show above, the Massachusetts Burma Law furthers this purpose. Conditions in Burma may improve if companies that withdraw from Burma decrease economic support for the current regime, or if companies that remain press the regime for reform. Any effects of the Massachusetts Burma Law on the purported federal Abalance@ between trade and sanctions would not frustrate but rather further the controlling purpose of federal law, which is to promote the human rights of the people of Burma.

Finally, the Court should reject the NFTC=s claim that the Burma Law Aconflicts with federal law because federal law calls for a multilateral strategy to foster democracy@ in Burma. NFTC Br. at 62-63. This point does not establish preemption for three reasons. First, as the District Court noted (A. 601), the federal act and related State Department reports demonstrate that the United States has imposed unilateral sanctions on Burma. See 142 Cong. Rec. S8752-8753 (U.S. Amaintain[ed] a range of unilateral sanctions and d[id] not promote U.S. commercial investment ties with Burma@); A. 338 and n.1 (describing unilateral sanctions). Second, the NFTC=s point is further undermined by its own statement that the federal law on Burma Adoes not make the new investment ban contingent on multilateral agreement.@ A. 370. NFTC=s affiliate, USA-Engage, has similarly cited the unilateral nature of recent United States foreign policy, stating that A[i]n just four years the United States has imposed 61 unilateral economic sanctions on 35 countries . . . .@ A. 370; see also A. 356, 358-361 (describing specific United States policies toward countries including Burma as Aunilateral sanctions@). These statements discredit the NFTC=s current view that federal policy toward Burma is exclusively multilateral. To the contrary, the most reasonable reading of the record is that the United States has chosen to use both unilateral and multilateral tools to achieve reform in Burma.

Finally, the Comprehensive Anti-Apartheid Act of 1986 and Board of Trustees v. Mayor and City Council of Baltimore, 592 A.2d 720, 740-44 (Md. 1989), show that even when Congress is aware of state and local restrictions, it does not view them as inconsistent with a multilateral strategy to improve human rights. In the 1980's, selective purchasing and divestment laws enacted by state and local governments sparked broader multilateral action. The NFTC and its amici virtually ignore this Apage of history,@ but it is worth a Avolume@ of their logic. Congress has wisely left the States free to reprise their 1980's role; the Court should not disturb that choice.

For the reasons stated above and in the Commonwealth=s opening brief, the judgment of the District Court should be reversed.