It's About the Constitution, Not Burma

Frank Kittredge
President, National Foreign Trade Council
Vice Chairman, USA*Engage
March, 2000

In 1996, when Massachusetts passed a law that effectively prohibited companies that do business in Burma from doing business with the Commonwealth, they became the first state in the nation to impose sanctions aimed at the repressive military regime in Burma. In doing so, Massachusetts joined a growing list of U.S. cities, including New York, Los Angeles, San Francisco, and Oakland in attempting to influence the behavior of the Burmese government.

While this may sound like a highly ethical and moral expression of concern, it raises significant constitutional questions regarding the right of states and municipalities to engage in foreign policy.

The National Foreign Trade Council, recognizing a growing trend among states and cities to use trade as a weapon to affect foreign governments, was successful in overturning the Massachusetts law in federal court in 1998. This decision was upheld – on broad constitutional grounds – by the Court of Appeals in 1999. The case will be argued before the U.S. Supreme Court on March 22, 2000.

What is at issue in this case is more than the ability of American companies to pursue international opportunities without being subjected to a patchwork of state and local sanctions. The issue boils down to whether U.S. international relations should be subject to the actions of 50 states and thousands of municipalities -- or whether we are better served when our country speaks with one voice.

Our country’s Founding Fathers did indeed recognize the dangers associated with allowing each state to formulate its own foreign policy. The Framers of the Constitution, in their wisdom, recognized that the Articles of Confederation failed to create a unified set of rules for foreign commerce -- but events at the time, made it clear that that the United States needed to have one foreign policy and one set of foreign commercial rules. One of the reasons, therefore, that the new constitution was written in the late 1780s was to prevent attempts by individual states and some regions of the country to negotiate their own commercial arrangements with foreign countries. The ruling by the Court of Appeals upholds this basic principle. Furthermore, the United States Government agrees. In its Supreme Court brief supporting the decisions of the lower courts, the U.S. Solicitor General states: " … the ultimate authority to act on behalf of the United States, and each of its States, in the international arena resides with the President and Congress alone."

Critics of the court ruling however, may say it's the right -- if not the responsibility -- of all Americans to stand up for human rights around the world. We don’t disagree. Public officials at all levels should actively speak out to promote American values, and to let their opinions be known. The strength of our system is that state and local leaders do have an ample public platform to do so, both by direct appeal to federal officials, and through official resolutions, public speeches, the media, and other forums open to them. However, when these expressions of concern take the form of state and local foreign policy sanctions, the line has been crossed and the right of the federal government to conduct a coherent foreign policy has been breached.

When the citizens of any state or city are offended about the Burmese military dictatorship as we agree they should be, the correct approach is to appeal to their federal representatives. After all, who is in charge of developing and implementing U.S. foreign policy -- the Governor of Massachusetts, a city council, or the Congress and President of the United States?