Court leery of Mass. law's policy impact

Justices ponder ban linked to Myanmar rights abuses

March 23, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Massachusetts' move to show its displeasure over human rights abuses in Myanmar -- formerly Burma -- by boycotting companies doing business there ran headlong into a judicial obstacle yesterday: the Supreme Court.

In a one-hour hearing, most of the justices who took an active part appeared to be concerned that the state was trying to use its buying power to conduct foreign policy, a role reserved by the Constitution to the national government.

Only Justice Antonin Scalia spoke up frequently in sympathy for Massachusetts' aim, saying he found nothing in the Constitution "that bars states from trying to influence foreign policy."

Some justices also seemed troubled that a ruling in favor of boycotts by states could lead one state to refuse to do business with another because the other did not have the same policy. For example, the boycotted state might not have the death penalty.

Before yesterday's hearing was over, some of the justices seemed to worry that a decision against Massachusetts might go too far if it had the effect of barring state officials from speaking out against human rights violations.

During the hearing, a crowd of demonstrators -- some carrying large red, yellow and black banners proclaiming "Free Burma" -- milled outside.

The case before the court is the first the court has agreed to hear on state and local governments' authority to use financial gestures to condemn other nations for their policies.

In the 1980s, many states and cities, including Baltimore, moved to divest investments in South Africa. Those actions never came up for a test in the Supreme Court, but they were discussed yesterday as part of the background to the "Burma law" test case.

Massachusetts, with the support of 14 states including Maryland, several cities and counties, human rights groups and members of Congress, is appealing to try to revive its 1996 "Burma law."

Nullified by a lower court, that law cut off most state purchases from companies that do business with Myanmar. The aim was to put pressure on the military government there for its "highly authoritarian" practices, including "serious human rights abuses."

Justice Sandra Day O'Connor reminded the state's lawyer, Thomas A. Barnico, that "Congress has enacted a law to deal with trade with Burma." Barnico said that law "says nothing about state and local actions."

The attorney said Congress has the power to oversee such actions and bar them if it wishes. It has not done so. Justice Anthony M. Kennedy countered, "I am not sure Congress can conduct this ongoing oversight of all local laws."

Justice Ruth Bader Ginsburg said that, while Barnico was arguing that states could attempt to influence foreign governments unless Congress stopped them, perhaps it should be assumed that states could not do so unless Congress first gave them permission.

Massachusetts is relying partly upon what it considers the more than two-century old American tradition, dating back to Revolutionary times, of boycotting to influence other nations.

But Chief Justice William H. Rehnquist noted that those days preceded the Constitution, with its grant of foreign policy power to the national government.

Timothy B. Dyk, a Washington lawyer representing the National Foreign Trade Council, an opponent of the state law, argued that there were no boycotts of foreign governments after the Revolution, until Massachusetts passed its Burma law.

While Dyk said the withdrawal of state investments in South Africa in the 1980s were different from boycotts, those, too, probably were unconstitutional.

A final ruling is expected by early summer.

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