Amicus Curiae Brief — Crosby v. National Foreign Trade Council

Eupreme Court, Ty

Tan (13 Oo (ZY | FILED

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IN THE

Supreme Court of the United States

October Term, 1999

ANDREW S. NATSIOS, SECRETARY OF ADMINISTRATION AND

FINANCE OF THE COMMONWEALTH OF MASSACHUSETTS,

AND PHILMORE ANDERSON, III, STATE PURCHASING AGENT,

Petitioners,

V.

NATIONAL FOREIGN TRADE COUNCIL,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the First Circuit

BRIEF AMICUS CURIAE OF COALITION FOR

LOCAL SOVEREIGNTY IN SUPPORT OF PETITIONER

Kenneth B. Clark*

COALITION FOR’ LOCAL

SOVEREIGNTY

611 Pennsylvania Ave, SE # 169

Washington, DC 20003

(301) 579 - 6100

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES TT

STATEMENT OF CASE |

INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT 4

I. Framers viewed the States as having an

important role in the foreign policy debate

and saw the foreign powers of the federal

government as not extending to internal,

domestic issues. 4

Il. States may exercise any power not

“absolutely and totally CONTRADICTORY

and REPUGNANT” to powers exercised

by Congress. 6

Ill. State policy must DIRECTLY affect

foreign countries to be regarded as

engaging in foreign policy. 10

1. Clark v. Allard affirms indirect standard — 10

2. ZSCHERNIG v. MILLER upholds the

“indirect” standard. 12

<= ee

TABLE OF AUTHORITIES

IV. This Court in the past has carefully

protected the autonomy of local communities, Constitutional Provisions & Founding Documents

to make decisions such as in the Mass-

achusetts Burma Law. 13 US Const. Art | sec 8 8-9

US Const. Art 1, sec 10 8-9

V. The First Circuit ruling threatens to , US Const. Amdt. | 15

undermine many areas of lawmaking which US Const. Amdt. 10 15

this Court has previously ruled as being the Decl. of Independence, Jefferson, et al 16

exclusive province of the States. 14 The Federalist, Hamilton, Madison & Jay §-9

Kentucky & Virginia Res., Madison & Jefferson 2-6

1. Alleged Unlimited Nature of Foreign

Policy would dissolve the distinction between Cases

what is internal and what is external. l

. Clark v. Allard 33\ US 303 110-13

Gibbons v. Ogden, 9 Wheat. 1, 6 8-9, 18

2. Expansive Reading of Foreign Com-

merce Clause runs afoul of this Court’s Michelin Tire v. Wages, 423 US 276 19-20

recent narrow reading of interstate NLRB vy. Jones & Laughlin Steel, 301 US 893 18

commerce clause. 18 Printz v. US, 117 $.Ct. 2365 22

US v. Curtiss-Wright Export, 299 US 304 15-17

3. The “speak with one voice” theory was US v. Lopez, 514 US 549 18

never more than a metaphor, which, taken US v. Container Corp, 463 US 159 20

literally, could undermine important local Zschernig v. Miller, 389 U.S. 429 Ie

expression. 19

CONCLUSION 24

STATEMENT OF CASE

The Commonwealth of Massachusetts has

adopted a policy of giving preference in state contracts to

companies which do not do business in Burma. Does a

state or local government's decision to have purchasing

decisions reflect the community’s disapproval with the

actions of domestic companies or foreign governments

violate any constitutional restriction?

INTEREST OF AMICUS CURIAE'

Coalition for Local Sovereignty is made up of

state and local officials, as well as concerned citizens,

working to uphold the principle of local self-government

and community based decision making. As the only

national organization dedicated exclusively to the

restoration of local self-government, we possess a unique

perspective on such cases.

Counsel to the petitioner, Commonwealth of

Massachusetts, and counsel to the respondent, National

Foreign Trade Council, have consented to the filing of

this amicus brief.

SUMMARY

The traditional standard for determining the

constitutionality of a local policy which has some effect

on foreign countries was expressed quite clearly in (/ark

v. Allard (331 US 303) which ruled that the California

statute being contested as an exercise of alleged foreign

policy “will have some incidental or indirect effect in

' This brief was authored by counsel for Coalition for Local

Sovereignty, no other person has made any monetary contribution for

its preparation or submission.

2

foreign countries. But that is true of many state laws

which none would claim cross the forbidden line."

The First Circuit decision, in effect, rejects this

standard, ruling that a local law which has only "indirect

effect" on foreign countries is unconstitutional. If upheld

this new standard threatens "many state laws which none

would [otherwise] claim cross the forbidden line."

The decision of the Appeals Court infringed upon

the constitutionally protected autonomy of state and local

government in several important areas:

1) The decision considers all matters "relating to

foreign commerce" as areas of exclusive federal

legislation. There are very few things (if anything)

which is not in some way related to foreign commerce.

Like the argument that anything the least bit "related to

interstate commerce" is an area of federal jurisdiction,

such a broad interpretation threatens to bring everything

under federal jurisdiction and transform the federal

government from one of limited jurisdiction into one of

unlimited jurisdiction.

2) The decision takes an extreme position that the

United States must "speak with one voice" and that state

and local governments may not do anything which might

be "embarrassing" to the United States on the

international level. This reading threatens to undermine a

whole host of activities traditionally carried on by local

governments and their leaders. Sister-city and sister-state

programs, unofficial negotiations of governors and

mayors with foreign leaders for investment, and even

state and local resolutions expressing the sense of the

legislature on matters of international concern are all

seemingly condemned by NFTC. Since Virginia and

Kentucky passed Resolutions condemning the Alien and

3

Sedition Acts of 1798 it has been established that the

states have an important role to play in the foreign policy

debate. That local governments may make statements or

take actions which are embarrassing to the US

government is part of living in a free society.

3) The decision takes the radical step of

suggesting that federal laws preempt local laws on the

same topic, even when there is no contradiction between

the two. With few exceptions, it has always been

understood that state and local laws have force so long as

they do not contradict a valid federal law. Such a radical

interpretation threatens to seriously undermine the

decision-making ability of local governments.

4) The First Circuit declares that "the

Commonwealth has crossed the line from market

participant to market regulator." Not only is this based

on an absurdly stretched definition of "regulation" (on

which the entire decision rests) but it threatens to

undermine purchasing decisions of all sorts. For

example, when state boards of education approve certain

guidelines for textbooks (especially if it is a large state)

book publishers invariably change the content of their

books to conform. These same text books are usually

sold to schools in other states. The NFTC decision

would have us conclude that such actions constitute an

impermissible attempt to "REGULATE conduct beyond

its borders." The fact is that purchasing decisions by

large consumers (whether states or large companies)

affect production and distribution decisions in other

states and other countries. An upholding of the position

of the First Circuit could subject local governments to

frivolous lawsuits for almost any purchasing decision

4

ARGUMENT

I. Framers viewed the States as having an important

role in the foreign policy debate and saw the foreign

powers of the federal government as not extending to

internal, domestic issues.

In 1798 when Congress passed the Alien and

Sedition Acts, James Madison and Thomas Jefferson

authored Resolutions in Kentucky and Virginia which

declared that these Acts could not be enforced in either

state. Many people at the time regarded these actions by

the states as interference in foreign affairs that ought to

be left up to Congress. While the Supreme Court never

ruled on either the Acts or the Resolutions, the

subsequent election of Jefferson and Madison to the

presidency, and the judgement of history has been that

they were right to oppose these Congressional excesses.

These resolutions also expressed the unequivocal

view of Madison and Jefferson that, whatever powers the

federal government might possess to engage in foreign

policy, those powers did noi extend to the regulation of

affairs internal to the states themselves.

To cite just one example, Jefferson declared in the

Kentucky Resolutions that “alien friends are under the

jurisdiction and protection of the law of the State wherein

they are: that no power over them has been delegated to

the United States." Madison and Jefferson did not

question that the federal government had surisdiction to

set rules for naturalization -- the provisions extending the

length of time a person had to reside in the United States

before becoming a citizen they did not like, but never

challenged as _ unconstitutional. Other than the

naturalization provision Madison and Jefferson rejected

the idea that Congress could deport aliens for criticizing

5

US policy, or that the federal government possessed any

jurisdiction for regulating the conduct of aliens once they

took up legal residence in the United States.

The Virginia and Kentucky Resolutions are also

of great significance in the current debate because they

help to put into better context certain writings of

Madison in the Federalist Papers which the Appeals

Court has cited -- incorrectly -- in support of its ruling.

The First Circuit decision cited Madison's words that

"(t]he powers delegated by the proposed Constitution to

the federal government are few and defined’ and ‘will be

exercised principally on external objects, as war, peace,

negotiation and foreign commerce.” It is almost

inconceivable that anyone could take these words as

supporting the court's opinion, but so the majority

opinion suggests.

There can be little doubt, when Madison's

writings elsewhere are taken into account -- especially

the above cited Resolutions -- that what Madison means

by "external objects" certainly do not extend to matters

which occur inside the boundaries of the States.

Again citing a statement of Madison out of proper

context the court takes as a major support for its position

the phrase that "[i]f we are to be one nation in any

respect, it clearly ought to be in respect to other nations"

(Fed 42). Once again, however, it is quite clear that

Madison is referring to external functions and policies,

and certainly not to matters internal to the States.

Similar statements by Alexander Hamilton are

also twisted by the First Circuit in an attempt to support

its ruling. The First Circuit noted Hamilton's view that

"the Articles of Confederation, by failing to contain any

‘provision for the case of offences against the law of

nations,’ left ‘it in the power of any indiscreet member to

embroil the Confederacy with foreign nations."

6

Hamilton is discussing acts of piracy or terrorism

which are protected by a country's refusal to prosecute

them. Throughout history there have been cases such as

that which started the First World War, when Serbia

refused to prosecute a terrorist, and today with Libyan

terrorists which the Libyan government protected. This

sort of violation of the law of nations is so far removed

from the sort of action being carried on by Massachusetts

in the current case as to be almost laughable in

comparison.

Il. States may exercise any power which is not

“absolutely and totally CONTRADICTORY and

REPUGNANT” to powers exercised by Congress.

Any fair reading of the Constitution makes plain

that the setting of a state's purchasing decisions is a

power entirely reserved to the state. (Indeed, a strict

reading of the Constitution -- and the explicit statement

of Madison and Jefferson in the Resolutions -- demands

that while the federal government may be able to declare

an embargo on a foreign country, and it may attempt to

stop the importation of such goods into the United States,

nevertheless, once having arrived here the federal

government possesses no police power to prosecute any

person or entity for purchasing those goods on the

domestic market.)’

? »The Constitution of the US, having delegated to Congress power

to punish treason, counterfeiting the securities and coin of the

United States, piracies and felonies on the high seas, and offenses

against the law of nations, and no other crimes whatsoever, all other

ucts which assume to create define or punish crimes, other than those

So enumerated in the Constitution are altogether void, and of no

force.” Kentucky Resolution of 1799.

a

7

Hamilton in the Federalist Papers lays out quite

clearly to what extent state sovereignty is reserved under

the new Constitution:

the plan of the convention aims only at a partial

union or consolidation, the State governments

would clearly retain all the rights of sovereignty

which they before had, and which were not, by

that act, EXCLUSIVELY delegated to the United

States. This exclusive delegation, or rather this

alienation, of State sovereignty, would only exist

in three cases: [1] where the Constitution in

express terms granted an exclusive authority to

the Union; [2] where it granted in one instance an

authority to the Union, and in another prohibited

the States from exercising the like authority; and

[3] where it granted an authority to the Union, to

which a similar authority in the States would be

absolutely and totally CONTRADICTORY and

REPUGNANT [emphasis original].

Hamilton then immediately continues, and should be

highlighted because it seems to describe precisely what is

at issue in the current case:

I use these terms [absolutely and totally

CONTRADICTORY] to distinguish this last case

from another which might appear to resemble it,

but which would, in fact, be essentially different;

I mean where the exercise of a concurrent

jurisdiction might be productive of occasional

interferences in the POLICY of any branch of

administration, but would not imply any direct

contradiction or repugnancy in point of

constitutional authority.

8

Hamilton's words here have immediate and

obvious application to the current case. That a state

policy may produce embarrassment to the US

government or produce “occasional interferences in the

POLICY" of the US government does not invalidate state

sovereignty.

As if the authority of The Federalist is not

sufficient we might also note that this specific tripartite

scheme of determining whether or not a grant of power is

exclusive to the federal government has also been

affirmed by this Court, most notably in Gibbons vy.

Ogden.’

The First Circuit opinion relies upon the premise

that the exercise of article 1 section 8 foreign powers by

Congress is contradictory to any similar power in the

states. Article 1 section 10, as authoritatively interpreted

by Gibbons, indicates otherwise. As the Court noted in

Gibbons "limitations of a power furnish a_ strong

argument in favor of the existence of that power, and the

section [I, 10] which prohibits the states from laying

duties on imports or exports, proves that this power

might have been exercised, had it not been expressly

forbidden."*

*“An affirmative grant of power is not exclusive, unless in its own

nature it be such that the continued exercise of it by the former

possessor is inconsistent with the grant" (Gibbons v. Ogden, 9

Wheat. 1, 6).

* Hamilton makes a similar comment in Federalist 84 noting: “why

declare that things shall not be done which there is no power to do. .

. the Constitution ought not be charged with the absurdity of

providing against an abuse for which no power ts given.” These

comments Were made in noting why a “Bill of Rights” was

unnecessary, but show the attitude of Hamilton and the other Framers

3

9

Again, this Court said that the various

prohibitions on state actions contained in article | section

10 are actions which are not prohibited by the positive

enumeration of similar powers to Congress in Article |

section 8, and could have been exercised by the states if

not specifically prohibited by I, 10.

What are some of these restrictions found in I, 10:

“No state shall enter into any Treaty, Alliance or

Confederation; grant letters of Marque and Reprisal . . .

lay any Imposts or Duties on Imports and Exports.”

Gibbons noted that "a state might impose duties on

exports and imports, if not expressly forbidden [by 1,

10]."

If as this Court ruled in Ogden, neither the

“foreign commerce power” nor the treaty making power

of Congress prohibit a state from making treaties or

imposing duties then all the more it must be true that the

type of activity under dispute in the current case cannot

possibly run afoul of the foreign commerce clause or the

foreign policy powers of Congress.

This analysis of Art 1 section 10 makes clear the

nature of what Hamilton and the other Framers believed

was is "absolutely and totally CONTRADICTORY and

REPUGNANT."

I, 8 gives Congress power "to grant letters of

marque and reprisal, and makes rules concerning captures

on land and water, and to levy imposts and duties. But

these things were then later prohibited to the states by

section 10, showing that the Framers did not think that

the exercise of such powers by the states was “absolutely

and totally CONTRADICTORY and REPUGNANT” to

those powers granted to Congress.

that explicit prohibitions were unnecessary — and even dangerous —

unless targeted to otherwise existing powers.

10

The prohibition on states levying imposts or

making treaties is not based on section I, 8 (as the First

Circuit seems to suggest) but is based upon 1, 10. Any

challenge to the Massachusetts Burma law as

unconstitutional will need to based upon an interpretation

of I, 10 — and such an argument cannot be made.

Ill. State policy must DIRECTLY affect foreign

countries to be regarded as engaging in foreign policy.

1. Clark y. Allard affirms indirect standard

The case most similar to the present one, and the

most important precedent for it is clearly Clark v. Allard.

As now, a state statute which sought to "promote" or

encourage certain policies in foreign countries was

challenged. As the Court summarized it:

The challenge to the statute is that it is an

extension of state power into the field of foreign

affairs, which is exclusively reserved by the

Constitution to the Federal Government. ... The

argument is that by this method California seeks

to promote the right of American citizens to

inherit abroad by offering to aliens reciprocal

rights of inher‘tance in California. Such an offer

of reciprocal arrangements is said to be a matter

for settlement by the Federal Government on a

nation-wide basis.

The Court in Clark, however, not only rejected this

argument, but even ridiculed it, ruling:

In Blythe v. Hinckley, California had granted

aliens an unqualified right to inherit property

within its borders. ... The argument was that a

I —_

11

grant of rights to aliens by a State was, in absence

of a treaty, a forbidden entry into foreign affairs.

The court rejec.ed the argument as being an

extraordinary one. The objection to the present

statute is equally far fetched.

This Court concluded that "What California has done

will have some incidental or indirect effect in foreign

countries. But that is true of many state laws which none

would claim cross the forbidden line."

The ruling in Clark, therefore, is that even in

cases where a local statute is designed to promote or

change certain policies of other countries, such statutes

are perfectly constitutional so long as the laws result in

EITHER incidental OR indirect effect in foreign

counties.

The First Circuit opinion while purporting to

accept this standard states repeatedly that the action of

Massachusetts is "more than incidental or indirect." This

statement indicates that the First Circuit either does not

know the meaning of the word "or" or else it does not

know the meaning of the word "indirect." The word "or"

is a conjunction denoting alternatives. The First Circuit

appears to hold the Massachusetts law up to a standard

that the effect must be BOTH incidental AND indirect.

This is clear misreading of Clark.

Alternatively, the First Circuit must not

understand the meaning of the word "indirect" for it is

impossible for a cause to be “more than indirect."

Logically a cause is either direct or indirect. It does not

seem that anyone maintains that the Massachusetts policy

has any DIRECT effect on conditions in Burma. It

directly affects companies that wish to do business with

the Commonwealth, and these companies may in turn

may decide not to do business in Burma. Thus any effect

12

of the Massachusetts law on Burma can only be said to

be "indirect."°

2. ZSCHERNIG v. MILLER (389 U.S. 429) upholds

the “indirect” standard.

The ruling in Zschernig upholds the standard that

state laws are constitutional which have only an indirect

effect in foreign nations. The ruling in Zschernig

concluded specifically that "The present Oregon law _. .

has a direct impact upon foreign relations." (Emphasis

added) The penultimate sentence of the opinion thus

declares unequivocally that the effect of the law in

dispute there was "direct," thus running afoul of Clark's

standard that laws which "indirectly" affect foreign

policy are permissible.

A quick summary of the issues in Zschernig

shows both the fundamental difference with

Massachusetts’ Burma Law, and also clarifies what sorts

of things might qualify as engaging in "foreign policy."

The Oregon law in Zschernig applied only to the

transmittance of property to nonresident aliens, thus it

only applied directly to persons outside of the country.

The opinion in Zschernig suggested that the specific

areas where the state of Oregon trespassed on powers

ceded to the federal government was in "the control of

the international transmission of property, funds, and

credits, and the capture of enemy property."

* A cause 1s direct when it brings about an effect immediately,

necessarily and without intermediary. While the Massachusetts

policy is designed to affect the action of Burma it depends upon the

action of intermediaries to accomplish that end. Philosophers also

speak of direct and indirect causes as "proper or remote" und as “per

se or accidental.”

a

13

In stark contrast, the Massachusetts law does not

affect "the international transmission of property, funds,

and credits, [or] the capture of enemy property" rather it

affects only businesses “within” Massachusetts. The

California law challenged in Zschernig "directly" (and, in

fact, exclusively) affected persons in other countries.

The Massachusetts law is exactly the opposite, and hence

is in full conformity with the ruling in Zschernig

IV. This Court in the past has carefully protected

the autonomy of local communities, to make decisions

such as in the Massachusetts Burma Law.

Clark and Zschernig were both careful to protect

traditional spheres of state and local autonomy

Zschernig noted that:

State courts, of course, must frequently read,

construe, and apply laws of foreign nations. It has

never been seriously suggested that state courts

are precluded from performing that function,

albeit there is a remote possibility that any

holding may disturb a foreign nation - whether

the matter involves commercial cases, tort cases,

or some other type of controversy.

State actions and policies will inevitably effect foreign

countries, but it is certainly true that “it has never been

seriously suggested" by this Court that states must refrain

from any policy or law which "may disturb a foreign

nation."

Mere protest from some foreign country does not

indicate in any way that a state has intruded into foreign

affairs. It may rather indicate that a foreign country has

intruded into our domestic affairs. For example, many

14

countries have protested the use of capital punishment in

the United States. Sometimes, this may be with respect

to a foreign national, or simply an objection to capital

punishment in general. It has never been seriously

suggested that if a state chooses to mete out capital

punishment that it is engaging in foreign policy.

V. The First Circuit ruling threatens to undermine

many areas of lawmaking which this Court has

previously ruled as being the exclusive province of the

States.

1. Alleged Unlimited Nature of Foreign Policy

would dissolve the distinction between what is

internal and what is external.

Capital punishment provides a good example for

discussing the so-called "unlimited" nature of the US

government's foreign policy. It is certainly the case that

the use of capital punishment by the states (and the

federal government) has caused friction with other

nations. It might be that a foreign nation may refuse to

extradite an accused criminal because of the possibility

of a death sentence. It would seem to be an appropriate

exercise of the treaty making power of the federal

government to enter into an extradition treaty which

guarantees that no person extradited to the United States

will be executed. It would, however, go well beyond the

treaty making powers of the federal government to enter

into a treaty which simply prohibits capital punishment

in every case. That would be an intrusion into an area of

criminal punishment reserved to the states. The first case

is a matter of international cooperation, the second would

simply be an end run around the Constitution in the name

of an international treaty. The president and the Senate,

a

15

of course, may not make a treaty pledging to do

something which is prohibited by the Constitution -- such

as nullifying the First, or even the Tenth, Amendment.

Various international treaties, if taken to

supercede local laws, could all but eliminate local

decision making in dozens of areas constitutionally

reserved “to the States or to the people.” Local control of

education, law enforcement, criminal punishment, and

welfare could all be undermined in the name of

international law. It has been seriously argued that the

International Covenant on Civil and Political Rights

overrules state sodomy laws (which were, of course,

explicitly upheld by this court in Bowers 478 US i86

(1986). «

Similarly it has been argued that the United

Nations Charter, the Universal Declaration of Human

Rights, the International Covenant on Economic, Social

and Cultural Rights, ruling by the International Court of

Justice can overrule both state and federal laws. The

potential disruption of local decision making is enormous

if one were to accept that internal, domestic policies can

be challenged based on such international treaties.

The First Circuit opinion declares that “when it

comes to foreign affairs the powers of the federal

government are not limited" and appeals to U/S v.

Curtiss-Wright Export (299 US 304). However, this

Court's opinion in Curtiss noted that "The whole aim of

the [Congressional] resolution is to affect a situation

* See, e.g., Brenda Sue Thornton, The New International

Jurisprudence on the Right to Privacy: a Head-On Collisien with

Bowers v. Hardwick, 58 ALB. L. REV. 725, 771-73 (1995).

16

entirely external to the United States, and falling within

the category of foreign affairs" (emphasis added). The

First Circuit casts such an expansive understanding of

“foreign affairs" that it included not only those things

“entirely external to the United States" but extends even

to domestic affairs which are entirely internal to a

specific state.’

The majority opinion in Curtiss then, proclaimed

that "The powers to declare and wage war, to conclude

peace, to make treaties, to maintain diplomatic relations

” Although the current case does not contradict US v. Curtiss, it

should be noted that the reasoning in Curtiss, namely, that the US

government did not receive its foreign affairs powers from the

Constitution, and therefore is not limited to any cession of power

received from the states, is based on a demonstrably false historical

premise. Curtiss asserted that:

By the Declaration of Independence, 'the Representatives of

the United States of America’ declared the United (not the

several) Colonies to be free and independent states, and as

such to have ‘full Power to levy War, conclude Peace,

contract Alliances, establish Commerce and to do all —_ other

Acts and Things which Independent States may of right do.'

As a result of the separation from Great Britain by the

colonies, acting as a unit, the powers of external sovereignty

passed from the Crown not to the

colomes severally, but to the colonies in their collective and

corporate capacity as the United States of America.

The wording of the Declaration is undoubtedly plural: "these United

Colonies [plural] are and of nght ought to be free and independent

states [plural]. that they [plural] are absolved from all allegiance .. .

they [plural] have full power to levy war, conclude peace" and so

forth. Moreover it is an historical fact that each of the colomes

separately issued their own proclamations of independence, and

moreover, that under the Treaty of Paris, the British crown granted

independence to each of the colomes individually and recognized

"them" to be “tree, sovereign and independent states.”

17

with other sovereignties, if they had never been

mentioned in the Constitution, would have vested in the

federal government as necessary concomitants of

nationality." It seems a dangerous precedent to proclaim

that the federal government may possess various

unenumerated powers which are "necessary concomitants

of nationality." The First Circuit suggests that power to

nullify local purchasing decisions may be one of them.

This Court in Curtiss, of course, limited those things

"concomitant with nationality" to several specific and

enumerated powers. The attempt of the First Circuit is to

create further "hidden powers" which effect the internal

affairs of states.

While the decision in Curtiss does not run afoul

of the Massachusetts law under dispute here, the doctrine

posited therein is an ill thought out one, based upon a

flawed historical understanding and an openly extra-

textual interpretation of the Constitution unsupported by

any writings of the framers. This Court may well take

the opportunity to repudiate Curtiss.

Despite serious problems with Curtiss, it does

contain the truth that the powers of the federal

government differ greatly between internal and external

affairs (as for example between banning executions for

those extradited, versus banning execution generally).

Obviously, protections for US citizens to life, liberty and

property do not apply to enemy combatants in a war

zone. The First Circuit, however, tries to negate the

difference between what is internal and what is external.

by appealing to a more expansive vision of “foreign

affairs" which includes much that is internal, if not

everything which in some way “affects foreign affairs."

18

2. Expansive Reading of Foreign Commerce Clause

runs afoul of this court’s recent narrow reading of

interstate commerce clause.

The First Circuit has, in effect, set up an

expansive standard that anything which "affects" foreign

policy is an area of legislation prohibited to the states.

This seems little more than an attempt to apply the same

expansive reading of the “interstate commerce clause”

which this court has recently rejected and which is being

considered this term in Brzonkala v. Virg. Tech. This

Court in Lopez (514 US 549) declared that activities

which are purely internal to a state cannot be regulated

by the federal government under the guise of regulating

commerce among the states or with foreign nations.

Quoting Gibbons the Lopez court reaffirmed that "It is

not intended to say that these words [of the commerce

clause] comprehend that commerce, which is completely

internal, which is carried on between man and man in a

State, or between different parts of the same State."

The Massachusetts Burma Law clearly falls into

the class of activities which are "completely internal."

As Lopez declared, allowing the federal government to

regulate actions which are completely internal in the

name of regulating commerce among the states or with

foreign nations “would require this Court to pile

inference upon inference in a manner that would bid fair

to convert congressional Commerce Clause authority to a

general police power of the sort held only by the States."

And quoting NLRB v. Jones & Laughlin Steel

(301 US 893), this Court in Lopez noted that the scope of

the interstate commerce power

19

must be considered in the light of our dual system

of government and may not be extended so as to

embrace effects upon interstate commerce so

indirect and remote that to embrace them, in view

of our complex society, would effectually

obliterate the distinction between what is national

and what is local and create a completely

centralized government.

The same can certainly be said of the foreign

commerce power as the interstate commerce power. To

expand congressional power under this grant to include

things which are either "indirectly" or "remotely" related

to foreign commerce would effectively "obliterate the

distinction between what is national and what is local."

3. The “speak with one voice” theory was

never more than a metaphor, which, taken literally,

could undermine important local expression.

The First Circuit's ruling with respect to the need

of the federal government to "speak with one voice" is a

preposterous extension of federal power which threatens

to undermine scores of local actions.

The so-called "one voice" theory originated with

Michelin Tire v. Wages (which is not even cited by the

First Circuit opinion). In Michelin (423 US 276), the

phrase is used only once, and is clearly being used

metaphorically:

The Framers . . . committ{ed] sole power to lay

imposts and duties on imports in the Federal

20

Government, with no concurrent state power: the

Federal Government must speak with one voice

when regulating commercial relations with

foreign governments, and tariffs, which might

affect foreign relations, could not be implemented

by the States consistently with that exclusive

power."

Michelin, as with Japan Line (441 US 434) and

Container Corp (463 US 159), involved taxes which may

have been, in effect, imposts. The phrase in Michelin

was simply meant to say that imposts must be uniform

throughout the United States. In Japan Line, decided the

same year, the court made a bit greater use of the "speak

with one voice" metaphor, but again the use was clearly

metaphorical and not intended to be taken in any literal

sense. Then, this Court in Container Corp. defined a bit

more precisely what was meant by the "one voice"

standard:

“The California tax does not violate the ‘one

voice’ standard established in Japan Line, supra, under

which a state tax at variance with federal policy will be

struck down if it either implicates foreign policy issues

which must be left to the Federal Government or violates

a clear federal directive ”

Thus the Court made clear that, whatever, the

“one voice" standard may mean, it does not prohibit all

local actions which effect foreign policy or even which

are at variance with federal policy, but only those

"foreign policy issues which must be left to the federal

* As noted above, the “sole power” to levy imposts stems from Art

1, sec 10, prohibiting such action to the States.

LP i cael aS To IS *

21

government" or those which violate a clear federal

directive which has been constitutionally enacted.”

The First Circuit in making its "one voice"

argument has expanded a metaphorical phrase into a full

blown policy. The decision appeals to the “one voice"

argument no less than 20 times -- rather astounding

considering that Michelin Tire and Container Corp each

use the phrase only once, and attach no particular

importance to it. Moreover, the First Circuit seems to

want to use the "speak with one voice" standard in a quite

literal sense, meaning that state and local governments

are prohibited from making any sort of protest over

things related to foreign affairs.

The First Circuit opinion even calls into doubt the

ability of state and local governments to adopt

resolutions condemning the actions of foreign states.

The opinion says in footnote 18 that "We do not consider

here whether Massachusetts would be authorized to pass

a resolution condemning Burma's human right record but

taking no other action with regard to Burma." The clear

implication of the opinion, however, is that even such

resolutions run afoul of a literal "one voice" standard.

* Some might try to argue that in the phrase “foreign policy issues

which must be left to the United States,” that “which must be left to

the United States” should be taken as an apposition, that is “foreign

policy issues, [comma] which must be left to the United States.”

That reading, however, is clearly precluded by the lack of a comma

following “foreign policy.” Grammatically then, “which must be left

to the United States” must be taken as a limiting modifier of “foreign

policy issues” and not as an apposition. The same conclusion

follows from the use of the word “issues.” While “foreign policy”

per se must be left to the federal government, “foreign policy issues”

is a Wider, more amorphous, term encompassing “issues” which

affect foreign policy but are not, properly speaking, foreign policy.

22

State and local governments have long been in the

practice of passing resolutions with regard to issues of

international importance, or with respect to treaties or

international agreements being considered by the

Congress. For example, a number of local governments

last year passed resolutions opposing the Multilateral

Agreement on Investment.

Local communities must remain free to comment

on issues of international importance, especially issues

which can affect local communities very directly. Local

communities must be free not only to protest conditions,

but to refuse to cooperate in activities which the

community regards as immoral. As this Court noted in

Printz, “The Constitution thus contemplates that a State’s

government will represent and remain accountable to its

own citizens.” It is entirely proper, if not obligatory, that

a State’s policies, including purchasing decisions, should

represent the values of its citizens. For example, a local

government might adopt a policy that it would not do

business with companies which use slave labor, or

sweatshop conditions. This is a perfectly valid reflection

of community standards, even though it might indirectly

discriminate against foreign companies, since such

working conditions are illegal in the United States.

This Court has correctly noted elsewhere that

decisions about how to spend one's money is a form of

speech. We often ask people to "Put their money where

their mouth is" to show that their criticism is meant. It is

hypocritical, at the least, to do business with a

corporation which a community believes to be engaging

in immoral practices.

Governors routinely negotiate with foreign

leaders and foreign businesses about investing in their

state. While they cannot sign treaties (at least, not

TAS a Ra a ae an ee

.

are seer

23

without Congressional sanction) semi-official negotiation

might well be considered "meddling in foreign affairs

reserved to Congress" or violating the "one voice" policy.

The actions or protests of local governments may

embarrass the federal government. Protests may even

oppose official US policy. For example, during the

1980's local governments formed sister-city relationships

with Nicaraguan cities in protest of American

involvement there. As Container Corp noted however,

an action of a local government opposing US policy is

not ipso facto unconstitutional, but only if it tramples on

specific powers ceded to the federal government.

The "one voice" argument is dangerously close to

the repudiated Alien and Sedition Acts which proclaimed

that once the federal government made a decision about

foreign policy that no one was free to criticize it. Ina

free society, we allow and encourage diverse voices on

matters of public policy, we do not try to stifle them.

And in our federal system, we encourage laws which

represent diverse values, and experiment with diverse

ways of addressing problems.

It should also be noted in passing that the “one

voice” theory is internally inconsistent, since both

Congress and the President (and now potentially the

courts) all play a role in formulating federal foreign

policy. Curtiss seems to suggest that the “one voice”

belongs to the president, while Miche/in suggests that

voice belongs to Congress. The idea that the “federal

government must speak with one voice on matters of

foreign policy” is therefore impossible to realize, given

our system of divided government and “check and

balances.”

24

CONCLUSION

In recent decisions such as Lopez, New York vy.

US, Printz, City of Boerne, Alden, College Savings Bank

and others, this Court has embarked upon a path of

upholding the independence of state and _ local

government. All of these cases involved “a considerable

congressional intrusion into States’ traditional

prerogatives” (City of Boerne v Flores). The current case

is of a slightly different nature, but in the same line. This

time it is not Congress which is attempting to intrude into

State’s traditional prerogatives, but the courts.

In some ways, however, interference by the

courts is even worse. As this Court recently noted in

Alden, “If the principle of representative government is to

be preserved to the States, the balance between

competing’ interests must be reached by the political

process established by the citizens of the State, not by

judicial decree mandated by the Federal Government and

invoked by the private citizen” (A/den v. Maine).

It would be inconceivable, that at a time when

this Court has fought so strongly against Congressional

intrusions into local decision making, that it would allow

a thousand unelected judges to exercise similar power.

: ‘h) Respectfully submitted,

D Kenneth B. Clark, Counsel of

og Record

Coalition for Local Sovereignty

611 Pennsylvania Ave, SE # 169

Washington, DC 20003

January 13, 2000 (301) 579 6100