State Larson, for example, has directly addressed the mandate of the
federal Burma law in saying that the imposition of unilateral state sanctions
under the state Act “complicate[s] efforts to build coalitions with our allies”
to promote democracy and human rights in Burma….
IV
The State’s remaining argument is unavailing. It contends that the
failure of Congress to preempt the state Act demonstrates implicit
permission. The State points out that Congress has repeatedly declined to
enact express preemption provisions aimed at state and local sanctions, and
it calls our attention to the large number of such measures passed against
South Africa in the 1980s…. The State stresses that Congress was aware of
the state Act in 1996, but did not preempt it explicitly when it adopted its
own Burma statute….
The argument is unconvincing on more than one level. A failure to
provide for preemption expressly may reflect nothing more than the settled
character of implied preemption doctrine that courts will dependably apply,
and in any event, the existence of conflict cognizable under the Supremacy
Clause does not depend on express congressional recognition that federal
and state law may conflict…. The State’s inference of congressional intent
is unwarranted here, therefore, simply because the silence of Congress is
ambiguous….
V
Because the state Act’s provisions conflict with Congress’s specific
delegation to the President of flexible discretion, with limitation of
sanctions to a limited scope of actions and actors, and with direction to
develop a comprehensive, multilateral strategy under the federal Act, it is
preempted, and its application is unconstitutional, under the Supremacy
Clause.
Notes and Questions
1. Does the Massachusetts statute conflict with federal law? Do not both
seek to put pressure on Burma to improve its human rights practices?
2. What sorts of participation by states in foreign policy would the
Supreme Court tolerate under the reasoning in Crosby? How does the
Massachusetts law differ from the anti-apartheid statutes that the Office of
Legal Counsel found constitutional in 1986?
3. How important to the Court’s reasoning was the position of the
Executive Branch that the law complicated multilateral efforts on Burma?
What does this suggest about the Court’s approach to the role of states?
4. Which was the better forum for the resolution of this matter — the
WTO (through its three-person dispute resolution panel) or the U.S.
Supreme Court? Should America’s trading partners be satisfied with the
Supreme Court’s decision in light of their complaint to the WTO? After
Crosby, Japan and the EU dropped their WTO case. In 2012, in response to
major changes within Burma, the President used his authorities to begin
removing sanctions
