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Call for support on Burma law decis



Subject: Call for support on Burma law decision

the Burma-Law Decision 
* forwarded message. Contact Bob Stumberg (stumberg@xxxxxxxxxxxxxxxxxx)
for more information - 
Harrison Institute for Public Law
Georgetown University Law Center

December 22, 1999 
Supreme Court Review of the Burma-Law Decision 
Call for Amicus Support of Massachusetts: The Supreme Court has agreed to review the decision by a federal court of appeals that overturned the Massachusetts *Burma law.* The law is modeled after the successful anti-Apartheid boycott laws that were adopted by 25 states and 80 local governments. The Burma law seeks to avoid spending public funds on business with companies that support repression of human rights by doing business in Burma. The following bulletin calls for diverse public officials and organizations to join amicus briefs that support Massachusetts and the traditional power of states to spend public funds on the basis of standards that promote human rights and democracy. 
Deadline for responding: Friday, 1/7/00 
Contents 
1.
Massachusetts Burma Law 
2. Status of the Case 
3. Merits & Risks of Supreme Court Review 
4. Need for Amicus Participants 
5. Summary of Amicus Briefs 
6. Sources of Further Information 
7. Draft Letters to Join the Amicus Brief 
1.
Massachusetts Burma Law 
The Massachusetts Burma law was challenged in federal court by the National Foreign Trade Council (NFTC) with a supporting amicus (friend of the court) brief from the European Union. Often referred to as *selective purchasing,* the law discourages state agencies from doing business with companies that do business in Burma. It provides a 10% preference for bids from companies that avoid doing business in Burma unless the preference would impair essential purchases or result in inadequate competition. The premise behind this law is that virtually all international trade and investment in Burma contributes to violation of human rights. 
Official reports of the U.S. government, the United Nations and the International Labor Organization have found that the military government of Burma has violated international standards of public morality. These abuses include forced labor, suppression of a democratically elected government, suppression of individual political rights, torture, rape, and various forms of discrimination against ethnic minorities. In addition, the military profits from money laundering and support of narcotics trafficking, which accounts for approximately half of all heroin exported to the United States. 
Doing business in Burma inescapably supports the ability of the military government of Burma to continue abusing human rights. That is because international trade provides the foreign currency that the government uses to purchase weapons and military equipment. Virtually all international commerce with Burma requires direct business relations with the government of Burma or with trading companies that are owned or controlled by the government. In addition, the economy of Burma depends upon infrastructure that has been built with the forced labor of over 5.5 million people during the past decade. 
2.     Status of the Legal Challenge 
On April 30, 1998, the National Foreign Trade Council filed a legal challenge against the Massachusetts Burma Law in the federal district court in Boston. The NFTC is an association of approximately 600 corporations, which is closely allied with USA*Engage, a corporate coalition that opposes selective purchasing, and more generally, unilateral sanctions. 
On November 4, 1998, Judge Joseph Tauro ruled that the Burma law is unconstitutional because it encroaches upon an exclusive power of the federal government to manage foreign affairs. In defining the scope of foreign affairs, Judge Tauro embraced the European Union's argument that the Burma law "interferes with the normal conduct of EU-US relations" because it "raises questions about the ability of the U.S. to honor international commitments it has entered in the framework of the World Trade Organization." 
On June 22, 1999, the First Circuit Court of Appeals in Boston upheld Judge Tauro's decision. It also ruled against Massachusetts on two other arguments raised by the NFTC. First, it ruled that the Burma law impermissibly burdens foreign commerce. Second, it ruled that the law is preempted by the federal sanctions against the military government of Burma. Congress authorized federal sanctions several months after Massachusetts enacted its law. The decision of the First Circuit Court of Appeals is binding only on jurisdictions within that circuit, which includes Maine, New Hampshire, Massachusetts and Rhode Island. However, the NFTC has announced its intent to sue other jurisdictions and use the First Circuit opinion to persuade other federal courts to follow this precedent. 
On November 29, 1999, the Supreme Court granted the "Petition for Certiorari" filed by Massachusetts, which means that the Court has accepted the case. Amicus briefs in support of Massachusetts are due on January 14, 2000, which means that parties who want to join those briefs must do so a week earlier (January 7th). Oral arguments will be scheduled in April, and a decision is expected in June or July of 2000. 
3.
Merits & Risks of Supreme Court Review 
In a series of recent decisions, the Supreme Court has consistently ruled in favor of state governments on issues of federalism, set high standards for congressional preemption of state law, and limited the capacity of private parties to sue states. The high court is the best court for a state to defend its legislative authority against a challenge that seeks to expand federal judicial review of state purchasing practices. 
Considering that the Supreme Court grants only about 2 percent of the petitions for review, the Court*s acceptance of this case means that it views the case as an opportunity to clarify the balance of constitutional power when state purchasing policy affects foreign affairs. There is always a risk that the Supreme Court will uphold the lower courts, thus applying the lower court decision to the rest of the country. However, it is also true that once the Supreme Court accepts a case, it reverses the lower court decision well over half of the time.  The plaintiff in the Burma-law case, the NFTC, has announced on numerous occasions that it intends to sue other jurisdictions besides Massachusetts in order to either (1) establish a series of precedents that will choke off any further Burma laws, or (2) get the Supreme Court to rule on the Burma laws. In light of the NFTC strategy, the issue has been not so much whether state and local Burma laws would be reviewed by the Supreme Court, but when it would do so. The odds are at least even for a favorable decision from the Supreme Court at this time. The odds may not be as good in the future, particularly if there is turnover among the justices on the Court. 
4.
Need for Amicus Participants 
A diverse array of 126 amicus participants supported the Massachusetts petition asking the Supreme Court to take this case. These included 55 members of Congress, 14 state attorneys general, 11 local governments, and 46 nonprofit organizations. The purpose of expanding this amicus participation is to demonstrate to the Court that many leaders within government and civil society care deeply about the importance of human rights criteria for public purchasing, and the principles of federalism that enable state and local governments to choose their business partners based on standards of public morality. 
5.
Summary of Amicus Briefs 
Amicus briefs in support of Massachusetts must be filed by January 14th.  These briefs will expand upon the themes articulated in the briefs asking the court to take this case. These themes are summarized below.  If you would like a copy of the briefs filed in support of Supreme Court review, see item 6 below, *Sources of Further Information*. 
a.
Members of Congress 
                                #
Contact: Robert Stumberg, Harrison Institute for Public Law, Georgetown University Law Center, 202-662-9603, <stumberg@xxxxxxxxxxxxxxxxxxx> See draft letter below. 
                                #
Previous amicus participants: Sen. Paul Wellstone & Reps.  Neal Abercrombie, Tammy Baldwin, Howard Berman, Xavier Becerra, David Bonior, Sherrod Brown, Michael Capuano, Eva Clayton, William Delahunt, Danny Davis, Peter Defazio, Lane Evans, Barney Frank, Benjamin Gilman, Luis Gutierrez, Jesse Jackson, Jr., Sheila Jackson Lee, Stephanie Tubbs Jones, Barbara Lee, John Lewis, Marcy Kaptur, Dennis Kucinich, Tom Lantos, Edward Markey, Matthew Martinez, Cynthia McKinney, James McGovern, Martin Meehan, Juanita Millender-McDonald, George Miller, John Joseph Moakley, Jerry Nadler, Richard Neal, John Olver, James Oberstar, William Pascrell, Nancy Pelosi, Thomas Petri, Richard Pombo, Ileana Ros-Lehtinen, Dana Rohrabacher, Lucille Roybal-Allard, Bernie Sanders, Janice Shakowski, Christopher Smith, Pete Stark, Ted Strickland, John Tierney, Edolphus Towns, James Traficant, Tom Udall, Henry Waxman, Lynn Woolsey, and David Wu. 
                                #
Theme: The Burma-law decision conflicts with the constitutional authority granted to Congress to decide whether state law is preempted by federal law. Recent Supreme Court decisions reinforce this role of Congress, including when a decision to preempt involves regulation of foreign commerce or foreign affairs. The Burma law is part of a tradition of state lawmaking that Congress has chosen not to preempt, which includes the anti-Apartheid boycotts (25 states and 80 local governments), the MacBride Principles for doing business in Northern Ireland, and the policy on doing business with Swiss Banks that withheld payment of claims to Holocaust victims. Congress was aware of the Massachusetts Burma law when it authorized federal sanctions on Burma. When Congress adopted those sanctions with no discussion of state or local laws, it certainly did not express an affirmative intent to preempt the Massachusetts law. Congress expressed its preemption policy more broadly when it adopted the WTO implementing act. That law provides that only the U.S. government, and not private parties such as the NFTC, may ask a court to invalidate a state or local law in connection with the WTO Agreement on Government Procurement. 
b.
State Attorneys General 
                                #
Contact: Beth Baumstark, North Dakota Office of Attorney General, 701-328-3623, <msmail.bbaumsta@xxxxxxxxxxxxxxxxx>. 
                                #
Previous amicus participants: The attorney general of North Dakota, joined by attorneys general of Arkansas, California, Louisiana, Maryland, Minnesota, New Hampshire, New Mexico, Rhode Island, Oklahoma, Oregon, Utah and Washington. 
                                #
Themes: Congress must clearly preempt a state law before the courts may intervene.   The Supreme Court held in its 1994 Barclays Bank decision that Congress, not the courts, is the branch that must decide whether to preempt state law if there is a potential conflict with congressional authority. State procurement is solely a state issue.  This has been upheld by the Supreme Court*s market participant exception to the power of Congress to regulate states under the commerce clause.  State primacy over procurement is also supported by the 10th Amendment reservation of power to the states since the Constitution does not delegate power over state purchasing to the federal government. In making decisions on how to spend their taxpayers* money, states should have the same right to base decisions on principles of morality as private businesses do. In fact, states may well have an obligation to consider the social consequences of their own purchasing or investment decisions.   Especially when dealing with such a traditional area of state authority, preemption must be determined explicitly by Congress and not presumed by the courts. 
c.
Local Governments 
                                #
Contact: Sara Kay, Office of General Counsel, Comptroller of the City of New York, 212-669-3749, <no email address>. 
                                #
Previous amicus participants: Comptroller of the City of New York, joined by Alameda County, CA; Amherst, MA; Berkeley, CA; Boulder, CO; Carrboro, NC; Los Angeles, CA; NY; Newton, MA; Oakland, CA;
Philadelphia, PA; San Francisco, CA; and Santa Cruz, CA. 
                                #
Themes: The Burma-law decision threatens local purchasing
based on public values and ethics. Local governments have long based
their purchasing decisions on public values and ethics, which include
international standards of human rights. For example, the lower court
ruling in the Burma-law case would have invalidated the South Africa
boycott laws. The ruling sets a precedent that be used to challenge
current policies including: advocacy in support of Holocaust survivors*
property claims against foreign banks and insurance companies; support
for environmental protection; and preference for businesses that avoid
practicing religious discrimination in Northern Ireland. These policies
do not regulate what private market actors may do; they only set ethical
limits on how state and local governments spend public funds 
d.
Nonprofit Organizations 
                                #
Contact: The lead author of this brief will be Peter Rosenblum, Harvard Program on Human Rights, 617-496-2825, <prosenbl@xxxxxxxxxxxxxxx>. However, the Harrison Institute at Georgetown University Law Center will coordinate commitment letters from nonprofit organizations that wish to join this brief. Contact Robert Stumberg, 202-662-9603, <stumberg@xxxxxxxxxxxxxxxxxx>. See draft letter below. 
                                #
Previous amicus participants: 8th Day Center for Justice, Alliance for Democracy, American Lands Alliance, Arise Resource Center, As You Sow Foundation, Asia Pacific Center for Peace & Justice, Boston Mobilization for Survival, Center for Constitutional Rights, Center for Int*l Environmental Law, Center for Labor & Community Resources, Consumers Choice Council, Defenders of Wildlife, Delta County Alliance for Democracy, Dictator Watch, Dominican Sisters of Hope, Earthrights Intl, East Timor Action Network/U.S., Edmonds Inst., Free Burma Coalition, Free Burma - No Petro Dollars, Humane Society of the U.S., Humane Society Intl., Inst. for Agriculture & Trade Policy, International Committee of Lawyers for Tibet, Intl. Labor Rights Fund, Intl. Rivers Network, Long Island Progressive Coalition, Los Angeles Burma Forum, Jewish Labor Committee, National Association for Socially Responsible Organizations, New England Burma Roundtable, Philadelphia Burma Forum, Pennsylvania Consumer Action Network, Project Maje, Project Underground, Merrimack Valley People for Peace, Rt. Rev. Thomas Shaw - Episcopal Bishop of Mass., Ruckus Society, Seattle Burma Roundtable, Sustainable America, Unitarian Univ. Service Comm., United for a Fair Economy, Ursuline Sisters of Tildonk, Women*s Division - United Methodist Church, Women*s Intl. League for Peace & Freedom. 
                                #
Themes: International law authorizes the Burma law. The Massachusetts law is authorized by at least three international human rights agreements. When the U.S. Senate ratified the international agreements, it reserved authority for states to implement the agreements within the scope of their traditional authority, which includes public purchasing. 
The lower court decision could place hundreds of state and local laws at risk. By overturning a state law based on WTO obligations, the lower court decision empowers the European Union, Japan and other nations to invalidate environmental and consumer laws simply by complaining that the laws violate U.S.  obligations under various WTO agreements. These include environmental purchasing preferences in 48 states regarding recycled content, alternative fuels and ink, and sustainable forestry standards. Dozens of cities have adopted fair labor standards for goods that they purchase, including sweatshop boycotts and living wage standards for contractors.  The foreign complaints about these laws were a factor that motivated Congress to adopt the sovereignty protections in the WTO act. 
6.
Sources of Further Information 
a.
Copies of court decisions and briefs: You can request an electronic copy of individual briefs by sending a message to <stumberg@xxxxxxxxxxxxxxxxxx>. You can view and print all briefs in support of the NFTC at the website for USA*Engage, <http://usaengage.org/background/lawsuit/>. 
b.
Citations to legal opinions: The federal trial court opinion is
NFTC v. Frederick Laskey et al., 26 F. Supp.2d 287 (D. Ma. 1998). The federal appeals court opinion is National Foreign Trade Council v. Andrew S.  Natsios, et al., 181 F.3d 38 (1st Cir. 1999). The Supreme Court docket number is 99-474. 
c.
Background on Burma: For information on the movement for
democracy in Burma, we recommend three of the many Burma-related web sites because they include links to many other websites: Free Burma.org, <http://www.freeburma.org/>; the Burma Project of the Open Society Institute, <http://www.soros.org/burma.html>; and the Free Burma Coalition, <http://www.freeburmacoalition.org/>. 
7.
Draft Letters to Join an Amicus Brief 
Please send the following letter by fax and mail if your organization would like to join the amicus brief that will be filed by nonprofit organizations. Also attached are draft letters for other amicus participants who will be filing separate briefs. For information on those briefs, please contact the individuals listed above. 
a.
Letter for Nonprofit Organizations to Join the Amicus Brief 
Date 
Professor Robert Stumberg
Harrison Institute for Public Law
Georgetown University Law Center
111 F St., NW - Suite 102
Washington, DC 20001-2095
fax to: 202-662-9613 
Dear Professor Stumberg: 
My organization,
_____________________, has decided to join the amicus brief on behalf of nonprofit organizations that will be filed by the Harvard Law School immigration law program in support of Massachusetts in the Burma law case. This brief asks the Supreme Court to reverse the decision of the First Circuit Court of Appeals in National Foreign Trade Council v.  Andrew S. Natsios, et al., 181 F.3d 38 (1st Cir. 1999), which overturned the Massachusetts Burma law on grounds that the law was preempted by federal sanctions on Burma and that the law encroached upon federal foreign affairs power as well as federal power to regulate foreign commerce. 
I am aware of the general themes of this brief. The first major theme is that international law authorizes the Burma law. A second major theme of the brief is that the lower court decisions could place hundreds of state and local laws at risk. These include environmental purchasing preferences in 48 states regarding recycled content, alternative fuels and ink, and sustainable forestry standards. Dozens of cities have adopted fair labor standards for goods that they purchase, including sweatshop boycotts and living wage standards for contractors. 
The legal representation that this letter authorizes is strictly limited to filing this brief. I am aware that by joining this brief, my organization will be listed on the brief and my support for Massachusetts in this case will be public information, which will be shared with the media, the State Department, members of Congress and other public officials. 
Sincerely, 
b.
Letter to Urge Public Officials to Join an Amicus Brief 
Date 
name
title
jurisdiction
street address
city, state zip
fax to: ___________ 
Dear ____ ________: 
I am writing to encourage you to join an amicus brief in a case that involves important human rights and state sovereignty interests. The brief will be filed on behalf of [named public officials: members of Congress, state attorneys general or local government officials] in support of a Massachusetts Petition for Certiorari. The case involves the state*s *Burma law,* a selective purchasing law that was modeled after the successful anti-Apartheid laws that were adopted by 25 states and 80 local governments.   This petition asks the Supreme Court to reverse the decision of the First Circuit Court of Appeals in National Foreign Trade Council v. Andrew S. Natsios, et al., 181 F.3d 38 (1st Cir. 1999), which overturned the Massachusetts Burma law on grounds that the law was preempted by federal sanctions on Burma and that the law encroached upon federal foreign affairs power, federal power to regulate foreign commerce. 
The contact people and themes of the brief that I encourage you to join are provided in the attached material, which was prepared by the Harrison Institute for Public Law at Georgetown University Law Center. The attachment also explains the other amicus briefs that will be filed in support of Massachusetts in this case. 
Sincerely, 
c.
Letter for Local Governments to Join the Amicus Brief 
Date 
Sara Kay
Office of General Counsel
Comptroller of the City of New York
1 Center Street - Room 52
New York, NY 10007
fax to: 212-815-8563 
Dear Ms. Kay: 
My office,
_____________________, has decided to join the amicus brief on behalf of local government officials in support of Massachusetts in the Burma law case. This brief asks the Supreme Court to reverse the decision of the First Circuit Court of Appeals in National Foreign Trade Council v.  Andrew S. Natsios, et al., 181 F.3d 38 (1st Cir. 1999), which overturned the Massachusetts Burma law on grounds that the law was preempted by federal sanctions on Burma and that the law encroached upon federal foreign affairs power as well as federal power to regulate foreign commerce. 
My office is aware of the general themes presented in this brief, which include the argument that the lower court decision threatens local purchasing based on public values and ethics. Local governments have long based their purchasing decisions on public values and ethics, which include international standards of human rights. For example, the lower court ruling in the Burma-law case would have invalidated the South Africa boycott laws. The ruling sets a precedent that be used to challenge current policies including: advocacy in support of Holocaust survivors* property claims against foreign banks and insurance companies; support for environmental protection; and preference for businesses that avoid practicing religious discrimination in Northern Ireland. These policies do not regulate what private market actors may do; they only set ethical limits on how state and local governments spend public funds. 
The legal representation that this letter authorizes is strictly limited to filing this brief. I am aware that by joining this brief, my office will be listed on the brief and our support for Massachusetts in this case will be public information, which will be shared with the media, the State Department, members of Congress and other public officials. 
Sincerely, 
d.
Letter for Members of Congress to Join the Amicus Brief 
Date
Professor Robert Stumberg
Harrison Institute for Public Law
Georgetown University Law Center
111 F St., NW - Suite 102
Washington, DC 20001-2095
fax to: 202-662-9613 
Dear Professor Stumberg: 
I would like to join the amicus brief on behalf of members of Congress that will be filed by the Harrison Institute at Georgetown University Law Center in support of Massachusetts in the Burma law case.   This brief asks the Supreme Court to reverse the decision of the First Circuit Court of Appeals in National Foreign Trade Council v. Andrew S. Natsios, et al., 181 F.3d 38 (1st Cir. 1999), which overturned the Massachusetts Burma law on grounds that the law was preempted by federal sanctions on Burma and that the law encroached upon federal foreign affairs power as well as federal power to regulate foreign commerce. 
I am aware of the
general theme of this brief, which is that the Court should reverse the
Burma-law decision because it conflicts with the constitutional
authority granted to Congress to decide whether state law is preempted
by federal law. 
The legal representation that this letter authorizes is strictly limited to filing this brief. I am aware that by joining this brief, my name will be listed on the brief and my support for Massachusetts in this case will be public information, which will be shared with the media, the State Department, members of Congress and other public officials. 
Sincerely, 
Robert Stumberg
stumberg@xxxxxxxxxxxxxxxxxx
202-662-9603 phone
292-662-9613 fax 
---------------------------------------------- 
Harrison Institute for Public Law
Georgetown University Law Center
111 F St., NW - Suite 102
Washington, DC 20001-2095 
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