By Laurie Asseo, Associated Press, 03/22/00
WASHINGTON - More than a decade after the South Africa boycotts, some Supreme Court justices questioned Wednesday whether states can refuse to buy from companies doing business in countries known for human rights abuses.
A foreign trade group and the Clinton administration argued that Massachusetts unlawfully meddled in U.S. foreign policy by limiting state purchases from companies that do business in Myanmar, also known as Burma.
Some justices appeared to agree.
Justice Ruth Bader Ginsburg asked, "For Massachusetts to go it on its own when the United States is saying we want to get together with our world neighbors" on a Myanmar policy, "isn't there a clash?"
Justice Stephen G. Breyer wondered if states also could enact purchasing policies intended to influence the actions of other states. That could result in "a kind of nightmare" or "chaos," he said.
The lawyer for Massachusetts, Thomas A. Barnico, told the justices that states have the right to withhold "tax funds from the indirect support of brutal regimes abroad." The Constitution's framers "knew boycotts well" and did not bar states from taking such actions, he said.
But lawyer Timothy B. Dyk, arguing for the National Foreign Trade Council, said the 1996 Massachusetts law unlawfully interferes in U.S. foreign policy.
Congress passed more limited sanctions against Myanmar later in 1996, and that bars states from trying on their own to influence that country's government, Dyk said.
However, Barnico contended Congress' 1996 Myanmar sanctions did not bar states from taking their own actions.
Justice Sandra Day O'Connor noted that a number of states boycotted companies doing business in South Africa during the 1980s during the apartheid era.
"These were widespread practices by states then, were they not?" she said. "The very purpose of it was to change something going on in the South African government."
Dyk contended those boycotts were unlawful.
Solicitor General Seth Waxman, supporting the foreign trade group, said Congress actually authorized the South Africa boycott. But he added that because Congress has adopted its own policy on Myanmar, Massachusetts' policy amounts to interference.
Justice Antonin Scalia suggested that Massachusetts' law could be considered a neutral measure that says, "we don't buy from anybody that violates human rights."
Members of the Free Burma Coalition rallied outside the Supreme Court building during the hour-long argument.
"This is the modern-day equivalent of the Boston Tea Party," coalition lawyer Tom Higdon said. "We are saying we care about human rights and we will not have corporations or the (European Union) dictate to us what products to buy and who can buy them."
More than a dozen city governments also have enacted some type of trade restrictions regarding Myanmar. Some have adopted similar limits relating to China, Cuba and Northern Ireland.
The military has ruled Myanmar, one of the world's poorest countries, since 1962. In 1988, the military gunned down thousands of protesters during a crackdown on a pro-democracy uprising.
The Massachusetts law says most companies doing business with Myanmar can sell goods and services to the state only by if their bid is 10 percent lower than all other bids.
After the trade council challenged the law in 1998, the 1st U.S. Circuit Court of Appeals ruled it interfered with federal foreign policy and was pre-empted by the federal government's own sanctions.
