Preemption & Human Rights: Local Options After \u3ci\u3eCrosby v. NFTC\u3c/i\u3e

In June 2000, the Supreme Court held in Crosby v. National Foreign Trade Council (NFTC) that federal sanctions against Burma preempted the Massachusetts Burma law. With its Burma Law, Massachusetts sought to replicate the anti-Apartheid boycott, one of the most successful human rights campaigns in history. Massachusetts\u27 Burma law authorized state agencies to exercise a strong purchasing preference in favor of companies that do not conduct business in Burma unless the preference would impair essential purchases or result in inadequate competition. In Crosby, the Court held that Congress preempted the Massachusetts Burma law when it adopted federal sanctions on Burma. While the state law applied to purchasing by state agencies, the federal law imposed a limited range of sanctions, including a ban on future private investment, and gave the President discretion regarding the imposition of some of these sanctions. However, the Court declined to rule that the Massachusetts Burma law was unconstitutional under the federal foreign affairs power or the dormant Commerce Clause, as the First Circuit Court of Appeals had in National Foreign Trade Council v. Natsios. The Crosby decision provides no fuel for a constitutional claim, but neither does it blunt the impact of the First Circuit\u27s holding that the state law is unconstitutional. As the First Circuit acknowledged, there are volumes of analysis, pro and con, regarding the constitutional theories that the First Circuit used to invalidate Massachusetts\u27 Burma law in NFTC v. Natsios. Much of this scholarship argues that absent a clear conflict or statement of congressional intent to preempt state or local law, the federal foreign affairs power alone does not render a state or local law unconstitutional. With the extensive published work on each side of the anti-Apartheid boycotts as well as the Burma laws, there is little need to revisit such well-plowed fields. This article seeks to derive some guidance from the Crosby decision for state and local legislatures, as many of these bodies want to play more than the very limited role that the Court, during oral argument, suggested was appropriate