530 U.S. 363 (2000), 99-474, Crosby v. National Foreign Trade Council

Docket Nº:No. 99-474
Citation:530 U.S. 363, 120 S.Ct. 2288, 147 L.Ed.2d 352, 68 U.S.L.W. 4545
Case Date:June 19, 2000
Court:United States Supreme Court

Page 363

530 U.S. 363 (2000)

120 S.Ct. 2288, 147 L.Ed.2d 352, 68 U.S.L.W. 4545




No. 99-474

United States Supreme Court

June 19, 2000

Argued March 22, 2000



In 1996, Massachusetts passed a law barring state entities from buying goods or services from companies doing business with Burma. Subsequently, Congress imposed mandatory and conditional sanctions on Burma. Respondent (hereinafter Council), which has several members affected by the state Act, filed suit against petitioner state officials (hereinafter State) in federal court, claiming that the state Act unconstitutionally infringes on the federal foreign affairs power, violates the Foreign Commerce Clause, and is preempted by the federal Act. The District Court permanently enjoined the state Act's enforcement, and the First Circuit affirmed.


The state Act is preempted, and its application unconstitutional, under the Supremacy Clause. Pp. 372-388.

(a) Even without an express preemption provision, state law must yield to a congressional Act if Congress intends to occupy the field, California v. ARC America Corp., 490 U.S. 93, 100, or to the extent of any conflict with a federal statute, Hines v. Davidowitz, 312 U.S. 52, 66-67. This Court will find preemption where it is impossible for a private party to comply with both state and federal law and where the state law is an obstacle to the accomplishment and execution of Congress's full purposes and objectives. What is a sufficient obstacle is determined by examining the federal statute and identifying its purpose and intended effects. Here, the state Act is such an obstacle, for it undermines the intended purpose and natural effect of at least three federal Act provisions. Pp. 372-374.

(b) First, the state Act is an obstacle to the federal Act's delegation of discretion to the President to control economic sanctions against Burma. Although Congress put initial sanctions in place, it authorized the President to terminate the measures upon certifying that Burma has made progress in human rights and democracy, to impose new sanctions upon findings of repression, and, most importantly, to suspend sanctions in the interest of national security. Within the sphere defined by Congress, the statute has given the President as much discretion to exercise economic leverage against Burma, with an eye toward national security,

Page 364

as law permits. The plenitude of Executive authority controls the preemption issue here. The President has the authority not merely to make a political statement but to achieve a political result, and the fullness of his authority shows the importance in the congressional mind of reaching that result. It is implausible to think that Congress would have gone to such lengths to empower the President had it been willing to compromise his effectiveness by allowing state or local ordinances to blunt the consequences of his actions. Yet this is exactly what the state Act does. Its sanctions are immediate and perpetual, there being no termination provision. This unyielding application undermines the President's authority by leaving him with less economic and diplomatic leverage than the federal Act permits. Pp. 374-377.

(c) Second, the state Act interferes with Congress's intention to limit economic pressure against the Burmese Government to a specific range. The state Act stands in clear contrast to the federal Act. It prohibits some contracts permitted by the federal Act, affects more investment than the federal Act, and reaches foreign and domestic companies while the federal Act confines its reach to United States persons. It thus conflicts with the federal law by penalizing individuals and conduct that Congress has explicitly exempted or excluded from sanctions. That the two Acts have a common end hardly neutralizes the conflicting means, and the fact that some companies may be able to comply with both sets of sanctions does not mean the state Act is not at odds with achievement of the congressional decision about the right calibration of force. Pp. 377-380.

(d) Finally, the state Act is at odds with the President's authority to speak for the United States among the world's nations to develop a comprehensive, multilateral Burma strategy. Congress called for Presidential cooperation with other countries in developing such a strategy, directed the President to encourage a dialogue between the Burmese Government and the democratic opposition, and required him to report to Congress on these efforts. This delegation of power, like that over economic sanctions, invested the President with the maximum authority of the National Government. The state Act undermines the President's capacity for effective diplomacy. In response to its passage, foreign governments have filed formal protests with the National Government and lodged formal complaints against the United States in the World Trade Organization. The Executive has consistently represented that the state Act has complicated its dealing with foreign sovereigns and proven an impediment to accomplishing the objectives assigned it by Congress. In this case, the positions of foreign governments and the Executive are competent and direct evidence of the state Act's frustration

Page 365

of congressional objectives. Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298, distinguished. Pp. 380-386

(e) The State's remaining argument—that Congress's failure to preempt state and local sanctions demonstrates implicit permission—is unavailing. The existence of a conflict cognizable under the Supremacy Clause does not depend on express congressional recognition that federal and state law may conflict, and a failure to provide for preemption expressly may reflect nothing more than the settled character of implied preemption that courts will dependably apply. Pp. 386-388.

181 F.3d 38, affirmed.

Souter, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O'Connor, Kennedy, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined, post, p. 388.

Thomas A. Barnico, Assistant Attorney General of Massachusetts, argued the cause for petitioners. With him on the briefs were Thomas F. Reilly, Attorney General, and James A. Sweeney, Assistant Attorney General.

Timothy B. Dyk argued the cause for respondent. With him on the brief were Gregory A. Castanias, John B. Kennedy, and Michael A. Collora.

Solicitor General Waxman argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Assistant Attorney General Ogden, Deputy Solicitor General Kneedler, Barbara McDowell, Mark B. Stern, Alisa B. Klein, Douglas Hallward-Driemeier, David R. Andrews, Neal S. Wolin, and Andrew [*]

Page 366

Justice Souter delivered the opinion of the Court.

The issue is whether the Burma law of the Commonwealth of Massachusetts, restricting the authority of its agencies to purchase goods or services from companies doing business with Burma,[1 ] is invalid under the Supremacy Clause of the National Constitution owing to its threat of frustrating federal statutory objectives. We hold that it is.


In June 1996, Massachusetts adopted "An Act Regulating State Contracts with Companies Doing Business with or in

Page 367

Burma (Myanmar)," 1996 Mass. Acts 239, ch. 130 (codified at Mass. Gen. Laws §§ 7:22G-7:22M, 40 F ½ (1997). The statute generally bars state entities from buying goods or services from any person (defined to include a business organization) identified on a "restricted purchase list" of those doing business with Burma. §§ 7:22H(a), 7:22J. Although the statute has no general provision for waiver or termination of its ban, it does exempt from boycott any entities present in Burma solely to report the news, § 7:22H(e), or to provide international telecommunication goods or services, ibid., or medical supplies, § 7:22I.

" 'Doing business with Burma' " is defined broadly to cover any person

"(a) having a principal place of business, place of incorporation or its corporate headquarters in Burma (Myanmar) or having any operations, leases, franchises, majority-owned subsidiaries, distribution agreements, or any other similar agreements in Burma (Myanmar), or being the majority-owned subsidiary, licensee or franchise of such a person;

"(b) providing financial services to the government of Burma (Myanmar), including providing direct loans, underwriting government securities, providing any consulting advice or assistance, providing brokerage services, acting as a trustee or escrow agent, or otherwise acting as an agent pursuant to a contractual agreement;

"(c) promoting the importation or sale of gems, timber, oil, gas or other related products, commerce in which is largely controlled by the government of Burma (Myanmar), from Burma (Myanmar);

"(d) providing any goods or services to the government of Burma (Myanmar)." § 7:22G.

There are three exceptions to the ban: (1) if the procurement is essential, and without the restricted bid, there would be no bids or insufficient competition, § 7:22H(b); (2) if the

Page 368

procurement is of medical supplies, § 7:22I; and (3) if the procurement efforts elicit no "comparable low bid or offer" by a person not doing business with Burma, § 7:22H(d), meaning an offer that is no more than 10 percent greater than the restricted bid, § 7:22G. To enforce the ban, the Act requires petitioner Secretary of Administration and Finance to maintain a "restricted purchase list" of all firms "doing business with Burma,"[2] § 7:22J.

In September 1996, three months after the Massachusetts law was enacted, Congress passed a statute...

To continue reading