Massachusetts’ ‘Burma Law’ Struck Down

A federal judge has struck down a Massachusetts statute banning state purchases from companies doing business in troubled Myanmar, saying the law interferes with the federal government’s power to regulate foreign affairs.

The ruling by Chief U.S. District Judge Joseph L. Tauro, while binding only in Massachusetts, casts doubt over the legality of similar so-called selective-purchasing statutes elsewhere. Since 1996, about 30 state and local governments have passed similar laws targeting Myanmar, China, Nigeria, Indonesia and Switzerland because of alleged human rights violations.

The Los Angeles City Council is also considering a law that would ban contacts with companies doing business in Myanmar, formerly known as Burma.

The 1996 Massachusetts law was challenged by the National Foreign Trade Council, a powerful Washington-based trade group. The group said Thursday that it was “seriously considering” challenging the other statutes, a prime target being a New York City law.

That law, passed last year, prevents city agencies from purchasing goods or services, signing construction contracts or making bank deposits with companies involved in Myanmar.

Such laws, the trade group contends, hurt its 580 members--including Unocal, Citibank and several other major U.S. multinationals--by banning them from bidding on contracts worth billions of dollars.

The Massachusetts law had also triggered strong protests from the European Union, which argued in a complaint with the World Trade Organization that it violated international regulations on government procurement.

In his ruling Wednesday, Tauro said the so-called Burma Law in Massachusetts is simply unconstitutional.

“Massachusetts’ concern for the welfare of the people of Myanmar . . . may well be regarded as admirable,” he said. But because the federal government has exclusive power to make foreign policy, “the proper forum to raise such concerns is the U.S. Congress.”

Frank Kittredge, president of the trade group, applauded Tauro’s ruling.

“We share concerns over reported human rights abuses in Burma. However, our system of government was not designed to allow the 50 states and hundreds of municipalities their own individual foreign policies,” he said.

Advocates for selective-purchasing laws have argued that local governments have the right not to use taxpayer funds to support companies that indirectly support repressive regimes.

They contend that economic activism is appropriate against Myanmar, whose military government has been condemned for using forced labor, imprisoning and torturing political opponents, and for harshly repressing ethnic minorities.

Advocates point out that U.S. cities enacted dozens of similar laws that were effective in helping to dismantle the apartheid regime in South Africa. Other courts have rejected legal challenges to such laws.

“If selective purchasing had been banned 10 years ago, [South African President] Nelson Mandela might be still in prison today,” said Byron Rushing, the Democratic state representative who wrote Massachusetts’ Burma Law.

Thomas A. Barnaco, a Massachusetts assistant attorney general who defended the law before Tauro, said his office is considering an appeal of the ruling.