OCTOBER TERM, 1999
Syllabus
CROSBY, SECRETARY OF ADMINISTRATION AND FINANCE OF
MASSACHUSETTS, ET AL.
v.
NATIONAL FOREIGN TRADE COUNCIL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT
No. 99-474. Argued March 22, 2000-Decided June 19,2000
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.
Held: 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,
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 frustra-
365
tion 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. Cas tani as, 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
HallwardDriemeier, David R. Andrews, Neal S. Wolin, and Andrew
J. Pincus.*
*Briefs of
amici curiae urging reversal were filed for
the State of Arkansas et al. by
Heidi Heitkamp, Attorney
General of North Dakota,
Douglas A. Bahr, Solicitor General,
and
Beth Angus Baumstark, Assistant Attorney General, and by
the Attorneys General for their respective States as follows:
Mark Pryor of Arkansas,
Bill Lockyer of California,
Ken Salazar of Colorado,
Richard Blumenthal of
Connecticut,
Earl I. Anzai of Hawaii,
Richard P.
Ieyoub of Louisiana,
Andrew Ketterer of Maine,
J.
Joseph Curran, Jr., of Maryland,
Mike Hatch of
Minnesota,
Jeremiah W (Jay) Nixon of Missouri,
Philip T.
McLaughlin of New Hampshire,
John J. Farmer,
Jr., of New Jersey,
Patricia A. Madrid of New Mexico,
W A.
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,l is invalid under the Supremacy Clause of the National
Constitution owing to its threat of frustrating federal statutory
objectives. We hold that it is.
I
In June 1996, Massachusetts adopted "An Act Regulating State
Contracts with Companies Doing Business with or in
Drew Edmondson of Oklahoma,
Hardy Myers of Oregon,
D. Michael Fisher of Pennsylvania,
Sheldon Whitehouse
of Rhode Island,
John Cornyn of Texas,
Jan Graham of
Utah,
William H. Sorrell of Vermont, and
Christine O.
Gregoire of Washington; for the Council of State Governments
et al. by
Richard Ruda and
James I. Crowley; for
Senator Barbara Boxer et al. by
John Echeverria, Robert
Stumberg, and
Matthew C.
Porterfield; for the New
York City Comptroller et al. by
Sara C.
Kay and
Jane R. Levine; and for Alliance for Democracy et al. by
Deborah Anker.
Briefs of
amici curiae urging affirmance were filed for
Representative Douglas Bereuter et al. by
John Vanderstar,
Charles Clark, Eric D. Brown, and
W Thomas McCraney III;
for Associated Industries of Massachusetts et al. by
Michael
F.
Malamut; for the Chamber of Commerce of the United States
et al. by
Daniel M. Price, Robin S.
Conrad, Jan
Amundson, and
Quentin Riegel; for the European
Communities et al. by
Richard L. A. Weiner and
David
G.
Leitch; for the Industry Coalition on Technology Transfer
by
Eric L. Hirschhorn and
Terence Murphy; for the
Washington Legal Foundation by
Daniel J. Popeo
and
R. Shawn Gunnarson; and for Gerald R. Ford et al. by
Andrew N. Vollmer, Carol J. Banta, Martin S.
Kaufman, and
Edwin L. Lewis III.
Kenneth B. Clark filed a brief for the Coalition for
Local Sovereignty as
amicus curiae.
1 The Court of Appeals noted that the ruling military government
of "Burma changed [the country's] name to Myanmar in 1989," but the
court then said it would use the name Burma since both parties and
amici curiae, the state law, and the federal law all do so.
National Foreign Trade Council v.
Natsios, 181 F.3d
38, 45, n. 1
(CA1 1999). We follow suit, noting that our
use of this term, like the First Circuit's, is not intended to
express any political view. See
ibid.
367
Burma (Myanmar)," 1996 Mass. Acts 239, ch. 130 (codified at
Mass. Gen. Laws §§ 7:22G-7:22M, 40 F% (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
368
procurement is of medical supplies, § 7:221; 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 imposing a set of mandatory and
conditional sanctions on Burma. See Foreign Operations, Export
Financing, and Related Programs Appropriations Act, 1997, § 570,
110 Stat. 3009-166 to 3009167 (enacted by the Omnibus Consolidated
Appropriations Act, 1997, § 101(c), 110 Stat. 3009-121 to
3009-172). The federal Act has five basic parts, three substantive
and two procedural.
First, it imposes three sanctions directly on Burma. It bans all
aid to the Burmese Government except for humanitarian assistance,
counternarcotics efforts, and promotion of human rights and
democracy. § 570(a)(1). The statute instructs United States
representatives to international financial institutions to vote
against loans or other assistance to or for Burma, § 570(a)(2), and
it provides that no entry visa shall be issued to any Burmese
Government official unless required by treaty or to staff the
Burmese mission to the United Nations, § 570(a)(3). These
restrictions are to remain in effect "[u]ntil such time as the
President determines and certifies to Congress that Burma has made
measurable and substantial progress in improving human rights
practices and implementing democratic government." § 570(a).
2 According to the District Court, companies may challenge their
inclusion on the list by submitting an affidavit stating that they
do no business with Burma.
National Foreign Trade Council v.
Baker, 26 F. Supp. 2d 287, 289 (Mass. 1998). The
Massachusetts Executive Office's Operational Services Division
makes a final determination.
Ibid.
369
Second, the federal Act authorizes the President to impose
further sanctions subject to certain conditions. He may prohibit
"United States persons" from "new investment" in Burma, and shall
do so if he determines and certifies to Congress that the Burmese
Government has physically harmed, rearrested, or exiled Daw Aung
San Suu Kyi (the opposition leader selected to receive the Nobel
Peace Prize), or has committed "large-scale repression of or
violence against the Democratic opposition." § 570(b). "New
investment" is defined as entry into a contract that would favor
the "economical development of resources located in Burma," or
would provide ownership interests in or benefits from such
development, § 570(f)(2), but the term specifically excludes (and
thus excludes from any Presidential prohibition) "entry into,
performance of, or financing of a contract to sell or purchase
goods, services, or technology,"
ibid.
Third, the statute directs the President to work to develop "a
comprehensive, multilateral strategy to bring democracy to and
improve human rights practices and the quality of life in Burma." §
570(c). He is instructed to cooperate with members of the
Association of Southeast Asian Nations (ASEAN) and with other
countries having major trade and investment interests in Burma to
devise such an approach, and to pursue the additional objective of
fostering dialogue between the ruling State Law and Order
Restoration Council (SLORC) and democratic opposition groups.
Ibid.
As for the procedural provisions of the federal statute, the
fourth section requires the President to report periodically to
certain congressional committee chairmen on the progress toward
democratization and better living conditions in Burma as well as on
the development of the required strategy. § 570(d). And the fifth
part of the federal Act authorizes the President "to waive,
temporarily or permanently, any sanction [under the federal Act]
... if he determines and certifies to Congress that the application
of such sanction
370
would be contrary to the national security interests of the
United States." § 570(e).
On May 20, 1997, the President issued the Burma Executive Order,
Exec. Order No. 13047, 3 CFR 202 (1997 Comp.). He certified for
purposes of § 570(b) that the Government of Burma had "committed
large-scale repression of the democratic opposition in Burma" and
found that the Burmese Government's actions and policies
constituted "an unusual and extraordinary threat to the national
security and foreign policy of the United States," a threat
characterized as a national emergency. The President then
prohibited new investment in Burma "by United States persons,"
Exec. Order No. 13047, § 1, any approval or facilitation by a
United States person of such new investment by foreign persons, §
2(a), and any transaction meant to evade or avoid the ban, § 2(b).
The order generally incorporated the exceptions and exemptions
addressed in the statute. §§ 3, 4. Finally, the President delegated
to the Secretary of State the tasks of working with ASEAN and other
countries to develop a strategy for democracy, human rights, and
the quality of life in Burma, and of making the required
congressional reports.3 § 5.
II
Respondent National Foreign Trade Council (Council) is a
nonprofit corporation representing companies engaged in foreign
commerce; 34 of its members were on the Massachusetts restricted
purchase list in 1998.
National Foreign Trade Council v.
Natsios, 181 F.3d
38, 48
(CA1 1999). Three withdrew from Burma after the
passage of the state Act, and one member had its bid for a
procurement contract increased by 10 percent under the provision of
the state law
3 The President also delegated authority to implement the policy
to the Secretary of the Treasury, in consultation with the
Secretary of State. § 6. On May 21, 1998, the Secretary of the
Treasury issued federal regulations implementing the President's
Executive Order. See 31 CFR pt. 537 (1999) (Burmese Sanctions
Regulations).
371
allowing acceptance of a low bid from a listed bidder only if
the next-to-Iowest bid is more than 10 percent higher.
Ibid.
In April 1998, the Council filed suit in the United States
District Court for the District of Massachusetts, seeking
declaratory and injunctive relief against the petitioner state
officials charged with administering and enforcing the state Act
(whom we will refer to simply as the State).4 The Council argued
that the state law unconstitutionally infringed on the federal
foreign affairs power, violated the Foreign Commerce Clause, and
was preempted by the federal Act. After detailed stipulations,
briefing, and argument, the District Court permanently enjoined
enforcement of the state Act, holding that it "unconstitutionally
impinge[d] on the federal government's exclusive authority to
regulate foreign affairs."
National Foreign Trade Council v.
Baker, 26 F. Supp. 2d 287, 291 (Mass. 1998).
The United States Court of Appeals for the First Circuit
affirmed on three independent grounds. 181 F. 3d, at 45. It found
the state Act unconstitutionally interfered with the foreign
affairs power of the National Government under
Zschernig v.
Miller, 389 U.
S. 429 (1968), see 181 F. 3d, at 52-55; violated the dormant
Foreign Commerce Clause, U. S. Const., Art. I, § 8, cl. 3, see 181
F. 3d, at 61-71; and was preempted by the congressional Burma Act,
see
id., at 71-77.
The State's petition for certiorari challenged the decision on
all three grounds and asserted interests said to be shared by other
state and local governments with similar measures.5 Though opposing
certiorari, the Council acknowledged the
4 One of the state offices changed incumbents twice during
litigation before reaching this Court, see
National Foreign
Trade Council v.
Natsios, 181 F.3d
38, 48, n. 4
(CA1 1999), and once more after we granted
certiorari.
5 "At least nineteen municipal governments have enacted
analogous laws restricting purchases from companies that do
business in Burma."
Id., at 47; Pet. for Cert. 13 (citing N.
Y. C. Admin. Code § 6-115 (1999); Los Angeles Admin. Code, Art. 12,
§ 10.38
et seq. (1999); Philadelphia Code § 17-104(b)
(1999); Vermont H. J. Res. 157 (1998); 1999 Vt. Laws No. 13).
372
significance of the issues and the need to settle the
constitutionality of such laws and regulations. Brief in Opposition
18-19. We granted certiorari to resolve these important questions,
528 U. S. 1018 (1999), and now affirm.
III
A fundamental principle of the Constitution is that Congress has
the power to preempt state law. Art. VI, cl. 2;
Gibbons v.
Ogden, 9 Wheat. 1, 211 (1824);
Savage v.
Jones, 225 U.
S. 501, 533 (1912);
California v.
ARC America
Corp., 490 U. S.
93, 101 (1989). Even without an express provision for
preemption, we have found that state law must yield to a
congressional Act in at least two circumstances. When Congress
intends federal law to "occupy the field," state law in that area
is preempted.
Id., at 100; cf.
United States v.
Locke, 529 U.
S. 89, 115 (2000) (citing
Charleston &
Western
Carolina R. Co. v.
Varnville Furniture Co., 237 U. S. 597, 604
(1915)). And even if Congress has not occupied the field, state law
is naturally preempted to the extent of any conflict with a federal
statute.6
Hines v.
Davidowitz, 312 U. S. 52, 66-67
(1941);
ARC America Corp., supra, at 100-101;
Locke,
supra, at 109. We will find preemption where it is impossible
for a private party to comply with both state and federal law, see,
e. g., Florida Lime &
Avocado Growers, Inc.
v.
6 We recognize, of course, that the categories of preemption are
not "rigidly distinct."
English v.
General Elec. Co.,
496 U. S. 72, 79,
n. 5 (1990). Because a variety of state laws and regulations may
conflict with a federal statute, whether because a private party
cannot comply with both sets of provisions or because the
objectives of the federal statute are frustrated, "field
pre-emption may be understood as a species of conflict
pre-emption,"
id., at 79-80, n. 5; see also
Gade v.
National Solid Wastes Management Assn., 505 U. S. 88, 104, n. 2
(1992) (quoting
English, supra); 505 U. S., at 115-116
(SOUTER, J., dissenting) (noting similarity between
"purposeconflict pre-emption" and preemption of a field, and citing
L. Tribe, American Constitutional Law 486 (2d ed. 1988)); 1 L.
Tribe, American Constitutional Law 1177 (3d ed. 2000) (noting that
"field" preemption may fall into any of the categories of
express, implied, or conflict preemption).
373
Paul, 373
U. S. 132, 142-143 (1963), and where "under the circumstances
of [a] particular case, [the challenged state law] stands as an
obstacle to the accomplishment and execution of the full purposes
and objectives of Congress."
Hines, supra, at 67. What is a
sufficient obstacle is a matter of judgment, to be informed by
examining the federal statute as a whole and identifying its
purpose and intended effects:
"For when the question is whether a Federal act overrides a
state law, the entire scheme of the statute must of course be
considered and that which needs must be implied is of no less force
than that which is expressed. If the purpose of the act cannot
otherwise be accomplished-if its operation within its chosen field
else must be frustrated and its provisions be refused their natural
effect-the state law must yield to the regulation of Congress
within the sphere of its delegated power." Savage, supra, at
533, quoted in Hines, supra, at 67, n. 20.
Applying this standard, we see the state Burma law as an
obstacle to the accomplishment of Congress's full objectives under
the federal Act.7 We find that the state law undermines the
intended purpose and "natural effect" of at least three provisions
of the federal Act, that is, its delegation of effective discretion
to the President to control economic
7The State concedes, as it must, that in addressing the subject
of the federal Act, Congress has the power to preempt the state
statute. See Reply Brief for Petitioners 2; Tr. of Oral Arg.
5-6.
We add that we have already rejected the argument that a State's
"statutory scheme ... escapes pre-emption because it is an exercise
of the State's spending power rather than its regulatory power."
Wisconsin Dept. of Industry v.
Gould Inc., 475 U. S. 282, 287
(1986). In
Gould, we found that a Wisconsin statute
debarring repeat violators of the National Labor Relations Act, 29
U. S. C. § 151
et seq., from contracting with the State was
preempted because the state statute's additional enforcement
mechanism conflicted with the federal Act. 475 U. S., at 288-289.
The fact that the State "ha[d] chosen to use its spending power
rather than its police power" did not reduce the potential for
conflict with the federal statute.
Ibid.
374
sanctions against Burma, its limitation of sanctions solely to
United States persons and new investment, and its directive to the
President to proceed diplomatically in developing a comprehensive,
multilateral strategy toward Burma.8
A
First, Congress clearly intended the federal Act to provide the
President with flexible and effective authority over economic
sanctions against Burma. Although Congress immediately put in place
a set of initial sanctions (prohibiting bilateral aid, § 570(a)(1),
support for international financial assistance, § 570(a)(2), and
entry by Burmese officials into the United States, § 570(a)(3)), it
authorized the President to terminate any and all of those measures
upon determining and certifying that there had been progress in
human rights and democracy in Burma. § 570(a). It invested the
President with the further power to ban new investment by United
States persons, dependent only on specific Presidential findings of
repression in Burma. § 570(b). And, most significantly, Congress
empowered the President "to waive, temporarily or permanently, any
sanction [under the federal Act] ... if he determines and certifies
to Congress that the application of such sanction would be contrary
to the national security interests of the United States." §
570(e).
8We leave for another day a consideration in this context of a
presumption against preemption. See
United States v.
Locke, 529 U.
S. 89, 108 (2000). Assuming,
arguendo, that some
presumption against preemption is appropriate, we conclude, based
on our analysis below, that the state Act presents a sufficient
obstacle to the full accomplishment of Congress's objectives under
the federal Act to find it preempted. See
Hines v.
Davidowitz, 312
U. S. 52, 67 (1941).
Because our conclusion that the state Act conflicts with federal
law is sufficient to affirm the judgment below, we decline to speak
to field preemption as a separate issue, see n. 6,
supra, or
to pass on the First Circuit's rulings addressing the foreign
affairs power or the dormant Foreign Commerce Clause. See
Ashwander v.
TVA, 297 U. S. 288, 346-347
(1936) (concurring opinion).
375
This express investiture of the President with statutory
authority to act for the United States in imposing sanctions with
respect to the Government of Burma, augmented by the flexibility 9
to respond to change by suspending sanctions in the interest of
national security, recalls Justice Jackson's observation in
Youngstown Sheet &
Tube Co. v.
Sawyer,
343 U. S. 579,
635 (1952): "When the President acts pursuant to an express or
implied authorization of Congress, his authority is at its maximum,
for it includes all that he possesses in his own right plus all
that Congress can delegate." See also
id., at 635-636, n. 2
(noting that the President's power in the area of foreign relations
is least restricted by Congress and citing
United States v.
Curtiss-Wright Export Corp., 299 U. S. 304 (1936)). Within
the sphere defined by Congress, then, the statute has placed the
President in a position with as much discretion to exercise
economic leverage against Burma, with an eye toward national
security, as our law will
9 Statements by the sponsors of the federal Act underscore the
statute's clarity in providing the President with flexibility in
implementing its Burma sanctions policy. See 142 Congo Rec. 19212
(1996) (statement of principal sponsor Sen. Cohen) (emphasizing
importance of providing "the administration flexibility in reacting
to changes, both positive and negative, with respect to the
behavior of the [Burmese regime]);
id., at 19213;
id., at 19221 (statement of cosponsor Sen. McCain)
(describing the federal Act as "giv[ing] the President, who,
whether Democrat or Republican, is charged with conducting our
Nation's foreign policy, some flexibility");
id., at 19220
(statement of cosponsor Sen. Feinstein) ("We need to be able to
have the flexibility to remove sanctions and provide support for
Burma if it reaches a transition stage that is moving toward the
restoration of democracy, which all of us support"). These sponsors
chose a pliant policy with the explicit support of the Executive.
See,
e. g., id., at 19219 (letter from Barbara
Larkin, Assistant Secretary, Legislative Affairs, U. S. Department
of State to Sen. Cohen) (admitted by unanimous consent) ("We
believe the current and conditional sanctions which your language
proposes are consistent with Administration policy. As we have
stated on several occasions in the past, we need to maintain our
flexibility to respond to events in Burma and to consult with
Congress on appropriate responses to ongoing and future development
there").
376
admit. And it is just this plenitude of Executive authority that
we think controls the issue of preemption here. The President has
been given this 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 simply implausible that Congress would
have gone to such lengths to empower the President if it had been
willing to compromise his effectiveness by deference to every
provision of state statute or local ordinance that might, if
enforced, blunt the consequences of discretionary Presidential
action.10
And that is just what the Massachusetts Burma law would do in
imposing a different, state system of economic pressure against the
Burmese political regime. As will be seen, the state statute
penalizes some private action that the federal Act (as administered
by the President) may allow, and pulls levers of influence that the
federal Act does not reach. But the point here is that the state
sanctions are immediate,l1 see 1996 Mass. Acts 239, ch. 130, § 3
(restricting all contracts after law's effective date); Mass. Gen.
Laws § 7:22K (1997)
10 The State makes arguments that could be read to suggest that
Congress's objective of Presidential flexibility was limited to
discretion solely over the sanctions in the federal Act, and that
Congress implicitly left control over state sanctions to the State.
Brief for Petitioners 19-24. We reject this cramped view of
Congress's intent as against the weight of the evidence. Congress
made no explicit statement of such limited objectives. More
importantly, the federal Act itself strongly indicates the
opposite. For example, under the federal Act, Congress explicitly
identified protecting "national security interests" as a ground on
which the President could suspend federal sanctions. § 570(e), 110
Stat. 3009-167. We find it unlikely that Congress intended both to
enable the President to protect national security by giving him the
flexibility to suspend or terminate federal sanctions and
simultaneously to allow Massachusetts to act at odds with the
President's judgment of what national security requires.
11 These provisions strongly resemble the immediate sanctions on
investment that appeared in the proposed section of H. R. 3540 that
Congress rejected in favor of the federal Act. See H. R. 3540,
104th Cong., 2d Sess., § 569(1) (1996).
377
(authorizing regulations for timely and effective
implementation), and perpetual, there being no termination
provision, see,
e. g., § 7:22J (restricted companies
list to be updated at least every three months). This unyielding
application undermines the President's intended statutory authority
by making it impossible for him to restrain fully the coercive
power of the national economy when he may choose to take the
discretionary action open to him, whether he believes that the
national interest requires sanctions to be lifted, or believes that
the promise of lifting sanctions would move the Burmese regime in
the democratic direction. Quite simply, if the Massachusetts law is
enforceable the President has less to offer and less economic and
diplomatic leverage as a consequence. In
Dames &
Moore v.
Regan, 453 U. S. 654 (1981), we
used the metaphor of the bargaining chip to describe the
President's control of funds valuable to a hostile country,
id., at 673; here, the state Act reduces the value of the
chips created by the federal statute.12 It thus "stands as an
obstacle to the accomplishment and execution of the full purposes
and objectives of Congress."
Hines, 312 U. S., at 67.
B
Congress manifestly intended to limit economic pressure against
the Burmese Government to a specific range. The federal Act
confines its reach to United States persons, § 570(b), imposes
limited immediate sanctions, § 570(a), places only a conditional
ban on a carefully defined area of "new investment," § 570(f)(2),
and pointedly exempts contracts to sell or purchase goods,
services, or technology, § 570(f)(2). These detailed provisions
show that Congress's calibrated
12 The sponsors of the federal Act obviously anticipated this
analysis.
See,
e. g., 142 Congo Rec., at 19220 (statement of
Sen. Feinstein) ("We may be able to have the effect of nudging the
SLORC toward an increased dialog with the democratic opposition.
That is why we also allow the President to lift sanctions").
378
Burma policy is a deliberate effort "to steer a middle path,"
id., at
73.13
The State has set a different course, and its statute conflicts
with federal law at a number of points by penalizing individuals
and conduct that Congress has explicitly exempted or excluded from
sanctions. While the state Act differs from the federal in relying
entirely on indirect economic leverage through third parties with
Burmese connections, it otherwise stands in clear contrast to the
congressional scheme in the scope of subject matter addressed. It
restricts all contracts between the State and companies doing
business in Burma, § 7:22H(a), except when purchasing medical
supplies and other essentials (or when short of comparable bids), §
7:221. It is specific in targeting contracts to pro-
13 The fact that Congress repeatedly considered and rejected
targeting a broader range of conduct lends additional support to
our view. Most importantly, the federal Act, as passed, replaced
the original proposed section of H. R. 3540, which barred "any
investment in Burma" by a United States national without exception
or limitation. See H. R. 3540,
supra, § 569(1). Congress
also rejected a competing amendment, S. 1511, 104th Cong., 1st
Sess. (Dec. 29, 1995), which similarly provided that "United States
nationals shall not make any investment in Burma," § 4(b)(1), and
would have permitted the President to impose conditional sanctions
on the importation of "articles which are produced, manufactured,
grown, or extracted in Burma," § 4(c)(1), and would have barred all
travel by United States nationals to Burma, § 4(c)(2). Congress had
rejected an earlier amendment that would have prohibited all United
States investment in Burma, subject to the President's power to
lift sanctions.
Statements of the sponsors of the federal Act also lend weight
to the conclusions that the limits were deliberate. See,
e.
g., 142 Congo Rec., at 19279 (statement of Sen. Breaux)
(characterizing the federal Act as "strik[ing] a balance between
unilateral sanctions against Burma and unfettered United States
investment in that country"). The scope of the exemptions was
discussed, see
ibid. (statements of Sens. Nickles and
Cohen), and broader sanctions were rejected, see
id., at
19212 (statement of Sen. Cohen);
id., at 19280 (statement of
Sen. Murkowski) ("Instead of the current draconian sanctions
proposed in the legislation before us, we should adopt an approach
that effectively secures our national interests").
379
vide financial services, § 7:22G(b), and general goods and
services, § 7:22G(d), to the Government of Burma, and thus
prohibits contracts between the State and United States persons for
goods, services, or technology, even though those transactions are
explicitly exempted from the ambit of new investment prohibition
when the President exercises his discretionary authority to impose
sanctions under the federal Act. § 570(f)(2).
As with the subject of business meant to be affected, so with
the class of companies doing it: the state Act's generality stands
at odds with the federal discreteness. The Massachusetts law
directly and indirectly imposes costs on all companies that do any
business in Burma, § 7:22G, save for those reporting news or
providing international telecommunications goods or services, or
medical supplies, §§ 7:22H(e), 7:221. It sanctions companies
promoting the importation of natural resources controlled by the
Government of Burma, or having any operations or affiliates in
Burma. § 7:22G. The state Act thus penalizes companies with
pre-existing affiliates or investments, all of which lie beyond the
reach of the federal Act's restrictions on "new investment" in
Burmese economic development. §§ 570(b), 570(f)(2). The state Act,
moreover, imposes restrictions on foreign companies as well as
domestic, whereas the federal Act limits its reach to United States
persons.
The conflicts are not rendered irrelevant by the State's
argument that there is no real conflict between the statutes
because they share the same goals and because some companies may
comply with both sets of restrictions. See Brief for Petitioners
21-22. The fact of a common end hardly neutralizes conflicting
means,14 see
Gade v.
National Solid
14 The State's reliance on
CTS Corp. v.
Dynamics Corp.
of America, 481 U. S. 69, 82-83 (1987), for the proposition
that "[w]here the state law furthers the purpose of the federal
law, the Court should not find conflict" is misplaced. See Brieffor
Petitioners 21-22. In
CTS Corp., we found that an Indiana
state securities law "further[ed] the federal policy of
investor
380
Wastes Management Assn., 505 U. S. 88, 103 (1992),
and the fact that some companies may be able to comply with both
sets of sanctions does not mean that the state Act is not at odds
with achievement of the federal decision about the right degree of
pressure to employ. See
Hines, 312 U. S., at 61 ("The basic
subject of the state and federal laws is identical");
id.,
at 67 (finding conflict preemption). "'[C]onflict is imminent'"
when "'two separate remedies are brought to bear on the same
activity,'"
Wisconsin Dept. of Industry v.
Gould
Inc., 475 U. S.
282, 286 (1986) (quoting
Garner v.
Teamsters,
346 U. S. 485,
498-499 (1953)). Sanctions are drawn not only to bar what they
prohibit but to allow what they permit, and the inconsistency of
sanctions here undermines the congressional calibration of
force.
C
Finally, the state Act is at odds with the President's intended
authority to speak for the United States among the world's nations
in developing a "comprehensive, multilateral strategy to bring
democracy to and improve human rights practices and the quality of
life in Burma." § 570(c). Congress called for Presidential
cooperation with members of ASEAN and other countries in developing
such a strategy,
ibid., directed the President to encourage
a dialogue between the Government of Burma and the democratic
opposition,
ibid.,15 and required him to report to the
Congress on the progress of his diplomatic efforts, § 570(d). As
with Con-
protection," 481 U. S., at 83, but we also examined whether the
state law conflicted with federal law "[i]n implementing its goal,"
ibid. Identity of ends does not end our analysis of
preemption. See
Gould, 475 U. S., at 286.
15 The record supports the conclusion that Congress considered
the development of a multilateral sanctions strategy to be a
central objective of the federal Act. See,
e. g., 142
Congo Rec., at 19212 (remarks of Sen. Cohen) ("[T]o be effective,
American policy in Burma has to be coordinated with our Asian
friends and allies");
id., at 19219 (remarks of Sen.
Feinstein) ("Only a multilateral approach is likely to be
successful").
381
gress's explicit delegation to the President of power over
economic sanctions, Congress's express command to the President to
take the initiative for the United States among the international
community invested him with the maximum authority of the National
Government, cf.
Youngstown Sheet &
Tube Co., 343
U. S., at 635, in harmony with the President's own constitutional
powers, U. S. Const., Art. II, § 2, cl. 2 ("[The President] shall
have Power, by and with the Advice and Consent of the Senate, to
make Treaties" and "shall appoint Ambassadors, other public
Ministers and Consuls"); § 3 ("[The President] shall receive
Ambassadors and other public Ministers"). This clear mandate and
invocation of exclusively national power belies any suggestion that
Congress intended the President's effective voice to be obscured by
state or local action.
Again, the state Act undermines the President's capacity, in
this instance for effective diplomacy. It is not merely that the
differences between the state and federal Acts in scope and type of
sanctions threaten to complicate discussions; they compromise the
very capacity of the President to speak for the Nation with one
voice in dealing with other governments. We need not get into any
general consideration of limits of state action affecting foreign
affairs to realize that the President's maximum power to persuade
rests on his capacity to bargain for the benefits of access to the
entire national economy without exception for enclaves fenced off
willy-nilly by inconsistent political tactics.16 When such
16 Such concerns have been raised by the President's
representatives in the Executive Branch. See Testimony of Under
Secretary of State Eizenstat before the Trade Subcommittee of the
House Ways and Means Committee (Oct. 23, 1997) (hereinafter
Eizenstat testimony), App. 116 ("[U]nless sanctions measures are
well conceived and coordinated, so that the United States is
speaking with one voice and consistent with our international
obligations, such uncoordinated responses can put the US on the
political defensive and shift attention away from the problem to
the issue of sanctions themselves"). We have expressed similar
concerns in our cases on foreign commerce and foreign relations.
See,
e. g., Japan Line,
382
exceptions do qualify his capacity to present a coherent
position on behalf of the national economy, he is weakened, of
course, not only in dealing with the Burmese regime, but in working
together with other nations in hopes of reaching common policy and
"comprehensive" strategy.17 Cf.
Dames &
Moore,
453 U. S., at 673-674.
While the threat to the President's power to speak and bargain
effectively with other nations seems clear enough, the record is
replete with evidence to answer any skeptics. First, in response to
the passage of the state Act, a number of this country's allies and
trading partners filed formal protests with the National
Government, see 181 F. 3d, at 47 (noting protests from Japan, the
European Union (EU), and ASEAN), including an official
Note
Verbale from the EU to the Department of State protesting the
state Act.18 EU officials have warned that the state Act "could
have a damaging effect on bilateral EU-US relations." Letter of
Hugo
Ltd. v.
County of Los Angeles, 441 U. S. 434, 449
(1979);
Chy Lung v.
Freeman, 92 U. S. 275, 279 (1876);
cf. The Federalist No. 80, pp. 535-536 (J. Cooke ed. 1961) (A.
Hamilton) ("[T]he peace of the WHOLE ought not to be left at the
disposal of a PART. The union will undoubtedly be answerable to
foreign powers for the conduct of its members").
17The record reflects that sponsors of the federal Act were well
aware of this concern and provided flexibility to the President
over sanctions for that very reason. See,
e. g., 142
Congo Rec., at 19214 (statement of Sen. Thomas) ("Although I will
readily admit that our present relationship with Burma is not
especially deep, the imposition of mandatory economic sanctions
would certainly downgrade what little relationship we have.
Moreover, it would affect our relations with many of our allies in
Asia as we try to corral them into following our lead");
id., at 19219 (statement of Sen. Feinstein) ("It is
absolutely essential that any pressure we seek to put on the
Government of Burma be coordinated with the nations of ASEAN and
our European and Asian allies. If we act unilaterally, we are more
likely to have the opposite effect-alienating many of these allies,
while having no real impact on the ground").
18 In
amicus briefs here and in the courts below, the EU
has consistently taken the position that the state Act has created
"an issue of serious concern in EU-U. S. relations." Brief for
European Communities et al. as
Amici Curiae 6.
383
Paemen, Ambassador, European Union, Delegation of the European
Commission, to William F. Weld, Governor, State of Massachusetts,
Jan. 23, 1997, App. 75.
Second, the EU and Japan have gone a step further in lodging
formal complaints against the United States in the World Trade
Organization (WTO), claiming that the state Act violates certain
provisions of the Agreement on Government Procurement,19 H. R. Doc.
No. 103-316, p. 1719 (1994), and the consequence has been to
embroil the National Government for some time now in international
dispute proceedings under the auspices of the WTO. In their brief
before this Court, EU officials point to the WTO dispute as
threatening relations with the United States, Brief for European
Communities et al. as
Amici Curiae 7, and n. 7, and note
that the state Act has become the topic of "intensive discussions"
with officials of the United States at the highest levels, those
discussions including exchanges at the twice yearly EU-V. S.
Summit.20
Third, the Executive has consistently represented that the state
Act has complicated its dealings with foreign sovereigns and proven
an impediment to accomplishing objectives assigned it by Congress.
Assistant Secretary of State Larson, for example, has directly
addressed the mandate of the
19 Although the WTO dispute proceedings were suspended at the
request of Japan and the EU in light of the District Court's ruling
below, Letter of Ole Lundby, Chairman of the Panel, to Ambassadors
from the European Union, Japan, and the United States (Feb. 10,
1999), and have since automatically lapsed, Understanding on Rules
and Procedures Governing the Settlement of Disputes, 33
International Legal Materials 1125, 1234 (1994), neither of those
parties is barred from reinstating WTO procedures to challenge the
state Act in the future. In fact, the EU, as
amicus before
us, specifically represents that it intends to begin new WTO
proceedings should the current injunction on the law be lifted.
Brief for European Communities et al. as
Amici Curiae 7. We
express no opinion on the merits of these proceedings.
20 Senior Level Group Report to the U. S.-EU Summit in
Washington 3 (Dec. 17, 1999),
http://www.eurunion.org/partner/summit/Summit9912/
SLG Rept.html.
384
federal Burma law in saying that the imposition of unilateral
state sanctions under the state Act "complicate[s] efforts to build
coalitions with our allies" to promote democracy and human rights
in Burma. A. Larson, State and Local Sanctions: Remarks to the
Council of State Governments 2 (Dec. 8, 1998). "[T]he EU's
opposition to the Massachusetts law has meant that US government
high level discussions with EU officials often have focused not on
what to do about Burma, but on what to do about the Massachusetts
Burma law."
Id., at 3.21 This point has been consistently
echoed in the State Department:
"While the [Massachusetts sanctions on Burma] were adopted in
pursuit of a noble goal, the restoration of democracy in Burma,
these measures also risk shifting the focus of the debate with our
European Allies away from the best way to bring pressure against
the State Law and Order Restoration Council (SLORC) to a potential
WTO dispute over its consistency with our international
obligations. Let me be clear. We are working with Massachusetts in
the WTO dispute settlement process. But we must be honest in saying
that the threatened WTO case risks diverting United States' and
Europe's attention from focusing where it should be-on Burma."
Eizenstat testimony, App. 115.22
21 Assistant Secretary Larson also declared that the state law
"has hindered our ability to speak with one voice on the grave
human rights situation in Burma, become a significant irritant in
our relations with the EU and impeded our efforts to build a strong
multilateral coalition on Burma where we, Massachusetts and the EU
share a common goal." Assistant Secretary of State Alan P. Larson,
State and Local Sanctions: Remarks to the Council of State
Governments 3 (Dec. 8, 1998).
22 The United States, in its brief as
amicus curiae,
continues to advance this position before us. See Brief for United
States as
Amicus Curiae 8-9, and n. 7,34-35. This conclusion
has been consistently presented by senior United States officials.
See also Testimony of Deputy Assistant Secretary of State David
Marchick before the California State Assembly, Oct. 28, 1997, App.
137; Testimony of Deputy Assistant Secretary of State
385
This evidence in combination is more than sufficient to show
that the state Act stands as an obstacle in addressing the
congressional obligation to devise a comprehensive, multilateral
strategy.
Our discussion in
Barclays Bank PLC v.
Franchise
Tax Bd. of Cal., 512 U. S. 298, 327-329
(1994), of the limited weight of evidence of formal diplomatic
protests, risk of foreign retaliation, and statements by the
Executive does not undercut the point. In
Barclays, we had
the question of the preemptive effect of federal tax law on state
tax law with discriminatory extraterritorial effects. We found the
reactions of foreign powers and the opinions of the Executive
irrelevant in fathoming congressional intent because Congress had
taken specific actions rejecting the positions both of foreign
governments,
id., at 324-328, and the Executive,
id.,
at 328-329. Here, however, Congress has done nothing to render such
evidence beside the point. In consequence, statements of foreign
powers necessarily involved in the President's efforts to comply
with the federal Act, indications of concrete disputes with those
powers, and opinions of senior National Government officials are
competent and direct evidence of the frustration of congressional
objectives by the state Act.23 Although we do not unquestioningly
defer to the legal judgments expressed in Executive Branch
statements when determining a federal Act's preemptive charac-
David Marchick before the Maryland House of Delegates Committee
on Commerce and Government Matters, Mar. 25, 1998,
id., at
166 (same).
23 We find support for this conclusion in the statements of the
congressional sponsors of the federal Act, who indicated their
opinion that inflexible unilateral action would be likely to cause
difficulties in our relations with our allies and in crafting an
effective policy toward Burma. See n. 17,
supra. Moreover,
the facts that the Executive specifically called for flexibility
prior to the passage of the federal Act, and that the Congress
rejected less flexible alternatives and adopted the current law in
response to the Executive's communications, bolster the relevance
of the Executive's opinion with regard to its ability to accomplish
Congress's goals. See n. 9,
supra.
386
ter,
ibid., we have never questioned their competence to
show the practical difficulty of pursuing a congressional goal
requiring multinational agreement. We have, after all, not only
recognized the limits of our own capacity to "determinCe] precisely
when foreign nations will be offended by particular acts,"
Container Corp. of America v.
Franchise Tax Bd.,
463 U. S. 159,
194 (1983), but consistently acknowledged that the "nuances" of
"the foreign policy of the United States ... are much more the
province of the Executive Branch and Congress than of this Court,"
id., at 196;
Barclays, supra, at 327. In this case,
repeated representations by the Executive Branch supported by
formal diplomatic protests and concrete disputes are more than
sufficient to demonstrate that the state Act stands in the way of
Congress's diplomatic objectives.24
IV
The State's remammg argument is unavailing. It contends that the
failure of Congress to preempt the state Act
24 The State appears to argue that we should ignore the evidence
of the WTO dispute because under the federal law implementing the
General Agreement on Tariffs and Trade (GATT), Congress foreclosed
suits by private persons and foreign governments challenging a
state law on the basis of GATT in federal or state courts, allowing
only the National Government to raise such a challenge. See Uruguay
Round Agreements Act (URAA), § 102(c)(1), 108 Stat. 4818, 19 U. S.
C. §§ 3512(b)(2)(A), 3512(c)(1); see also "Statement of
Administrative Action" (SAA), reprinted in H. R. Doc. No. 103-216,
pp. 656, 675-677 (1994). To consider such evidence, in its view,
would effectively violate the ban by allowing private parties and
foreign nations to challenge state procurement laws in domestic
courts. But the terms of § 102 of the URAA and of the SAA simply do
not support this argument. They refer to challenges to state law
based on inconsistency with any of the "Uruguay Round Agreements."
The challenge here is based on the federal Burma law. We reject the
State's argument that the National Government's decisions to bar
such WTO suits and to decline to bring its own suit against the
Massachusetts Burma law evince its approval. These actions simply
do not speak to the preemptive effect of the federal sanctions
against Burma.
387
demonstrates implicit permission. The State points out that
Congress has repeatedly declined to enact express preemption
provisions aimed at state and local sanctions, and it calls our
attention to the large number of such measures passed against South
Africa in the 1980's, which various authorities cited have thought
were not preempted.25 The State stresses that Congress was aware of
the state Act in 1996, but did not preempt it explicitly when it
adopted its own Burma statute.26 The State would have us conclude
that Congress's continuing failure to enact express preemption
implies approval, particularly in light of occasional instances of
express preemption of state sanctions in the past.27
The argument is unconvincing on more than one level. A failure
to provide for preemption expressly may reflect noth-
25 See,
e. g., Board of Trustees v.
Mayor and City Council of Baltimore, 317 Md. 72,79-98,562 A.
2d 720, 744-749 (1989) (holding local divestment ordinance not
preempted by Comprehensive Anti-Apartheid Act of 1986 (CAAA)),
cert. denied
sub nom. Lubman v.
Mayor and City Council of
Baltimore, 493 U. S 1093 (1990); Constitutionality of South
Mrican Divestment Statutes Enacted by State and Local Goverments,
10 Op. Off. Legal Counsel 49, 64-66, 1986 WL 213238 (state and
local divestment and selective purchasing laws not preempted by
pre-CAAA federal law); H. R. Res. Nos. 99-548, 99-549 (1986)
(denying preemptive intent of CAAA); 132 Congo Rec. 23119-23129
(1986) (House debate on resolutions);
id., at 23292 (Sen.
Kennedy, quoting testimony of Laurence H. Tribe).
Amicus
Members of Congress in support of the State also note that when
Congress revoked its federal sanctions in response to the
democratic transition in that country, it refused to preempt the
state and local measures, merely "urg[ing]" both state and local
governments and private boycott participants to rescind their
sanctions. Brief for Senator Boxer et al. as
Amici Curiae 9,
citing South Mrican Democratic Transition Support Act of 1993, §
4(c)(1), 107 Stat. 1503.
26 The State also finds significant the fact that Congress did
not preempt state and local sanctions in a recent sanctions reform
bill, even though its sponsor seemed to be aware of such measures.
See H. R. Rep. No. 105-2708 (1997); 143 Congo Rec. E2080 (Oct. 23,
1997) (Rep. Hamilton).
27 See Export Administration Act of 1979, 50 U. S. C. App. §
2407(c) (1988 ed.) (Anti-Arab boycott of Israel provisions
expressly "preempt any law, rule, or regulation").
388
388 CROSBY
v. NATIONAL FOREIGN TRADE COUNCIL
SCALIA, J., concurring in judgment
ing more than the settled character of implied preemption
doctrine that courts will dependably apply, and in any event, the
existence of conflict cognizable under the Supremacy Clause does
not depend on express congressional recognition that federal and
state law may conflict,
Hines, 312 U. S., at 67. The State's
inference of congressional intent is unwarranted here, therefore,
simply because the silence of Congress is ambiguous. Since we never
ruled on whether state and local sanctions against South Africa in
the 1980's were preempted or otherwise invalid, arguable parallels
between the two sets of federal and state Acts do not tell us much
about the validity of the latter.
v
Because the state Act's provisions conflict with Congress's
specific delegation to the President of flexible discretion, with
limitation of sanctions to a limited scope of actions and actors,
and with direction to develop a comprehensive, multilateral
strategy under the federal Act, it is preempted, and its
application is unconstitutional, under the Supremacy Clause.
The judgment of the Court of Appeals for the First Circuit is
affirmed.
It is so ordered.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in
the judgment.
It is perfectly obvious on the face of this statute that
Congress, with the concurrence of the President, intended to
"provid[e] the President with flexibility in implementing its Burma
sanctions policy."
Ante, at 375, n. 9. I therefore see no
point in devoting a footnote to the interesting (albeit
unsurprising) proposition that "[s]tatements by the sponsors of the
federal Act" show that they shared this intent,
ibid., and
that a statement in a letter from a State Department officer shows
that flexibility had "the explicit support of the
389
Executive,"
ante, at 375, n. 9. This excursus is
especially pointless since the immediately succeeding footnote must
rely upon the statute itself (devoid of any support in statements
by "sponsors" or the "Executive") to refute the quite telling
argument that the statements were addressed only to flexibility in
administering the sanctions of the
federal Act, and said
nothing at all about state sanctions. See
ante, at 376, n.
10.
It is perfectly obvious on the face of the statute that Congress
expected the President to use his discretionary authority over
sanctions to "move the Burmese regime in the democratic direction,"
ante, at 377. I therefore see no point in devoting a
footnote to the interesting (albeit unsurprising) proposition that
"[t]he sponsors of the federal Act" shared this expectation,
ante, at 377, n. 12.
It is perfectly obvious on the face of the statute that
Congress's Burma policy was a "calibrated" one, which "limit[ed]
economic pressure against the Burmese Government to a specific
range,"
ante, at 377. I therefore see no point in devoting a
footnote to the interesting (albeit unsurprising) proposition that
bills imposing greater sanctions were introduced but not adopted,
ante, at 378, n. 13, and to the (even less surprising)
proposition that the sponsors of the legislation made clear that
its "limits were deliberate,"
ibid. And I would feel this
way even if I shared the Court's naIve assumption that the failure
of a bill to make it out of committee, or to be adopted when
reported to the floor, is the same as a congressional "reject[ion]"
of what the bill contained,
ibid. Curiously, the Court later
recognizes, in rejecting the argument that Congress's failure to
enact express pre-emption implies approval of the state Act, that
"the silence of Congress [may be] ambiguous."
Ante, at 388.
Would that the Court had come to this conclusion
before it
relied (several times) upon the implications of Congress's failure
to enact legislation, see
ante, at 376, n. 11, 378, n. 13,
385, n. 23.
390
It is perfectly obvious on the face of the statute that Congress
intended the President to develop a "multilateral strategy" in
cooperation with other countries. In fact, the statute says that in
so many words, see § 570(c), 110 Stat. 3009-166. I therefore see no
point in devoting two footnotes to the interesting (albeit
unsurprising) proposition that three Senators
also favored a
multilateral approach,
ante, at 380,
It is perfectly obvious from the record, as the Court discusses,
ante, at 382-385, that the inflexibility produced by the
Massachusetts statute has in fact caused difficulties with our
allies and has in fact impeded a "multilateral strategy." And as
the Court later says in another context, "the existence of conflict
cognizable under the Supremacy Clause does not depend on express
congressional recognition that federal and state law may conflict,"
ante, at 388. I therefore see no point in devoting a
footnote to the interesting (albeit unsurprising) fact that the
"congressional sponsors" of the Act and "the Executive" actually
predicted that inflexibility would have the effect of
causing difficulties with our allies and impeding a "multilateral
strategy,"
ante, at 385, n. 23.
Of course even if all of the Court's invocations of legislative
history were not utterly irrelevant, I would still object to them,
since neither the statements of individual Members of Congress
(ordinarily addressed to a virtually empty floor),* nor Executive
statements and letters addressed to congressional committees, nor
the nonenactment of other proposed legislation, is a reliable
indication of what a majority of both Houses of Congress intended
when they voted for the statute before us. The
only reliable
indication of
that intent-the only thing we know for sure
can be attributed
*Debate on the bill that became the present Act seems, in this
respect, not to have departed from the ordinary. Cf. 142 Congo Rec.
19263 (1996) (statement of Sen. McConnell) (noting, in debate
regarding which amendment to take up next: "I do not see anyone on
the Democratic side in the Chamber").
391
to
all of them-is the words of the bill that they voted
to make law. In a way, using unreliable legislative history to
confirm what the statute plainly says anyway (or what the record
plainly shows) is less objectionable since, after all, it has
absolutely no effect upon the outcome. But in a way, this utter
lack of necessity makes it even worse-calling to mind St.
Augustine's enormous remorse at stealing pears when he was not even
hungry, and just for the devil of it ("not seeking aught through
the shame, but the shame itself!"). The Confessions, Book 2, ~ 9,
in 18 Great Books of the Western World 10-11 (1952) (E. Pusey
transl. 1952).
In any case, the portion of the Court's opinion that I consider
irrelevant is quite extensive, comprising, in total, about
one-tenth of the opinion's size and (since it is in footnote type)
even more of the opinion's content. I consider that to be not just
wasteful (it was not preordained, after all, that this was to be a
25-page essay) but harmful, since it tells future litigants that,
even when a statute is clear on its face, and its effects clear
upon the record, statements from the legislative history may help
(and presumably harm) the case. If so, they must be researched and
discussed by counselwhich makes appellate litigation considerably
more time consuming, and hence considerably more expensive, than it
need be. This to my mind outweighs the arguable good that may come
of such persistent irrelevancy, at least when it is indulged in the
margins: that it may encourage readers to ignore our footnotes.
For this reason, I join only the judgment of the Court.
Comments
Be the first to comment
Leave a Comment