Hastings Constitutional Law Quarterly


Since the mid-1990s, many state and local governments have enacted a host of laws barring local governments' procurement of goods and services from persons doing business with certain pariah governments, including Burma (Myanmar), the People's Republic of China, Cuba, Nigeria and even Switzerland. Though ostensibly patterned after earlier laws, most notably longstanding "Buy American" laws and anti-apartheid laws of the 1980s, the latest wave of subnational sanctions statutes and ordinances is much broader in scope and application, raising troubling questions as to the constitutionality of such laws. An example is a Massachusetts statute forbidding the award of state contracts to companies with business ties to Myanmar. In November 1998, in National Foreign Trade Council v. Baker, the federal District Court for Massachusetts held that the statute encroached upon the Constitution's assignment of plenary authority over foreign affairs to the federal government. The Baker decision has opened the possibility that many other examples of these laws will now be subjected to constitutional challenge.

In this article, the authors analyze the constitutionality of state and local procurement sanctions on various grounds. The authors argue that such sanctions not only act as an unconstitutional infringement on the foreign affairs powers reserved to the federal government, as the Baker court held, but that they also violate the dormant Foreign Commerce Clause by impermissibly burdening foreign commerce. Contrary to suggestions that subnational sanctions are defensible under the "market-participant" exception to the dormant Commerce Clause, the authors conclude that such activities fall outside the intended scope of that exception.