Massachusetts Burma was a case of federal preemption.
In the Mass.-Burma case the court decided the federal government intended to preempt all state laws on that issue.
Mass. Burma Could instead have been resolved as a question of division of powers: federal versus state. Did Massachusetts even have competence to boycott Burma in the first place?
*Separation of powers = 3 branches
*Division of powers = federal or state
I would argue that
1) Massachusetts cannot boycott in the first place because of
a) the principle that interstate and international commerce is regulated by the federal not state governments
b) the fact that the federal government is the *exclusive* foreign policy actor
Massachusetts arguments was: this is state money, which can be spent however the state sees fit. As a general proposition that is true, but as we know, general rules have specific exceptions. Massaschusetts ordinarily could spend its money however it sees fit.
However, recall that:
private property may not be taken for private use; and that
private property may be taken for public use only with fair compensation.
There Are limits on the State and Federal governments sovereign prerogative to tax and spend!
Massachusetts can’t enact a law such as the “Eric Engle tax” nor can it use its taxes to pay a specific person gratuitiously (=for free).
Thus, it is logical that Massachusetts also cannot pass the “Massachusetts Foreign Service Tax” or “The Massachusetts Tax Russian Businesses in Massachusetts” law.
However, the court did not need to decide whether Massachusetts could boycott burma in the first place: parsimony. The court only decides what it must. Here, the federal court preempted the state law. Thus the court did not have to ask whether Massachusetts had the power to boycott Burma in the first place.
Admissibility of the Claim – Zuläßigkeit
The court ordinarily *only* decides arguments which are presented to it “case or controversy” requirement. (Article III Section 2 Clause 1)
Was the issue of the constitutionality of the original boycott “moot”? No! A Burmese business which lost a contract it bid low on could well have gone to court after the decision and would likely have won!
HOWEVER
Was the issue of the original boycott presented and litigated before the U.S. S.Ct.?
No. The court Only decides the case presented to it.
CONCURRENT POWERS
PREEMPTION
1. Explicit Preemption
2. Implicit Preemption
a. “occupy the field”
=Congressional intent
text, context (structure), history, teleology
b. “conflict preemption”
= impossible for a private party to comply with both the federal and the state law.
Preemption: Rules
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. ___, ___ (2000) (slip op., at 23) (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. Hines v. Davidowitz, 312
U. S. 52, 66-67 (1941); ARC
America Corp., supra, at 100-101; Locke, supra, at ___ (slip op., at 17). 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. 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:
Wisconsin Public
Intervenor v. Mortier 501 U.S. 597 (U.S.
Sup. Ct. 1991)
Rush Prudential HMO, Inc. v. Moran 122 S. Ct. 2151 (U.S. Sup. Ct. 2002)
Souter,
Justice The issue in this case is whether the statute, as
applied to health benefits provided by a health maintenance organization under
contract with an employee welfare benefit plan, is preempted [von Landesrecht durch bundesebenes Recht abgezogen].
SO: HOW TO EXPAND FEDERAL POWERS:
1. Implied powers through the “necessary and proper clause” (McCulloch)
4. International commerce (foreign policy) (Political Question Doctrine!)
5. Treaty power (foreign policy) (Political Question Doctrine!) (Missouri v. Holland)
6. Taxing power
*Rational Means to a Permissible Ends
7. Preemption (Mass. Burma)