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Published online by Cambridge University Press: 27 February 2017
181F.3d38(lstCir. 1999).
1 GMD did not seek Second Circuit review of the District Court's fact findings on irreparable harm or of that court's determination that Alliance almost certainly would prevail on the merits. See Brief for Petitioners 7. Nor does GMD cast any doubt on those matters here. Instead, GMD forthrightly concedes that had the District Court declined to issue the preliminary injunction, GMD would have had no assets available to satisfy the money judgment that Alliance ultimately obtained. See Tr. of Oral Arg. 8-9.
2 I agree, for the reasons Justice Scalia states, see ante, at 4-9, that the case is not moot; accordingly, I join Part II of the Court's opinion.
3 We have on three occasions considered the availability of a preliminary injunction to freeze assets pending litigation, see Deckert v. Independence Shares Corp., 311 U. S. 282 (1940); De Beers Consol. Mines, Ltd. v. United States, 325 U. S. 212 (1945); United States v. First Nat. City Bank, 379 U. S. 378 (1965). As the Court recognizes, see ante, at 14-18, these cases involved factual and legal circumstances markedly different from those presented in this case and thus do not rule out or in the provisional remedy at issue here.
4 In a series of cases implementing the desegregation mandate of Brown v. Board of Education, 347 U. S. 483 (1954), for example, we recognized the need for district courts to draw on their equitable jurisdiction to supervise various aspects of local school administration. See Freeman v. Pitts, 503 U. S. 467, 491-492 (1992) (describing responsibility shouldered by district courts, “in a manner consistent with the purposes and objectives of [their] equitable power,” first, to structure and supervise desegregation decrees, then, as school districts achieved compliance, to relinquish control at a measured pace). Similarly, courts enforcing the antitrust laws have superintended intricate programs of corporate dissolution or divestiture. See United States v. E. I. du Pont de Nemours ' Co., 366 U. S. 316, 328-331, and nn. 9-13 (1961) (cataloging cases); cf. United States v. American Tel. ' Tel. Co., 552 F.Supp. 131 (DC 1982), aff’d sub nom. Maryland v. United States, 460U. S. 1001 (1983) (approving consent decree that set in train lengthy judicial oversight of divestiture of telephone monopoly).
5 The Court suggests that a “debtor's right to a jury trial on [a] legal claim” counsels against the exercise of equity power here. Ante, at 21. But the decision to award provisional relief — whether equitable or legal — always rests with the judge. Moreover, the merits of any legal claim will be resolved by a jury, if there is any material issue of fact for trial, and findings made at the preliminary stage do not bind the jury. See Wasserman, , 67 Wash L. Rev., at 322–323.Google Scholar
6 Before the District Court, Alliance frankly acknowledged the existence of other, unrepresented creditors. While acting to protect its own interest, Alliance asked the District Court to fashion relief that “does not just directly benefit us, but benefits … the whole class of creditors” by creating “an even playing field” among creditors. App. to Pet. for Cert. 46a; see also id., at 45a (Alliance suggests that District Court direct GMD to set up a trust in compliance with Mexican law in order to oversee distributions to creditors). The Court supplies no reason to think that Alliance should have abandoned its rock-solid claim just because other creditors, for whatever reason, failed to bring suit. But cf. ante, at 23 (“respondents did not represent all of the holders of the Notes; they were an active few who sought to benefit at the expense of the other [creditors]“).
1 Burma changed its name to Myanmar in 1989. However, because the parties and amici curiae in this case have largely used the name Burma, the statute at issue is known as the Massachusetts Burma Law, and the federal law refers to Burma, we use Burma throughout this opinion. This device is meant only for the ease of the reader and is not intended to express any view regarding the name Myanmar.
2 The law defines “[s]tate agency” to include “all awarding authorities of the commonwealth, including, but not limited to, all executive offices, agencies, departments, commissions, and public institutions of higher education, and any office, department or division of the judiciary.” Mass. Gen. Laws ch. 7, § 22G. The law defines “state authorities]” to “include, but not be limited to” the following: Bay State Skills Corporation, centers of excellence, Community Economic Development Assistance Corporation, Community Development Finance Corporation, Government Land Bank, Massachusetts Bay Transportation Authority, Massachusetts Business Development Corporation, Massachusetts Capital Resource Company, Massachusetts Convention Center Authority, Massachusetts Corporation for Educational Telecommunications, Massachusetts educational loan authority, Massachusetts Health and Educational Facilities Authority, Massachusetts Higher Education Assistance Corporation, Massachusetts Housing Finance Agency, Massachusetts Horse Racing Authority, Massachusetts Industrial Finance Agency, Massachusetts Industrial Service Program, Massachusetts Legal Assistance Corporation, Massachusetts Port Authority, Massachusetts Product Development Corporation, Massachusetts Technology Development Corporation, Massachusetts Technology Park Corporation, Massachusetts Turnpike Authority, Massachusetts Water Resources Authority, Nantucket Land Bank, New England Loan Marketing Corporation, pension reserves investment management board, State College Building Authority, Southeastern Massachusetts University Building Authority, Thrift Institutions Fund for Economic Development, University of Lowell Building Authority, University of Massachusetts Building Authority, victim and witness board, and the Woods Hole, Martha's Vineyard, and Nantucket Steamship Authority.Id.
3 We refer to the federal law as the Federal Burma Law only for the convenience of the reader.
4 The NFTC brought suit against Charles D. Baker, then Secretary of Administration and Finance of the Commonwealth of Massachusetts, and Philmore anderson, III, the State Purchasing Agent for the Commonwealth of Massachusetts. Frederick Laskey subsequently replaced Baker as Secretary of Administration and Finance, and was Secretary at the time this appeal was taken. andrew S. Natsios is currently the Secretary.
5 Two other NFTC members also severed business with Burma, citing human rights concerns as the reason for their decisions.
6 The district court also found that the NFTC had standing to challenge the law. See National Foreign Trade Council, 26 F. Supp. 2d at 289-90. Massachusetts does not renew its challenge to the NFTC's standing on appeal. We have reviewed the district court's determination on the standing issue and we find that it was correct.
7 As the Supreme Court has indicated, The Federalist is “usually regarded as indicative of the original understanding of the Constitution.” Printz v. United States, 117 S. Ct. 2365, 2372 (1997).
8 As Professor Henkin comments:It may prove that Zschernig v. Miller excludes only state actions that reflect a state policy critical of foreign governments and involve “sitting in judgment” on them. Even if so limited, the doctrine might cast doubts on the right of the states to apply their own “public policy” in transnational situations. Or was the Court suggesting different lines — between state acts that impinge on foreign relations only “indirectly or incidentally” and those that do so directly or purposefully? Between those that “intrude” on the conduct of foreign relations and those that merely “affect” them? Henkin, supra, at 164 (footnotes omitted).
9 Massachusetts similarly argues that the district court erred in looking to State Department comments regarding the Massachusetts law. As Massachusetts contends, the Supreme Court has at times discounted federal Executive Branch positions. See Zschernig, 389 U.S. at 434-35; see also Container Corp. of Am, v. Franchise TaxBd., 463 U.S. 159,195-96 (1983) (stating that an Executive Branch decision not to file an amicus brief opposed to the state tax in question was “by no means dispositive,” but that “when combined with all the other considerations we have discussed, it does suggest that the foreign policy of the United States … is not seriously threatened” by the state law in question). Indeed, in Barclays, the Supreme Court expressly considered the force of “Executive Branch actions — press releases, letters, and amicus briefs,” stating that “Executive Branch communications that express federal policy but lack the force of law cannot render unconstitutional California's otherwise valid, congressionally condoned, use of worldwide combined reporting.” Barclays, 512 U.S. at 329-30. Massachusetts is correct that Executive Branch views are not dispositive. In this case, however, this court's own inquiry leads to the conclusion that the law impermissibly interferes with the federal government's foreign affairs power. While there have been conflicting Executive Branch statements regarding the effect of the Massachusetts Burma Law and similar laws, the Executive Branch has not taken an official position in this litigation.
10 The NFTC asserts that this argument was not raised below, and that there is nothing in the Agreements Act suggesting that it forecloses constitutional remedies. The NFTC misinterprets Massachusetts's argument, which is that the court should not look to foreign government views of the state law (not that constitutional challenges are per se barred).
11 Massachusetts may well have tried to insulate itself from attack under Zschernig by creating a mechanism that scrutinizes companies doing business in Burma rather than the Burmese government itself, but such scrutiny is similarly intrusive.
12 Massachusetts also contends that Barclays demonstrates that Congress has, via inaction, explicitly permitted the Massachusetts Burma Law. We return to this argument below.
13 One commentator, for example, contends that Barclays stands for the proposition that courts should not weigh the effects of a state law on foreign relations, that Barclays undercuts claims that Massachusetts is interfering with the federal government's ability to speak with one voice, and that Barclays indicates that the Court will presume congressional tolerance of laws that touch on foreign affairs issues, in particular if foreign governments object to the state law in question. See Goldsmith, Jack L., Federal Courts, Foreign Affairs, and Federalism, 83 Va. L. Rev. 1617, 1700–01 (1997).CrossRefGoogle ScholarProfessor Koh contests Professor Goldsmith's interpretation, arguing that it would be a mistake to read too much into the Court's statements in Barclays. Koh notes that the Solicitor General backed California's argument that there was no conflict between the state's tax laws and federal policy. “Thus, the case reveals less about the Supreme Court's view of federalism than about the Court's traditional judicial deference to the executive branch in foreign affairs.” Harold Hongju Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 1824, 1848 (1998).
14 Other academic commentary has also questioned Zschernig. We describe the commentary but also note that an alternative view is also quite rational: that in an increasingly interdependent and multilateral world, Zschernig's affirmation of the foreign affairs power of the national government may be all the more significant. Professor Henkin notes that Zschernig marked a significant break from prior Supreme Court jurisprudence. When the Supreme Court imposed limits on state regulation or taxation of foreign commerce prior to Zschernig, such limits “were found to be implied in the Commerce Clause.” Henkin, supra, at 162. Zschernig, in contrast, used the dormant foreign affairs power of the federal government. Thus, prior to Zschernig, “[t]he Court never asked whether such state actions might run afoul also of some larger principle limiting the states in matters that relate to foreign affairs.” Id. Hence Zschernig “was new constitutional doctrine,” because “there was no relevant exercise of federal power and no basis for deriving any prohibition for the states by ‘interpretation’ of the silence of Congress and the President. The Court told us that the Constitution itself excludes such state intrusions even when the federal branches have not acted.” Id. at 163-64 (footnote omitted).Professor Goldsmith makes a related argument in commenting on Zschernig and Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). In Sabbatino, the Court found that the act of state doctrine precluded a challenge to an expropriation decree of the Cuban government. See id. at 428. Goldsmith contends that both Sabbatino and Zschernig marked significant breaks in the Supreme Court's development of the common law of foreign relations. Although the Court had repeatedly found federal exclusivity in foreign relations prior to Sabbatino, it had generally done so “by virtue of either (a) the political branches’ occupation of the field through treaty and statute, or (b) independent constitutional prohibitions.” Goldsmith, supra, at 1649-50. Enforcement of federal exclusivity in foreign relations via “a judicially enforced dormant preemption” was a new development. See id. at 1649.
15 We consider below the impact of Barclays on the NFTC's Commerce Clause and Supremacy Clause challenges.
16 Massachusetts claims that the court in Trojan Technologies, Inc. v. Pennsylvania, 742 F. Supp. 900 (M.D. Pa. 1990), affd, 916 F.2d 903 (3d Cir. 1990), applied a market participant exception to the foreign affairs power. See id. at 903. There, the district court applied a market participant exception to the Foreign Commerce Clause. See id. at 902-03. In discussing the foreign affairs power, the court found that “the only impact of the Act on other countries is incidental — i.e., a possible decrease in the total sales of foreign steel in Pennsylvania because public agencies will not buy it.” Id. at 903. The court traced “[t]his result… to participation in the market place and not to any effort to control or regulate commerce with foreign countries.” Id.The Trojan Technologies opinion does not clarify which of three factors — incidental impact, participation in the marketplace, or lack of effort to control commerce with foreign countries — persuaded the district court to uphold the Pennsylvania law. In affirming, the Third Circuit avoided the subject entirely, grounding its discussion of the foreign affairs power on examination of, and interference with, the internal workings of foreign nations. See Trojan Techs., 916 F.2d at 913-14. At best, the district court decision in Trojan Technologies provides Massachusetts with a highly ambiguous holding that was not revisited on appellate review. To the extent that this case supports a market participant exception to the foreign affairs power, however, we disagree.
17 Massachusetts has waived its argument under Printz and New York v. United States, 505 U.S. 144 (1992). Massachusetts raises this argument only in a brief footnote. We have repeatedly held that arguments raised only in a footnote or in a perfunctory manner are waived. See, e.g., Grella v. Salem Five CentSav. Bank, 42 F.3d 26, 36 (1st Cir. 1994) (argument raised by way of “cursory footnote“ deemed waived); Rumford Pharmacy, Inc. v. City of East Providence, 970 F.2d 996, 1000 n.9 (1 st Cir. 1992) (“As appellant presents its contention in a cursory and conclusory footnote reference it merits no independent discussion.” (citations omitted)); Barrett v. United States, 965 F.2d 1184, 1194 n.19 (1st Cir. 1992) (“Since petitioner merely adverts to the claim in a perfunctory fashion in a footnote, and without developed argumentation, the claim is deemed waived.” (internal quotation marks omitted)).
18 We do not consider here whether Massachusetts would be authorized to pass a resolution condemning Burma's human rights record but taking no other action with regard to Burma.
19 Massachusetts contends that Camps Newfound/Owatonna actually supports Massachusetts's position. The Court in CampsNewfound/Owatonna distinguished between the Maine tax law at issue and laws that involve direct state purchases of goods. See Camps Newfound/Owatonna, 520 U.S. at 594. This reference, however, does not support the contention that all state purchasing decisions are protected by the market participant exception.
20 We further discuss the significant factual, procedural, and substantive differences between Barclays and this case below in our discussion of Massachusetts's claim that Congress has implicitly permitted the Massachusetts Burma Law.
21 Massachusetts points to Scariano v. Justices of the Supreme Court of Indiana, 38 F.3d 920 (7th Cir. 1994), to support its argument that where extraterritorial effects are not inevitable, there is no Foreign Commerce Clause violation. That case involved a challenge to Indiana's rules exempting out-of-state practitioners from Indiana's bar exam only if they had practiced predominately in Indiana for five years. The court found that this law had, at most, de minimis extraterritorial effects. See id. at 922, 927. That case thus has little relevance to the issues in this case.
22 Amici curiae Center for Constitutional Rights et al. cite to Perkins v. Lukens Steel Co., 310 U.S. 113 (1940), and Trap Rock Industries, Inc. v. Kohl, 284 A.2d 161 (N.J. 1971), to support their contention that a state's moral concerns can be a sufficient ground to justify laws such as the Massachusetts Burma Law. Yet neither case addressed a law that facially discriminated against interstate or foreign commerce. Perkins dismissed, for lack of standing, a challenge to the Secretary of Labor's determinations of wage localities under a statute requiring federal contractors to pay the prevailing local minimum wage. See Perkins, 310 U.S. at 116-17, 125-27. In Trap Rock, the New Jersey Supreme Court upheld the New Jersey Commissioner of Transportation's decision to bar firms, including a low bidder, from bidding on state contracts after the firms’ principals were indicted on bribery charges. See Trap Rock, 284 A.2d at 163-64. Citing Perkins and emphasizing the state government's broad discretion in purchasing decisions, the court found that the Commissioner had acted within his statutory discretion. Id. at 164, 168, 172. Like Perkins, however, Trap Rock bears no relation to this case. It is by now well understood that a state can, through its purchasing practices, pursue a variety of objectives, as long as its actions do not violate other laws or the Constitution. See, e.g., Foto USA, Inc. v. Board of Regents of the Univ. Sys. of Florida, 141 F.3d 1032, 1036-37 (11th Cir. 1998).
23 See, e.g., California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 330,334(1997) (prevailing-wage law); General Motors Corp. v. Tracy, 519 U.S. 278, 294 (1997) (regulation of local gas franchises); New York State Conference of Blue Cross ' Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 649-50, 655 (1995) (regulation of hospital billing); BFP v. Resolution Trust Corp., 511 U.S. 531, 544 (1994) (real property); Northwest Cent. Pipeline Corp. v. State Corp. Comm'n of Kansas, 489 U.S. 493, 510-12, 514 (1989) (natural resources); Rose v. Rose, 481 U.S. 619, 626, 628 (1987) (domestic relations); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 742-44 (1985) (insurance); Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977) (weights and measures on product packaging).
24 The fact that Barclays looked to congressional inaction only in order to inquire into whether the law impeded the federal government's ability to speak with one voice highlights the weakness in Massachusetts's additional claim that, given the Barclays presumption, this court should not even commence an inquiry into the validity of the Massachusetts law under the Commerce Clause. In Barclays, as “[i]n both Wardair and Container Corp., the Court considered the ‘one voice’ argument only after determining that the challenged state action was otherwise constitutional.” Barclays, 512 U.S. at 323.
25 Professor Tribe makes the same point: [I]f the field is one that is traditionally deemed “national,” the Court is more vigilant in striking down state incursions into subjects that Congress may have reserved to itself. It was not surprising, therefore, that the Court invalidated the state alien registration law in Hines v. Davidowitz; the Court was extremely solicitous of the paramount federal interest in matters germane to foreign affairs. Tribe, American Constitutional Law § 6-27, at 500 (footnote omitted).
26 Additionally, the De Canas Court considered only whether a state could punish employers for hiring employees who were in the country in violation of federal law. California was attempting to regulate different behavior than was regulated under the INA — the hiring of illegal aliens, rather than the illegal entry of aliens into the United States. As De Canas noted, “[t]he central concern of the INA [was] with the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country,” not with barring employment of illegal aliens. De Canas, 424 U.S. at 359. Unlike in Hines, where Congress had acted “in the specific field which the States were attempting to regulate,” id. at 362, in De Canas there was “no indication that Congress intended [the INA] to preclude state law in the area of employment regulation,” id. The Massachusetts Burma Law, in contrast, clearly lies in the same field and governs the same conduct — investment in and trade with Burma — as the federal sanctions against Burma. Massachusetts also argues that Itel Containers International Corp. v. Huddleston, 507 U.S. 60 (1993), distinguishes this case from Hines. The petitioner in Itel leased cargo containers that were solely used in international shipping. Tennessee assessed sales tax on containers that Itel delivered to lessees within the state's borders, /tel based its “primary challenge” to the law on the international Container Conventions, which prohibit taxation of cargo containers used in international trade provided such containers spend no more than three months in the country. Id. at 64-65. Itel argued that the Conventions barred taxation of leases involving these containers. Itel Containers does not support Massachusetts's argument. In Itel, as in De Canas, the challenged state law fell outside the scope of the federal regulatory scheme. The Conventions were adopted to ensure the free flow of containers, and encouraged more efficient containerization in lieu of other, less efficient transportation techniques. Because the tax did not impede importation of containers into Tennessee, the tax was not barred by the conventions. See id. at 66. Moreover, there was no evidence that Congress intended to displace generally applicable state tax schemes. See id. at 70.
27 Massachusetts argues that the only court to have confronted a similar question, the Maryland court in Board of Trustees, found that federal sanctions against South Africa did not preempt local divestment ordinances. The Maryland case is weak precedent here, however, as the Maryland court did not consider Hines in its discussion of preemption. See Board of Trustees, 562 A.2d at 740-44.
28 We acknowledge with appreciation the able advocacy by counsel for the parties as well as the assistance provided by the fourteen briefs representing more than 100 amici curiae.