1 See Mass. Gen. Law Ann. ch. 7 §22G–J (West Supp. 1998).

2 National Foreign Trade Council v. Natsios, 181 F.3d 38 (1st Cir. 1999); National Foreign Trade Council v. Baker, 26 F. Supp.2d 287 (D. Mass. 1998). See generally Brannon P., Denning & Jack H., McCall, The Constitutionality of State “Sanctions” Against Foreign Countries: Affairs of State, States’ Affairs, or a Sorry State of Affairs? 26 Hastings Const. L.Q. 307 (1999)Google Scholar [hereinafter Affairs of State]; Brannon P., Denning & Jack H., McCall, States’Rights and Foreign Policy, 79 Foreign Aff. 9 (Jan./Feb. 2000)Google Scholar [hereinafter States’ Rights and Foreign Policy]. Like its interstate counterpart, the Foreign Commerce Clause, see U.S. Const. Art. I, §8, cl. 3, has long been interpreted to contain self-executing limitations that restrain a state’s ability to pass laws touching foreign commerce, even in the absence of congressional action. We term these limitations the “dormant” Foreign Commerce Clause doctrine. See generally Boris I., Bittker, Bittker on the Regulation of Interstate and Foreign Commerce §10.03 (1999)Google Scholar. The “dormant” foreign affairs power was announced in the case of Zschemig v. Miller, 389 U.S. 429 (1968), in which the U.S. Supreme Court struck down state restrictions on the ability of alien citizens of certain countries to take under state intestacy laws. The Court held that such laws interfered with federal prerogatives to conduct foreign policy. Id. at 433–41.

3 Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997, §570, 110 Stat. 3009–166 to 3009–167; see also Exec. Order No. 13, 047, reprinted in 50 U.S.C.A. §1701 app. at 219–21 (West Supp. 2000).

4 Crosby v. National Foreign Trade Council, 120 S.Ct. 2288, 2291; see also id. at 2294 n.8 (“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 . . . or to pass on the First Circuit’s rulings addressing the foreign affairs power or the dormant Foreign Commerce Clause.”).

5 For an overview of recent forms of state and local sanctions, see Affairs of State, supra note 2, at 311–16, 327–34. For various commentaries on earlier forms of sanctions, see, e.g., Kevin P., Lewis, Dealing with South Africa: The Constitutionality of State and Local Divestment Legislation, 61 Tul. L. Rev. 469 (1987)Google Scholar; John, Norton Moore, Federalism and Foreign Relations, 1965 Duke L. J. 248, 297–319 Google Scholar; see also Grace A., Jubinsky, Note, State and Municipal Governments React Against South African Apartheid: An Assessment of the Constitutionality of the Divestment Campaign, 54 U. Cin. L. Rev. 543 (1985)Google Scholar; Lori A., Martin, Comment, The Legality of Nuclear Free Zones, 55 U. Chi. L. Rev 965 (1988)Google Scholar; Peter J., Spiro, Note, State and Local Anti-South Africa Action as an Intrusion upon the Federal Power in Foreign Affairs, 72 Va. L. Rev. 813 (1986)Google Scholar.

6 Crosby, 120 S.Ct. at 2291; see also Affairs of State, supra note 2, at 312–14.

7 Crasty, 120S.Ct.at2291.

8 Id. at 2292.

9 Id.

10 Id. The president was further directed to develop a plan to bring democracy to Burma by cooperating with other countries in the Southeast Asia region. Id.

11 See generally Bittker, supra note 2, at §5.06.

12 Crooby 120 S.Ct. at 2294.

13 Id. at 2293–94 (footnotes omitted).

14 Id. at 2295.

15 Id.; see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) (“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.”).

16 Crosby, 120 S.Ct. at 2295–96.

17 Id. at 2296 (footnote omitted).

18 Id. Justice Souter also noted that Massachusetts’s sanctions are “immediate . . . and perpetual,” as opposed to the flexibility inherent in the federal act’s delegation of authority to the president. As a consequence, “if the Massachusetts law is enforceable the President has less to offer and less economic and diplomatic leverage as a consequence.” Id.

19 Id. at 2297.

20 Id.; see supra text accompanying notes 5–7.

21 Crosby, 120 S.Ct. at 2297–98; see supra text accompanying notes 5–7.

22 See Crosby, 120 S.Ct. at 2299–300; see also Affairs of State, supra note 2, at 369.

23 Crosby, 120 S.Ct. at 2300; see also Testimony of Deputy Assistant Secretary [of State for Transportation Affairs] David Marchick Before the Maryland House of Delegates Committee on Commerce and Government Matters (Mar. 25, 1998), <http://www.usaengage.org/legislative/marchick.html> [hereinafter Marchick Testimony] (on file with authors).

24 Crosby, 120 S. Ct. at 2300. For example, the Court cited testimony from the State Department that “the imposition of unilateral sanctions ‘complicates efforts to build coalitions with our allies’ to promote democracy and human rights in Burma,” as mandated by Congress. Id. See also Marchick Testimony, supra note 23. As part of its effort to contain the impact of the Massachusetts statute, the Department of State began vigorously to oppose the similar statutes and ordinances that were pending in other states and municipalities. See, e.g., id.; Daniel M., Price & John P., Hannah, The Constitutionality of United States State and Local Sanctions, 39 Harv. Int’l L.J. 443, 445 nn.7–10, 453 nn.126–28 (1998)Google Scholar.

25 The expressio unius canon construes a list of items included in a statute to exclude by implication all items not listed. See generally William N., Eskridge Jr., Philip P., Frickey, & Garrett, Elizabeth, Legislation and Statutory Interpretation 255–56 (2000)Google Scholar. Here, Massachusetts was claiming that in failing to preempt state or local sanctions, Congress implicitly countenanced them.

26 Crosby, 120 S.Ct. at 2301–02.

27 Id. at 2302. Justice Souter also made a point of noting that the Court had never passed on the validity of state and local anti-apartheid sanctions against South Africa. See id.; see also Greenhouse, Linda, The Supreme Court: The Foreign Policy Issue, N.Y. Times, June 20, 2000, at A23 Google Scholar (citing Professor Peter Spiro as stating that many of the antiapartheid enactments “would have had a tough time surviving” after the Crosby decision).

28 See generally Rangoon Thanks You, Int’l Herald Trib., June 26, 2000, at 8 (describing the Supreme Court’s opinion in Crosby as being “mercifully narrow”); Phillips, Frank, Mass. Law on Burma Struck Down, Boston Globe, June 20, 2000, at A1 Google Scholar; David G., Savage, Justices Ban Many City, State Boycotts, L.A. Times June 20, 2000, at A3 Google Scholar; Walsh, Edward, Justices Limit States on Sanctions; Court Rejects Mass. Law on Firms Doing Business in Burma, Wash. Post, June 20, 2000, at A10 Google Scholar; Supreme Court Ruling Striking Down a Massachusetts Law Restricting Purchases from Companies that Do Business with Myanmar, All Things Considered (NPR radio broadcast, June 19, 2000), available in LEXIS, News Library, Curnws File [hereinafter All Things Considered]

The Court’s use of preemption as the sole basis for its decision in Crosby frankly exceeded the expectations (and earlier prognostications) of the authors, among others. See generally Affairs of State, supra note 2, at 322 n.81; Schmahmann, David & Finch, James, The Unconstitutionality of State and Local Enactments in the United States Restricting Business Ties with Burma (Myanmar), 30 Vand. J. Transnat’l L. 175, 184 (1997)Google Scholar.

The Crosby decision has also drawn fire from some commentators who found it hypocritical, or at least inconsistent, that a Supreme Court with such a pronounced interest in policing the lines of demarcation of federalism would here find a congressional intent to preempt, even in the absence of an explicit statement to that effect in the federal statute. See, e.g., Lithwick, Dahlia, Supreme Court Dispatches: Supreme Court Hissy Fits, Slate (June 28, 2000), obtainable from <http://www.Slate.msn.com/dispatches/99-11-09/dispatches.asp>Google Scholar (comparing the decisions in Crosby and Morrison, and commenting that “all the cinnamon-scented rhetoric about federalism and state autonomy [in Morrison] evaporated pretty quickly when the autonomous citizens of Massachusetts tried to set their own foreign policy toward Burma. . . . The states morph from autonomous agents of democracy to backward boneheads pretty readily [in the Court’s opinions].”). Court critics have also pointed to the differences between the outcomes in Crosby and United States v. Locke, 120 S.Ct. 1135 (2000) (holding that federal statute preempts certain state regulations of oil tankers operating in state territorial waters) and those in United States v. Morrison, 120 S.Ct. 1740 (2000) (holding the federal Violence Against Women Act of 1994, 42 U.S.C. §13981, to be unconstitutional in that Congress exceeded its constitutional authority in enacting such legislation over “noneconomic, violent criminal conduct” on Commerce Clause and Fourteenth Amendment grounds) and Kimelv. Florida Board of Regents, 120 S.Ct. 631 (2000) (holding that federal Age Discrimination in Employment Act contains a sufficiently clear statement of congressional intent to abrogate the states’ immunity from suit under the Eleventh Amendment but, nevertheless, that such abrogation exceeded Congress’s authority under Section 5 of the Fourteenth Amendment). See Walsh, supra (noting that the “Rehnquist court generally has enhanced state sovereignty” but declined to do so in Crosby); see also Alden v. Maine, 527 U.S. 706 (1999) (holding that Congress lacked power, under Article I, to subject nonconsenting states to private suits for damages in the states’ own courts); College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) (rejecting federal court jurisdiction against a Florida state agency on grounds that the state’s sovereign immunity was neither abrogated by the federal Trademark Remedy Clarification Act, 106 Stat. 3567, nor waived by Florida’s activities in interstate commerce).

The holdings are not, in fact, inconsistent at all; rather, they are a reminder that, under the Constitution, state and federal governments have their respective spheres of influence—in Madison’s phrase, that the government established by the Constitution is “neither wholly national nor wholly federal.” The Federalist No. 39, at 246 (James Madison) (Clinton Rossiter ed., 1961). Just as Congress is not permitted to exceed its constitutionally enumerated powers and encroach upon areas left to the states, the states are not competent to encroach upon those areas in which Congress has acted, even if in doing so the states ostensibly seek only to “supplement” federal action. See, e.g., Hines, 312 U.S. at 52 (striking down a Pennsylvania alien-registration statute that purportedly “complemented” federal enactments on foreign affairs grounds).

29 Nor are the domestic proponents and opponents of subnational sanctions the only ones to claim victory after Crosby was decided: the SLORC regime itself issued a self-serving statement, congratulating the Supreme Court on “[making] the right decision.” US Activists to Continue Fight Against funta, Nation (Thailand), June 21, 2000, available in LEXIS, News Library, Curnws File.

30 See Goldberg, Carey, After Defeat, Campaign for “Free Burma” Begins Anew, N.Y. Times, June 24, 2000, at A6 Google Scholar (“The Supreme Court’s ruling against the Massachusetts law... was narrow enough that it left room for states and cities to pass such homegrown foreign policy measures . . . [p]rovided . .. they are not pre-empted by federal law .. ..”). In fact, “[w]ithin hours of the Supreme Court’s decision, local advocates announced they would seek new [anti-Burma] legislation.” Savage, supra note 28, at A3; see also US Activists to Continue Fight Against Junta, supra note 29; Interview with Thomas Barnico, assistant attorney general, Mass., Morning Edition (NPR radio broadcast, June 20, 2000), available in LEXIS, News Library, Curnws File [hereinafter Barnico interview].

31 See, e.g., David G., Savage, Burma Ban Barred, A.B.A. J., Aug. 2000, at 33 Google Scholar (noting that activists were disappointed with the Crosby decision but recognized that “states are still free to divest themselves of stock in companies that trade with Burma,” in line with anti-apartheid divestment tactics of the 1980s); Margaret, Graham Tebo, Power Back to the People, A.B.A. J., July 2000, at 52–56 Google Scholar (discussing the WTO and IMF protests and summarizing the competing positions); Affairs of State, supra note 2, at 329 (reviewing several alternatives to sanctions as a means of expressing state or local concerns towards repressive regimes); All Things Considered, supra note 28, LEXIS at 2 (citing one activist, the Massachusetts statute’s coauthor, Simon Billenness: “While we suffered a setback today, it certainly isn’t the end of the fight”); Barnico interview, supra note 30, LEXIS at 2 (noting several alternatives to sanctions that remain open to subnational governments); Greenhouse, supra note 27 (discussing divestment of pension funds as an available alternative to state and local foreign-policy sanctions).

In fact, the district court’s November 1998 decision in Crosby notwithstanding, three additional bills were introduced in the Massachusetts legislature in early 1999 to impose further sanctions against Burma. In the New York state legislature, a selective-purchasing bill against Burma, similar in scope to the Massachusetts anti-Burma statute, was also introduced in 1999. Organization for International Investment, State and Municipal Sanctions Report— Pending Measures, July 20, 2000 (on file with authors).

Even human rights activists are sometimes divided, however, over the propriety of enacting certain types of sanctions. In Miami, for example, the city and county chose to withhold access to public facilities from Cuban cultural groups, even though such access fell under an exception to the federal sanctions regime. The authors thank Bernard Oxman for this observation. Incidentally, Miami-Dade County was recently enjoined from enforcing its ordinance in light of the Crosby decision. See Miami Light Project v. Miami-Dade County, 97 F.Supp.2d 1174 (S.D. Fla. 2000); see also infra text accompanying note 44.

32 120 S.Ct. 1135 (2000); see Patrick O., Gudridge, Case Report: Locke v. United States, 94 AJIL 745 (2000)Google Scholar.

33 104 Stat. 2375, codified at 33 U.S.C. §§2701–2761 (1994 ed. & Supp. III).

34 See Locke, 120 S.Ct. at 1141.

35 See id. at 1143–44, 1148, 1152.

36 Id. at 1147–48.

37 Crosby, 120 S.Ct. at 2294 n.8.

38 Id.

39 See, e.g., Gade v. Nat’l Solid Wastes Management Ass’n, 505 U.S. 88, 111 (1992) (Kennedy, J., concurring) and Ray v. Atlantic Richfield Co., 435 U.S. 151, 157 (1978), both of which quote Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947): “[W]e start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”

40 Cf Pacific Gas & Electric Co. v. State Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190 (1983) (despite existence of the federal Atomic Energy Act, held that California’s moratorium on construction of new nuclear plants was not unmistakably preempted by the federal statutory regime); Ray v. Atlantic Richfield Co., 435 U.S. at 151 (despite enactment of federal ports and waterways legislation, held that similar Washington state laws not to be explicitly preempted by Congress); 1 Laurence H., Tribe, American Constitutional Law §6–29, at 1186 (3d ed. 2000)Google Scholar (generally discussing limits on Supreme Court’s application of preemption and summarizing Ray v. Atlantic Richfield as teaching that “state pressure to act in derogation of a federal statutory scheme is not to be inferred lightly”); Ronald D., Rotunda, Sheathing the Sword of Federal Preemption, 5 const. Commentary 311, 317 (1988)Google Scholar (discussing the Supreme Court’s “extreme reluctance” to utilize preemption against state laws); see also Barclays Bank PLC v. Franchise Tax Bd., 512 U.S. 298, 324–31 (1994) (analyzing the absence of express congressional action in the context of taxation of multinational business entities, to rebuff assertion that federal laws preempted a state tax-allocation methodology).

41 512 U.S. 298 (1994). For a critical analysis, see, e.g., Jack L., Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 Va. L. Rev. 1617, 1698–705 (1997)Google Scholar (arguing that Barclays Bank, among other recent decisions, “mark[ed] a retreat from doctrines that require courts to make foreign relations judgments”).

42 See, e.g., Pennsylvania v. Nelson, 350 U.S. 497, 504–510 (1956) (striking down state sedition act as inconsistent with similar federal act); Hines v. Davidowitz, 312 U.S. 52, 68–74 (1941) (striking down similar Pennsylvania act for similar reasons).

43 There is another possible explanation: the Court was applying a form of so-called Chevron deference to the executive branch’s assertions that sanctions like those of Massachusetts hindered its ability to conduct foreign affairs. See Chevron U.S.A. v. Natural Res. Defense Council, 467 U.S. 837 (1984) (holding that courts should defer to reasonable agency interpretations of an ambiguous statute); Curtis A., Bradley, Chevron Deference and Foreign Affairs, 86 Va. L. Rev. 649 (2000)Google Scholar. Certainly, Justice Souter remarked upon the statute’s “flexible” delegation of power to the president in order to achieve congressional goals expressed in the statute, Crosby, 120 S.Ct. at 2295–96, and seemed to grant some weight to executive branch opinion regarding the obstacles that the state sanctions posed. See id. at 2299. Bradley cautions, however, that the Chevron deference should not be invoked, without more, to support judicial deference to executive-branch representations in cases involving either the act of state doctrine or the dormant foreign affairs doctrine of Zschernig. See Bradley, supra, at 715–25. “Deference,” he writes, “can no longer be justified by the executive branch’s authority or expertise concerning international law, the executive branch’s independent lawmaking powers, or even . . . the executive branch’s superior ability to assess international facts. . . . [T]his suggests that deference . . . depends on the source and nature of the law in question.” Id. at 720–21. Crosby seems to support Bradley’s view insofar as the Court emphasized that the president was acting on express authority from Congress. 120 S.Ct. at 2291, 2295–96, 2298–99, 2300.

44 See, e.g., Miami Light Project v. Miami-Dade County, 97 F.Supp.2d 1174, 1180 (S.D. Fla. 2000) (granting preliminary injunction against Miami-Dade County ordinance requiring contractors to swear an affidavit that they do not transact business with Cuba, inter alia, on grounds that the ordinance was preempted by federal statutes).

45 See Zschernig v. Miller, 389 U.S. 429, 433–41 (1968) (striking down Oregon law restricting alien inheritance for presuming to pass on the “democracy quotient” of certain foreign regimes); Price & Hannah, supra note 24, at 457.

46 See, e.g., National Foreign Trade Council v. Natsios, 181 F.3d 38, 67–71 (1st Cir. 1999).

47 See infra notes 47–53 and accompanying text. In addition, there is the argument, advanced by Massachusetts (and rejected by the court) in Natsios, that the state’s anti-Burma legislation was, in effect, worthy of constitutional protection on the grounds that such activities advanced “First Amendment values,” regardless of the impact of Zschernig. 181 F.3d at 61; see Matthew C., Porterfield, State and Local Foreign Policy Initiatives and Free Speech: The First Amendment as an Instrument of Federalism, 35 Stan. J. Int’l L. 1 (1999)Google Scholar; Akhil, Reed Amar, A State’s Right, A Government’s Wrong, Wash. Post, March 19, 2000, at B1 Google Scholar.

48 389 U.S. 429 (1968).

49 See generally Natsios, 181 F.3d at 58–59 n.14; Goldsmith, supra note 41, at 1641–705 (challenging the viability and underlying tenets of Zschernig); Carvajal, Alejandra, Note, State and Local “Free Burma” Laws: The Case for Sub- National Trade Sanctions, 29 L. & Pol’y Int’l Bus. 257, 267–68, 269 (1998)Google Scholar (suggesting that Zschemigis effectively little more than a carryover based on Cold War concerns). But see Affairs of State, supra note 2, at 323 n.83, 336–38 (defending Zschernig).

50 See Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 316–17 (1851) (noting the Founders’ objections to any discrimination, whether favorable or adverse, relating to commerce with particular foreign nations that might be produced by a state’s laws); Natsios, 181 F.3d at 70–71; Goldsmith, supra note 41, at 1637, 1711 (discussing generally the constitutional perils of discrimination against foreign commerce).

51 The market-participant exception is a judge-made exception to the dormant Commerce Clause doctrine that allows state and local governments to engage in activities, otherwise prohibited by the Commerce Clause, when they are acting as ordinary participants in a commercial market, as opposed to acting in the usual state role as a market “regulator.” See generally Bittker, supra note 2, at §§7.01–7.07.

52 See South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 96 (1984); Reeves, Inc. v. Stake, 447 U.S. 429, 438 n.9 (1979); Natsios, 181 F.3d at 59–60; National Foreign Trade Council v. Baker, 26 F.Supp.2d 287, 293 (D. Mass. 1998); Affairs of State, supra note 2, at 361–63; see also Dan T., Coenen, Untangling the Market-Participant Exception to the Dormant Commerce Clause, 88 Mich. L. Rev. 395, 423 (1989)Google Scholar; Lewis, supra note 5, at 481; Peter J., Spiro, Note, State and Local Anti-South Africa Action as an Intrusion upon the Federal Power in Foreign Affairs, 72 Va. L. Rev. 813, 839 (1986)Google Scholar.

53 See New Energy Co. v. Limbach, 486 U.S. 269 (1988); see also Camps Newfound/Owatonna, Inc. v. Harris, 117 S.Ct. 1590, 1606–07 (1997); Reeves, 447 U.S. at 437 n.9; South-Central Timber, 467 U.S. at 100; Japan Line, Ltd., v. Los Angeles, 441 U.S. 434, 434 (1979); Affairs of State, supra note 2, at 363–64; Price & Hannah, supra note 24, at 499.

54 See, e.g., South-Central Timber, 467 U.S. at 97; Air Transport Ass’n of Am. v. San Francisco, 992 F.Supp. 1149, 1157–63 (N.D. Cal. 1998); Affairs of State, supra note 2, at 364–66.

55 The usual citation is to United States v. Curtiss-Wright Exporting Co., 299 U.S. 304 (1936), in which Justice Sutherland wrote that in the “vast, external realm” of foreign affairs, “the President alone” is the country’s representative on the world stage and is “the sole organ of the federal government in the field of foreign relations.” Id. at 319, 320. For a historical analysis of how this presidential power emerged, see Edward White, G., The Transformation of the Constitutional Regime of Foreign Relations, 85 Va. L. Rev. 1 (1999)Google Scholar.

56 See supra notes 14–21 and accompanying text.

57 Similarly, at least until Crosby, the Court frequently refrained from basing its decisions on executive branch pronouncements or on general statements in an area if such assertions could not be regarded as constituting a “clear federal directive” on the topic. Compare Barclays Bank PLC v. Franchise Tax Bd., 512 U. S. 298, 329–30 (1994) (reasoning that presidential actions, including press releases, letters, amicus briefs, and similar pronouncements, “are merely precatory”) with Crosby v. National Foreign Trade Council, 120 S.Ct. 2288, 2299 (2000) (seemingly conferring authoritative weight to similar executive branch representations and activities). Of course, the president did not take unilateral action to stop the state sanctions in Crosby and was acting pursuant to statute. Justice Souter explained the difference between Barclays Bank, on the one hand, and Crosby, on the other, in terms of Congress’s rejection, in the former case, of the position pressed by the appellants before the Supreme Court. See Crosby, 120 S.Ct. at 2300. Justice Souter wrote that “[w]e found the reactions of foreign powers and the expressions of the Executive irrelevant [in Barclays Bank] in fathoming congressional intent because Congress had taken specific actions rejecting the positions both of foreign governments . . . and the Executive. Here, however, Congress has done nothing to render such evidence beside the point.” Id. The executive branch representations and foreign protests, he continued, “are more than sufficient to demonstrate that the Act stands in the way of Congress’s diplomatic objectives.” Id. (footnote omitted).

58 See, e.g., Affairs of State, supra note 2, at 320–24 (analyzing Zschernig).

59 See, e.g., Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682 (1976); First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 416 (1964) (each analyzing the act of state doctrine, which posits that “the courts of one nation will not sit in judgment on the acts of another nation within [the latter’s] own territory”) (citation omitted).

60 See Michael S., Lelyveld, US May Defend, Oppose State’s Sanctions Law, J. Com., Feb. 3, 1999, at 3A Google Scholar; Michael S., Lelyveld, 15 Lawmakers Back Massachusetts Appeal, J. Com., Feb. 5, 1999 Google Scholar, available in 1999 WL 637155 (discussing the Clinton administration’s apparent prior ambivalence over the Crosby case and its activities to oppose the reversal of that case at the First Circuit level while simultaneously representing Massachusetts in the WTO proceedings). It may be noted that the United States did not intervene in Locke until the case reached the court of appeals. See Gudridge, supra note 32.

61 Of course, an important difference between the situation here and the earlier act of state cases is that after the Sabbatino case, Congress passed a law ordering courts not to apply the act of state doctrine in certain cases. See 22 U.S.C. §2370 (e)(2). Nevertheless, its application by courts has been described as “fairly grudging.” Jordan J., Paust, Joan M., Fitzpatrick, & Jon M., Van Dyke, International Law and Litigation in the U.S. 694–95 (2000)Google Scholar. Had Congress explicitly rejected calls to preempt statutes such as that of Massachusetts, as it had done with California’s tax policies in Barclays Bank, the outcome in Crosby—at least on the preemption issue—might have been different.

62 See supra text accompanying notes 28–31.