REMEMBER WHEN the Seattle City Council nearly got up the nerve to pass a mild, mostly symbolic Burma sanctions bill, then shied away in a bitter vote? That May 1998 fiasco dented the credibility of then-Council President Jan Drago, who first introduced the measure and then opposed it after (as she explained) learning something about it. It also revealed the emerging clout of the Washington Council on International Trade and its president, Port Commissioner Pat Davis, who persuaded Drago to back off and went on to bring the World Trade Organization to Seattle. Davis argued that, among other ill effects, such a selective purchasing bill would violate WTO procurement rules that the United States had already signed, and noted that Massachusetts' and Berkeley's Burma boycott bills were already being challenged.
Twenty months later, the game continues. The WCIT's national counterpart, the National Foreign Trade Council, has sued to overturn Massachusetts' Burma bill—and lost in both trial and appeals courts. Now it's appealed to the US Supreme Court, in a case that will help determine the rights of state and local governments in the new trade order. And lo and behold, the state of Washington has decided to enter into that case on Massachusetts' behalf, arguing that entities like it—or, by extension, Seattle—do indeed have the right to decide with whom they'll do business.
Drafted by North Dakota's attorney general, the amicus brief that Washington's Christine Gregoire will sign doesn't go into the wherefores of Burma sanctions. In fact, it doesn't mention Burma at all. Rather, it defends the right of states to decide how they want to spend or invest their money; that might mean favoring local suppliers or disfavoring companies that do business with (before) South Africa, Namibia, or Northern Ireland and (lately) Burma. Opponents such as the Trade Council claim that this violates both the federal authority over interstate commerce and WTO rules that the US government has agreed to. Not so, the states insist (and the courts have so far concurred): They would only violate the Constitution's Commerce Clause if they tried to regulate trade. They enjoy a "market exemption" when they do business on their own behalf, when they are in effect private parties. And just like Joe's Grocery or Microsoft, they can set their own standards.
If Massachusetts prevails again, the case may also set a barrier against private parties suing to overturn local laws they believe violate international trade agreements. Deciding such issues isn't the business of the courts, the states argue; that's what the WTO was set up for.
Would that embolden Seattle, which seems to get burned by the footlights each time it steps onto the world stage, to once again act like "a city with a foreign policy"? By then Burma may have reverted to democracy anyway.