The Supreme Court agreed yesterday to decide whether states can refuse to buy goods from companies that do business in countries with poor human rights records. The case, which could have significant economic and humanitarian ramifications, involves a Massachusetts law that restricts state purchases from companies that deal with Burma, called Myanmar by its military rulers.
In a day of varied court business, the justices also agreed to decide whether a judge can boost the sentence of a defendant who acted out of racial prejudice, without a jury first finding that the defendant committed a so-called hate crime.
The Massachusetts Burma Law, passed in 1996, effectively screens out companies that do business with that country, by requiring state agencies to add 10 percent to any bids received from those companies. Earlier this year, the U.S. Court of Appeals for the 1st Circuit ruled that the law violated constitutional foreign commerce protections and was preempted by federal sanctions already in place against the Southeast Asian country.
Fourteen states, including Maryland, joined Massachusetts in its appeal, asserting that its law is similar to many state and local policies concerning Northern Ireland, Cuba, Nigeria and other countries. The states said the 1st Circuit decision undermines citizens' sovereign right to decide how to spend public money and to express their opposition to places they deem "detestable." Numerous humanitarian groups also urged the court to take the case.
The National Foreign Trade Council, which represents major corporations and challenged the Massachusetts law last year, emphasized in its filing that lower courts have generally ruled unconstitutional local efforts to engage in foreign policy and to impose sanctions as a way of influencing foreign governments. The council was supported by the U.S. Chamber of Commerce and numerous business groups that said states should not be able to effectively blacklist companies as a way to influence a foreign country's domestic policies.
In its appeal, Massachusetts referred to a long history of using boycotts and so-called selective purchasing laws to support people's rights around the world. State officials compared the action against Burma to a myriad of laws passed during the 1980s against South Africa, and asserted "nothing in our federal Constitution denies to the states the right to apply a moral standard to their spending decisions."
The dispute presents a new states' rights dilemma for a court that increasingly has ruled in favor of state sovereignty. But it offers the unique backdrop of the international economy and widespread concern for human rights abuses.
The case, Natsios v. National Foreign Trade Council, will be argued next spring.
The hate-crime case involves a New Jersey law that allows judges to determine by a "preponderance of the evidence," rather than "beyond a reasonable doubt" that an assailant was biased against his victims.
In 1994, Charles C. Apprendi Jr. was arrested in Vineland, N.J., for shooting into his neighbor's house and charged with unlawful possession of a weapon. A judge determined that he fired into the house because the residents were black. Rather than getting a simple firearms sentence of between five and 10 years, the judge sentenced Apprendi to 12 years, under the state law punishing actions intended to intimidate someone based on race.
The Supreme Court ruled in 1993 that states may impose greater prison sentences and stiffer fines on defendants who choose their victims based on race, religion or other biases, and the new case is not likely to disrupt that ruling. Rather, Apprendi v. New Jersey tests whether someone may qualify for an enhanced sentence based on a judge's ruling using the "preponderance of the evidence" standard rather than by jury verdict using proof "beyond a reasonable doubt."
Michael Lieberman, Washington counsel for the Anti-Defamation League, noted that of the 40 states that have laws allowing enhanced penalties for crimes motivated by prejudice, the vast majority already require that the crime's motivation be determined beyond a reasonable doubt.