Friday, May 14, 2010

Is Boycotting Arizona Unconstitutional?

Various cities have announced plans to boycott the state of Arizona, in one way or another, in order to protest its immigration policy. One question I have not seen discussed is whether such boycotts raise constitutional issues. In the U.S. system, cities and counties are, legally speaking, creations of the states that contain them. It would seem to follow that actions of, say, the city of San Francisco count as actions of the state of California. I am not a constitutional scholar, but it is my understanding that the Constitution does not permit states to impose tariffs or similar restrictions on trade with other states.

A quick glance through the document finds that:

"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

"No Tax or Duty shall be laid on Articles exported from any State."

"No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another."

I am not sure whether any of those, or something else I missed, has the implication I described, although the last one comes close if "ports" is broadly defined.

If I am correct, would a state whose officials promoted a boycott of another state be in violation?


Michael P said...

I just finished my first class in Constitutional Law at USC as a 1L. I'll take a stab at this one.

Yes, any state law boycotting goods from another state would be unconstitutional (under any of the provisions you cited, though the privileges and immunities clause is rarely invoked these days).

A politician who promoted such a boycott might be viewed as violating his or her sworn oath to protect the constitution, but it's unlikely.

First, the first amendment protects citizens who want to boycott goods from particular states, so a politician who promotes that behavior is not thereby failing to uphold the constitution.

Second, the concept of judicial review (not explicitly in the constitution but implied since Marbury) is consistent with politicians promoting and even enacting state laws that violate the constitution. Nothing about that process itself is unconstitutional; it's part of the system of government provided by the constitution.

Third, the constitution provides a process for amendment, so it would be odd if the same document prohibited promoting policies that differed from the status quo.

Anonymous said...

The Supreme Court recently ruled that the muni bond system, where states tax the bonds of other states, but not their own, is constitutional.

Anonymous said...

Market participant exception, perhaps?

David Friedman said...

Michael makes some good points. But I was thinking, not of a politician promoting a state law, but of a politician, as part of his paid employment by the state, using the powers of his office, promoting a boycott.

Anonymous said...

A: no.

Anonymous said...

I would think it would depend on each state's law. In Ohio, municipalities are corporations and not agents of the state. Private corporations are free to boycott so I see no reason that a city couldn't.

One could try to argue that if a municipality gets state's dollars, a boycott would be unconstitutional. But this could become a slippery slope because state's put pension funds in the private sector so private sector boycotts could then become unconstitutional.

Gary McGath said...

It depends a lot on the specific actions taken to promote a boycott. The Constitution prohibits duties on interstate imports or exports, which likely would be interpreted as meaning that any law or regulation that penalized or prohibited dealing with Arizona businesses would be unconstitutional.

Milhouse said...

A law requiring citizens of one state or city to boycott Arizona whether they liked it or not would certainly be unconstitutional. But nothing in the constitution requires a state or city to do business with all comers. A state or city has the same right as anybody else to do business with whomever it likes, and not to do so with whomever it doesn't.

maurile said...

The negative aspect of the Commerce Clause generally prohibits states from improperly burdening or discriminating against interstate commerce.

Anonymous said...

The boycotts are constitutional. They do not violate the interstate commerce clause as some folks have been claiming. A state cannot regulate against other states, or citizens or entities of other states, from doing business in that state. That is not the same thing as a state electing not to do business with another state. If states can contract with other states -- and they can -- I don't see why they can't choose not to do business with another state.

Same thing with the privileges and immunities clause. California is not doing anything to restrict citizens from other states from coming into California and enjoying the benefits of California. Rather, it -- or the City of L.A., actually -- is electing not to do business with Arizona. Not the same thing.

Anonymous said...

I see an odd parallel with the health care debate. Cities (which derive their power from states) are boycotting citizens of specific states, but according to the healthcare law individual citizens cannot choose to boycott health care companies, i.e. choose not to buy healthcare.

Which one of these situations do you think the Commerce Clause /Dormant Commerce Clause was originally meant to reach?