Hypocritical California officials demand boycotts of Arizona over its immigration law

"Representatives at three levels of California government were quick to call for economic measures against neighboring Arizona this week in the wake of its passage of a tough new immigration law. . .On Tuesday, seven members of the Los Angles City Council signed a proposal for a boycott that urged the city to ‘refrain from conducting business’ or participating in conventions in Arizona. Also on Tuesday, San Francisco Mayor Gavin Newsom imposed an immediate moratorium on city employees traveling to Arizona.  And California Senate leader Darrell Steinberg said the state should consider a boycott of Arizona. He sent a letter to Gov. Arnold Schwarzenegger, asking which Arizona businesses and government agencies California does business with.”

California officials are being hypocritical to attack Arizona, given that Arizona’s new immigration measure is actually far less sweeping than one California adopted in 1994, which was invalidated by the federal courts.  (That California law, Proposition 187, would have barred illegal-immigrant children from the schools — something Arizona has not done.)  Even liberal law professors like Jack Balkin who vehemently dislike the Arizona law admit that it may be constitutional, and that it “was deliberately written” to comply with the standards laid down by the Supreme Court’s 1976 De Canas v. Bica decision, which upheld a state’s ban on hiring illegal aliens.  Arizona’s law was drafted by a noted legal scholar and former Bush administration official, and while it contains some unwise provisions, that does not make it illegal.

These boycott calls by California officials are unprincipled and have nothing to do with human rights or civil liberties.  Mexico has far more onerous immigration restrictions than Arizona does, including harsh prison sentences for illegal immigrants (most of them fleeing the much poorer countries to the south of Mexico, which make Mexico look rich by comparison), and bans on political activity by legal and illegal aliens alike.  But California officials don’t care about those immigration restrictions, and have no problem conducting business with Mexico or visiting it. They reserve their vitriol and boycotts for fellow Americans -- like the Arizona businesses they seek to punish merely for being in a state that has cracked down on illegal immigration.

Moreover, for California to impose sanctions against residents of a sister state like Arizona violates the Constitution, including the Dormant Commerce Clause and the Article IV Privileges and Immunities Clause.  As Justice Cardozo observed in Baldwin v. G.A.F. Seelig, Inc. (1935), “the Constitution . . . was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” 

In cases like United Building and Construction Trades Council v. Mayor of Camden (1984), the Supreme Court has said that the Privileges and Immunities clause of Article IV of the Constitution generally forbids states from discriminating against the residents of other states in things like employment on public works.  (Aliens, by contrast, are not entitled to the protections of this provision.)

The dormant-commerce clause limits state discrimination against businesses and commerce from other states (see, e.g., Baldwin v. G.A.F. Seelig, Inc. (1935)),  and although there is a limited exception to that rule for government contracts, that exception does not allow state or local governments to use contract provisions to pursue essentially regulatory measures aimed at other states (like attempts to meddle inside another state), as opposed to merely promoting a state’s own economic development (see Wisconsin v. Gould (1986) and  South Central Timber Development, Inc. v.  Wunnicke (1984)).

For example, in Wisconsin v. Gould, 475 U.S. 282, 289 (1986), the Supreme Court held that Wisconsin could not exclude a Delaware corporation from the State of Wisconsin's own contracts, even when it was motivated by the corporation's violations of the National Labor Relations Act.  The Supreme Court observed that while state proprietary functions are usually not subject to the restrictions placed on state regulatory power by the Commerce Clause, Wisconsin was not functioning purely as a private purchaser when it prohibited labor law violators from getting state contracts; instead, its contractual prohibitions were an indirect means of regulation forbidden by the Commerce Clause.

The Equal Protection Clause also sometimes forbids states to discriminate against residents of other states.  (See Metropolitan Life Insurance Company v. Ward (1985)).