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California’s Arizona Boycott Stirs Murky Constitutional Waters

California's boycott backfireVia FOXNews.com:

“Dozens of California lawmakers are pushing to make their state the first in the nation to impose an across-the-board boycott on Arizona over its immigration law”

If these lawmakers succeed, they will enter into questionable legal ground.  The Constitution’s commerce clause was designed to prevent states from enacting protectionist policies that would impede commerce with, and competition from, other states.  In 1824, the Supreme Court overturned a New York law that granted a monopoly to a local steam boat operator, Aaron Ogden.  Ogden operated a ferry service between New York and New Jersey which faced direct competition from Thomas Gibbons.

Obviously, if the state of California were to ban, or unfairly tax, commerce from Arizona, they would be in violation of the Commerce Clause.  However, it is unclear whether private and public commerce are treated differently.  It’s one thing to bar state residents from purchasing services from Arizona, it’s another for California’s government to hold meetings in Montana instead of Arizona, or to contract with a company in New Mexico instead of an Arizona equivalent.  If the boycott is limited to state procurement policy, the application of the commerce clause is less concrete.

Some have pointed to the 1950 case, Dean Milk Co v. Madison.  However, this case also deals with local regulation of private commerce.  Dean Milk was denied permits to sell its products in Madison because the milk was not pasteurized within 5 miles of the city as the ordinance required.  The court ruled that the “regulation [was] not essential for the protection of local health interests” and as such placed a “discriminatory burden on interstate commerce.”  But the ruling still does not address government procurement policies.

The better question is whether or not California’s proposed boycott would violate the fourteenth amendment’s “equal protection” clause or the “privileges and immunities” clause in Article IV. By definition, a California boycott would mandate the state discriminate against residents of Arizona and citizens who work for Arizona corporations. This mandated discrimination would be inconsistent with the Supreme Court’s rulings.

Constitutionality aside, a California boycott would be a foolish idea.  Los Angeles’ actions have pushed this issue far enough, and Arizona’s utility companies have made it clear they can find new customers.  San Diego’s boycott has already backfired when it prompted a significant number of Arizona tourists to cancel their travel plans.  A state-level boycott could be a catalyst for interstate tensions.  California’s imminent bankruptcy is already creating enough headaches.  Do state legislators really want to add court battles and rolling blackouts to their list of problems?

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