The boycotts adopted by Los Angeles and other cities against Arizona in response to the state’s recently passed immigration law may be more than self-righteous political posturing. They may also be unconstitutional. The Constitution’s commerce clause reserves the regulation of interstate and foreign commerce to the federal government, and the Supreme Court has held that state and local interference in such areas is prohibited.
In 2000, in Crosby v. National Foreign Trade Council, the Supreme Court reviewed a Massachusetts law forbidding state agencies from contracting with companies doing business in Burma. The Supreme Court struck down the Massachusetts law because it conflicted with a federal statute involving Burma and therefore violated the Constitution’s supremacy clause. Although the federal district court and court of appeals ruled that the Massachusetts law was also inconsistent with the commerce clause, the Supreme Court found no need to address that point.
Massachusetts’ interference with foreign commerce by boycotting companies doing business in Burma is not easily distinguished from Los Angeles and other cities interfering with interstate commerce by boycotting Arizona. Faced with another commerce clause challenge to a boycott, it is not inconceivable that the lower courts might again rule, and the Supreme Court might hold, that the Arizona boycott is unconstitutional.
(Granted, Arizona’s immigration law may face a similar challenge of interfering with the federal government’s exclusive authority to regulate immigration, although Arizona might argue that its law is only intended to enforce the requirements of existing federal immigration law in response to the federal government’s abdication of its constitutional duty to protect the nation’s borders.)
While states and localities are free in many ways to set their own procurement policies, imagine the effects on interstate commerce if these kinds of boycotts proliferated. For example, as other states and localities boycotted Arizona, Arizona might respond in kind, as might states and localities supportive of Arizona’s position. Every time governments in different jurisdictions disagreed with each other’s policies, anarchy and autarky in interstate commerce might result.
The boycotts may also violate the 14th Amendment’s equal protection and privileges and immunities clauses. States and localities may disqualify contractors on many grounds, but discriminating against Arizonans based on their residency, while allowing contractors from the other 49 states to compete, is difficult to reconcile with the requirement that states afford all persons equal protection of the laws and not abridge the privileges and immunities of U.S. citizens.
It is ironic that in protesting an Arizona law they find discriminatory, the boycotting cities are willing to designate all Arizonans for punishment regardless of their lack of culpability for Arizona’s immigration law. According to U.S. Census estimates, 30 percent of Arizonans in 2008 were Hispanic and 9.2 percent of Arizona businesses in 2002 were Hispanic-owned. It is not inconceivable that many Arizonans affected by the boycotts will be Hispanic, notwithstanding the claims of the boycotting cities that they are fighting anti-Hispanic discrimination.
In addition, hypocritically, Los Angeles will continue to import much-needed power from Arizona. Interstate power sales are unquestionably subject to exclusive federal regulation, which is quite convenient for the boycotting cities, since it is doubtful in any event that the Los Angeles Department of Water and Power and other California localities could do without power generated in Arizona. Absent Arizona imports, California’s rolling blackouts during the power crisis in 2000 and 2001 would have been even worse.
Finally, it is no small thanks to stricter immigration enforcement along California’s border with Mexico that the most destructive elements of illegal entry into the United States, such as drug and human trafficking, have concentrated along Arizona’s border with Mexico. While Los Angeles and other cities decry Arizona’s approach to grappling with illegal immigration, they benefit from Arizona bearing the brunt of cross-border violence and disorder.
One would think California’s cities, given their financial situation, would want to contract for goods and services on the most competitive terms and conditions possible, which means maximizing the pool of bidders. Of course, cities like Los Angeles and its counterparts might not be in such poor fiscal shape if their elected officials were more concerned with sound economic management than with showing off their moral vanity and seeking to curry favor with key constituencies.