L.A.’s Illegal Arizona Boycott

May 13th, 2010 at 12:42 pm | 24 Comments |

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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.

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24 Comments so far ↓

  • Rabiner

    You realize that while the city of Los Angeles has about 50-60 million dollars in contracts with Arizona only 7.7 million is subject to this new city ordinance. It’s more symbolic than anything else.

    “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.”

    To the author, it is more to deal with structural issues such as Prop 13 as to why California is in a budgetary crisis. In addition we are one of the largest donor states in the country and get only 78 cents for every dollar paid in federal taxes as of 2005. ( http://www.taxfoundation.org/taxdata/show/22685.html )

  • DFL

    The NAACP called for a boycott of Myrtle Beach, SC because the Confederate flag flew on that state’s capitol grounds and tourism increased. The call for boycotts are pointless posturing.

  • forgetn

    It worked, you’re talking about it! Of course boycotts don’t work. The whole point is to get publicity for/or against something that appears unpopular. Moreover curious Americans will Google “Arizona Laws” and find a number of other “amusing” laws that were recently enacted.

    I though that the school which decided not to participate in a sporting tournament in Arizona was much more interesting, insofar as school in other states don’t want to take the risk that some of their students could be arrested in Arizona for being illegal immigrants. Can you imagine being a coach and find the cops asking the children you are supervising for their “papers” . Once again the law of unintended consequences.

    I know that if I was in charge of a group of minor of mixed origin I would think twice about taking them to Arizona — it would be an incredibly foolish thing. Everybody knows that this is exactly what will happen, some poor schmuck will bring his swim team to Phoenix and some cop will be assigned to check the nationality of each child, and some poor kid will be shit out of luck…

  • JimBob

    Rabiner writes “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.””

    Like getting tough with illegal immigration. That would be a huge start.

  • Rabiner

    Actually I didn’t write that Jim. That was a quote from the author. However it is not the role of cities to enforce immigration laws as that is the role of the federal government.

  • JimBob

    And since California is all but bankrupt the FEDs aren’t doing it. Los Angeles will have to declare bankruptcy . Economic realities begin to set in. Water can only run up hill for so long.

    http://www.newsweek.com/id/237640

  • mv1526

    Have to correct the fallacies as I read them….

    Forgetn – The law does not allow for police to indesciminately ask people for citizenship papers. It requires that while in the course of OTHER police actions, like arresting someone for robbery, assault, drug possession etc, that they request proof of citizenship. So unless your team of minors are criminals then they risk nothing going to Arizona. So perhaps the teams loaded with criminal minors will go the LA and play.

    Rabiner – It is law enforcements responsibility to enforce ALL laws whether they be City, County, State or Federal. The problem has been that for various reasons certain jurisdictions have decide not to enforce those laws. There is no Federal Police Department. It is the federal government that prosecutes federal offenses. Thats where the problem lies.

  • Rabiner

    mv1526:

    I know that local law enforcement can ask for residency documents if they have stopped a person for another offense. However the Arizona law gives Police the power to ask individuals for papers when they are not committing another offense.

  • Slide

    mv1526 // May 13, 2010 at 3:36 pm : It requires that while in the course of OTHER police actions, like arresting someone for robbery, assault, drug possession etc,

    Of course this makes it sound that only people committing these horrible crimes would be subjected to the Arizona law. That is not true. The original law said any “lawful contact”. That would mean any contact with police other than unlawful ones. Such a a victim of a crime reporting that crime would have to produce their “papers”.

    Realizing that that was not a very good idea, they amended the law so that instead of “lawful contact” it now says, “lawful stop, detention or arrest”. A lawful stop is being stopped for having your taillight out. Stop making it sound as if only “robbers or vicious criminals” will be affected by the law. It just isn’t so.

  • Dukakis in a Tank

    I’m glad someone wrote about this. I’ve been wondering about the dormant commerce clause issues with these boycotts. But I wish you would have looked into the law more. For instance, when was the last time the Court enforced the dormant powers of the commerce clause?

  • ktward

    I though that the school which decided not to participate in a sporting tournament in Arizona was much more interesting

    Highland Park High School, Varsity Girls Basketball. An affluent North Shore (Chicago) community. Not too far from me.

    It’s no surprise that Palin would make hay of it at last night’s Rosemont gig, but to date, nearly all apolitical critics of District 113′s decision are the current Team’s parents. Understandable. I can’t honestly say that I would not have felt similarly– when it comes to our very own kids, the bigger picture often easily dissolves.

    Bigger picture:
    1) The AZ trip isn’t until December, so school officials have no idea what practical shape 1070/2162 might have taken by then. Indeed, since Varsity players aren’t even selected until Nov, it’s unclear which students would even be eligible for this trip.
    2) 113 is required, Constitutionally, to provide equal educational opportunity regardless of immigration status. There exists no mechanism by which they might exclude undocumented students from their extra-curricular team ranks. HPHS is about 15% Latino.
    2) This is not a championship tourney, it is an experiential event that was requested only two weeks ago. Plenty of other places to go of equal caliber in every respect.

    District 113′s statement:
    http://www.dist113.org/Pages/arizonaletter.aspx?Source=http%3A%2F%2Fwww.dist113.org%2FPages%2FDefault.aspx

  • jakester

    Of course, these same cities routinely flaunt federal immigration laws by opening pandering to criminal aliens with sanctuaries and other programs aimed at illegals. This is such a racist policy. a group of people intentionally flaunts our laws then claims those lawas are racist. It would be like all Finns routinesly urinated in public then claimed anti-urination laws are racist cause they unfairly and/or disproportionality target Finns.
    LA is a cesspool of gangs of illegal aliens, maybe they can coax the illegals in Arizona to come to LA to bolster the gang enrollment or welfare rolls because who wants dull old white people when you can have those warm, colorful dancing-singing Mejicanos

  • ktward

    LA is perhaps walking a fine line, but it seems they’re on the legal side of it:

    [T]he “market participant exception” to the dormant commerce clause creates an exception that allows states and municipalities to discriminate against interstate commerce when they are acting as “market participants” rather than “market regulators”. As the Court said in Hughes v. Alexandria Scrap, “the long recognized right of trader or manufacturer, engaged in entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal” seems to render a state or municipal boycott constitutionally permissible.
    http://themoderatevoice.com/72379/are-arizona-boycotts-unconstitutional/

  • ktward

    showing off their moral vanity and seeking to curry favor with key constituencies.

    ‘Moral vanity’? An odd finger for a Republican to point.

    About 47% of LA’s population are of Latino descent. Damn skippy they’re key constituents.
    http://losangeles.areaconnect.com/statistics.htm

  • ottovbvs

    DFL // May 13, 2010 at 1:27 pm

    “The NAACP called for a boycott of Myrtle Beach, SC because the Confederate flag flew on that state’s capitol grounds and tourism increased. The call for boycotts are pointless posturing.’

    ……On the other hand boycotts have also been very effective………Am I being unconstitutional because I wouldn’t go to Arizona (to be fair I haven’t been for a couple of years) but I avoid places that are trying to turn the clock back to 30′s Alabama…….I find it hard to believe that individuals and organizations across the country aren’t reviewing their intentions with regard to everything to golfing holidays to business meetings and conventions……since the business community are generally in favor of immigration they don’t have much incentive to go the stake for AZ so I suspect as a practical matter 1070 is going to have some impact on the AZ tourist and meeting trade…….and a 20% drop would be fairly ugly in terms of their volume and profitability

  • forgetn

    mv1526

    Never underestimate for things to go wrong. Unless I am crazy one part of the bill that makes police officers liable if they don’t follow up on a tip-off, will create the kind of stupid situation. Of course this kind of thing should not happen, but lets say the police department received an anonymous tip that a bunch of teenage boys are creating a ruckus… I assure you that if I was a coach (and I do coach a hockey team) that if I had children whose nationality was in doubt I would not take a chance. I’ve seen to many nasty arena fights between parents to trust them not to do something as stupid as calling the cops on the other team.

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  • ktward

    Perhaps I make a picayune distinction at this point on the thread, but the issue is not about private sector boycotts of AZ: private citizens–and undocumenteds–orgs and biz can legally boycott all they want, and are. I suspect there will be more.
    http://www.azcentral.com/business/articles/2010/05/13/20100513immigration-boycotts-list.html

    The issue is whether or not gov. entities–cities, municipalities, states–are violating the commerce clause in instrumentally boycotting AZ.

    As I noted in my previous post, LA seems to be just barely on the legal side of that fine line. I suspect there’s lots of drama still to come.

  • easton

    Slide: Such as a victim of a crime reporting that crime would have to produce their “papers”.

    Dead on, I simply can’t see how it is a good idea to make people in neighborhoods where crime is at its worse to view Police in an adverserial relationship. Consider this the “it is now legal to rape and rob illegals” law, since if they report it, they can be deported.

    For heaven’s sake, enforce labor laws, fine and arrest everyone who hires an illegal immigrant but give all employers the technology to easily verify qualifications for employment (it is called data mining). Do random sweeps of all businesses, in a matter of months illegal employment will dry up when employers fear prison more than illegally gotten profit.

    As to myself, I am boycotting Arizona. I have no desire to have to travel with my birth certificate (and I suppose it has to be the original because the copies are not good enough for these yahoos) and a ton of other documentation out of fear (wait, what am I thinking, I am white, there is no way they will ask ME for my documentation)

  • gpherder

    To Rabiner:

    Because striking down Prop 13 and allowing California to add new, ruinous taxes to its homeowners is a good thing, is it?

    After all, the problem isn’t our city/state governments are spending TOO MUCH MONEY. The problem is selfish Californians aren’t willing to cough up MORE money for California to spend on welfare, illegal immigrants, and keeping themselves all cozy up in their own little nests.

  • Chasm

    The author wrote:
    “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.”

    Well, yes it is easily distinguished, provided one has read anything about Crosby v. National Foreign Trade Council. In Crosby, the court ruled that the MA law was unconstitutional because the Federal Gov already had a punitive law on the books, and the court felt that MA was stepping on the effect of that law. Until the US Congress passes, and the President signs, a law sanctioning Arizona, than I don’t think Los Angeles has anything to worry about in that regard.

    Your 14th Amendment argument is much more persuasive, as chaos would ensue if every state decided to boycott every other state over laws they didn’t like.

    And, one might think that LA would want the most competition for its’ dollars, but one might also think that Arizona would have gamed this thing out a bit better and seen all this coming.

  • Rabiner

    gpherder:

    Actually Prop 13 does a lot of things that have been ruinous to California for the past 30 years. It has stifled new business for one. Prop 13 applies to all properties including commercial and industrial property.

    If you were to start a new business and purchase the land for it, you would be paying property taxes based on today’s assessment. However if you are competing against a business who started their business 30 years ago, they’re property taxes are based on the assessment from 30 years ago. This difference in base costs creates a competitive disadvantage for new businesses entering the marketplace and stifles competition. an example of this from an extreme perspective can be Disneyland versus California Adventure. Just assume they were not owned by the same company but by competitors instead. Disneyland currently pays about a nickle per square foot in property taxes based on their assessment from years ago. California Adventure pays actually around 15-20 times more per square foot in property taxes since it is a much newer business even though it is adjacent to Disneyland. What if we took that to smaller businesses like department stores or small business? If your direct competitor is paying $1,000 a month less in property taxes than you, how can you compete in price while maintaining profit? They can always undercut you and still make that extra profit you could never obtain.

    Prop 13 due to the restrictions it has put on property taxes means that in order to raise revenues to offset dwindling property tax revenues the state and municipals must increase fees on various items or increase sales tax. Property taxes are far more effective in maintaining revenues for a state since they typically are less responsive to the business cycle and are more stable sources of income. California receives more than 50% of its revenues from income taxes which is a very high figure. If property taxes was a greater proportion of revenues there would be less fluctuation and more stability in revenues to do better long-term planning.

    The city I grew up in and currently live receives only 5% of its revenues from property taxes. Therefore we have had to increase fees on utilities, increase sales taxes, and reduce services such a shortening time parks are open to the public and when lights turn off at night to help balance our budget. Even with that, since we are so dependent on sales tax, this current recession has still caused us to run a deficit of 6 million this past year. If we had 30% of our revenues in property taxes we wouldn’t have such a large fluctuation in tax receipts and would be better off as a municipal for it.

    Also I did mention that there has a been an expansion of government which is problematic to the state’s budget problems but most of the budget deficit from the past two years has been from a huge drop in revenues as incomes decreased. But the fact we’re also one of the largest donor states to the Federal Government is a huge issue as well.

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