Are Arizona Boycotts Unconstitutional?

Arizona’s controversial anti-immigrant legislation is provoking a storm of negative reactions. The City of San Francisco has passed a “recommendation” that discourages travel to Arizona. The City of Los Angeles has gone much further, approving an ordinance that outright bans official travel to Arizona and seeks even to cancel existing contracts.

In moral and political terms, the backlash is quite understandable. Even after having been modified to raise the threshold at which local police can require those they come in contact to prove their legal immigration status and to insert a pro forma prohibition on the use of racial profiling, the underlying tone and purpose of the law is clearly hostile towards Hispanic immigrants. Anyone who seriously believes that the appearance of Hispanic racial or cultural signifiers will not be part of the process by which a police officer develops a “reasonable suspicion” that a given person might be illegal is frankly not living in the real world. Moreover, the rhetorical and ideological presumptions upon which the law rests — that illegal immigrants are uniquely likely to be dangerously violent criminals or sources of disease — are transparently and irredeemably racist.

The law has very bad policy implications as well. Insofar as any “lawful contact” with police could raise the possibility that anyone in the vicinity might be challenged to prove that they are legally present in the country, members of communities with any substantial number of immigrant families will be reluctant to report crimes or serve as witnesses, since doing so could open up themselves, their families, their friends, and their neighbors for possible exposure and deportation even if they have committed no other crime than the trivial crime of crossing some line on a map without permission. The consequence of Arizona’s anti-immigrant indulgence could be to make law enforcement even harder than it already is.

All that being said, however, the particular method chosen by cities like San Francisco and L.A. (and under consideration in dozens of other states and municipalities, if not hundreds) is highly problematic, both in policy and legally. In policy, the imposition of boycotts — especially boycotts on travel — will disproportionately punish the very same groups targeted by Arizona’s law. Immigrants are disproportionately likely to be employed as workers in service industries such as hotels and restaurants. Cutting off travel to Arizona will affect those workers first. I’m sure that workers thrown out of their jobs will not be comforted much by the assurance that the boycott which necessitated it was intended to protest their mistreatment by the government of Arizona.

The legal issue seems to me even more clear-cut, at least on the face of it. In Dean Milk v. City of Madison, 340 U.S. 349 (1951), the U.S. Supreme Court ruled that municipalities may not pass ordinances that discriminate against interstate commerce unless doing so is the only possible way to fulfill a legitimate local purpose. Unless there is some importance that I am unaware of to the distinction between discriminating against all interstate commerce and discriminating against interstate commerce with a particular state, municipal (as well as presumably state) boycotts against Arizona would seem to run directly afoul of Dean Milk. Moreover, it seems very doubtful on first impression that municipalities could claim that their boycotts are justified by a “legitimate local purpose”. Even if we were to accept the doubtful notion that combating discrimination against Hispanics in Arizona was a “local purpose” in San Francisco, the fact that the underlying purpose or the boycotts is primarily expressive — expressing disapproval — means that there are innumerable alternatives to doing so by impeding interstate commerce.

Thus, on first blush, I can’t see how these boycotts can stand up to a constitutional challenge. But, on the other hand, I have been unable to immediately find constitutional challenges, successful or otherwise, to previous boycotts such as those directed at the anti-gay Amendment 2 in Colorado and Arizona’s refusal to adopt the Martin Luther King Day holiday in the early 1990s. So perhaps I’m just missing something here that all the smart constitutional lawyers in actual practice have locked away in a place where a mere 1L has not yet been able to find it.

UPDATE: The folks at the Volokh Conspiracy — the best legal blog in the blogosphere (yes, that is shameless begging for links at the same time it is true) — are beginning to ask the same question.

UPDATE: An update at Volokh points out that the “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. But it seems that the L.A. boycott may move beyond merely targeting activities where the city is a “market participant” to include “market regulation” as well, insofar as it does not just say it will or won’t deal with specific actors, but rather says the city will refuse to deal with any actor in a given location until that location changes its laws. The city is, in short, using its market power (in combination with other states and municipalities — are there anti-trust implications here as well?) to try to coerce another state to change its laws. Regardless of its merit in this specific case, such a precedent would potentially destroy the very purpose of the commerce clause itself — preventing states from undertaking coercive trade practices against each other and thus resulting in trade wars amongst the states. What happens if Arizona enacts a counter-boycott? What happens if more states pass Arizona-style laws and boycotts and counter-boycotts spread throughout the country? Wouldn’t that be the end of the national economy and, in effect, the end of the interstate commerce clause itself?

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Author: JASON ARVAK