Privileges and Immunities
Clause of Article IV, Section 2.
To show that a state law (or a municipal ordinance) violates the
Privileges and Immunities Clause of Article IV, Section 2, the
challenger first must satisfy three preliminary hurdles:
A. The state law or municipal ordinance must treat differently
citizens (residents) and noncitizens (nonresidents) of the
state and discriminate against noncitizens (nonresidents); and
B. The state law or municipal ordinance must be challenged by a
flesh and blood
nonresident of the state rather than a corporation or other artificial
entity; and
C. The discrimination must adversely affect a privilege or
immunity of state citizenship. The question is whether the
activity the nonresident is seeking to engage in is one that is a basic
right or essential activity and is, therefore, "fundamental to the
promotion of interstate harmony." Access to private employment
opportunities have been found to be fundamental or essential activities
protected by Article IV, Section 2 as has the right of a nonresident
to purchase property within the state. However, both the right to
obtain
government employment and the right to gain access to recreational
activities on the same terms as residents have
been found not to be activities protected by the Clause.
D. If a court concludes that the challenger has satisfied the
three preliminary hurdles (A, B, and C above), the burden shifts to the
government to
satisfy a two part test:
1. Does the state or locality have a substantial reason for
treating nonresidents
differently? (are nonresidents a peculiar source of the evil); and
2. Does the degree of discrimination against nonresidents bear a
substantial relation to the state or local government's
objective? Does the degree of discrimination against nonresidents bear
a
substantial relation to the state or local government's
objective? This inquiry includes a
consideration of the availability of less restrictive means (Supreme
Court of New Hampshire v. Piper)
as a method of evaluating the
relationship between the ends and the means. However, this standard is
a version of intermediate scrutiny rather than strict scrutiny.
Therefore, the government is not required to adopt the least
discriminatory alternative means to accomplish its objective under this
test.
E. In this analysis, unlike under the dormant Commerce Clause,
there is no
exception when the state is acting as a market participant (United
Building & Construction Trades Council v. Mayor and Council of
Camden).
Because of the differences between the dormant Commerce Clause and the
Privileges and Immunities Clause of Article IV, it is possible for a
law to be constitutional under the dormant Commerce Clause (immunized
by the market participant exception, for example), but unconstitutional
under the Privileges and Immunities Clause (no market participant
exception). The opposite result can also occur. A law can be
successfully challenged under the dormant Commerce Clause (the law
discriminates against out-of-state commerce and there are
nondiscriminatory alternatives available), but unsuccessfully
challenged under the Privileges and Immunities Clause (the challenger
is a corporation or the degree of discrimination bears a substantial
relation to the objective even though there are nondiscriminatory
alternatives available). Because these two constitutional arguments are
not identical in scope, they should be considered as alternative
arguments in cases where both claims can be asserted.