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.