Privileges and Immunities Clause of Article IV, Section 2: "The
citizens of each state shall be entitled to all privileges and
immunities of citizens in the several states."
To show that a state law (or a
municipal ordinance) violates the
Privileges and Immunities Clause of Article IV, Section 2, the
challenger must satisfy three preliminary hurdles:
A. The state law must treat
differently citizens (residents) and
noncitizens (nonresidents) of the
state and discriminate against noncitizens (nonresidents); and
B. The state law 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 fundamental privilege or immunity of
state citizenship. The question
is whether the activity the nonresident is seeking to engage in is one
that is "fundamental to the promotion of interstate harmony."
Activities that involve access to private employment
opportunities have been found to be fundamental or essential activities
protected by Article IV, Section 2 while recreational activities have
been found not to be protected by the Clause. In addition, government
employment has been held not to be a privilege or immunity protected by
the clause while private employment has been found to be protected. In
general, the Clause has been viewed as protecting the right of
nonresidents to participate in the private commercial marketplace by
buying and selling goods, buying and selling property, getting a job,
and pursuing other economic opportunities. The extent to which the
Clause protects other kinds of rights is unclear. In addition, the
Court has recently announced that a discriminatory law will only
violate the Privileges and Immunites Clause of Article IV if it has a
protectionist purpose and not if has a discriminatory effect but lacks
a discriminatory purpose: "[T]he Clause forbids a State from
intentionally giving its own citizens a competitive advantage in
business or employment."
If a court concludes the challenger
has satisfied the three preliminary
hurdles, the burden shifts to the state to satisfy a two part test:
1. Does the state 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's objective? This includes a
consideration of the availability of less restrictive means (Supreme
Court of New Hampshire v. Piper).
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).