Boycotts by One State Against Another

During the recent controversy over Indiana’s RFRA, some states banned non-essential travel by state employees to Indiana.  (What would constitute essential travel to Indiana was left unsaid.)  This got me thinking about whether there are any constitutional limits on a state–acting as a market participant–boycotting another state.

An example of a state’s broad authority to discriminate in favor of its residents is that tuition charged to in-state students can be lower than for out-of-state students.  Suppose, though, that a state said: “We will not admit any students from State Y to state universities because of State Y’s policy on something.”  Could this be done?  Maybe this would flunk rational basis review, but one could say in favor of rationality that a state wants to express its outrage at State Y’s policy.  The Dormant Commerce Clause is not at issue because the state is acting as a market-participant rather than as a regulator.  Is there a Privilege or Immunities Clause claim here?  Maybe, but why?

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7 Responses

  1. Charles Paul Hoffman says:

    I would think there’s a fairly strong P&I case on the basis of the restriction of the right to travel within the United States. Barring applicants from a specified state effectively keeps citizens of that state from being able to move. I would think this sort of restriction would be enjoined practically immediately.

    That said, the travel bans, insofar as they are limited to individuals acting on behalf of the state while doing state business (e.g., so long as they don’t apply to people like my mother-in-law, a teacher in New York who recently came to visit her granddaughter while on spring break) are a lot tougher. The state has some discretion where to spend its money, but the constitutional principles underlying the freedom of movement and dormant commerce clause are fairly strong, if rarely actually challenged in a direct way by the states.

  2. Gerard Magliocca says:

    Why would denying a state’s residents admission to another state’s university violate the right to travel?

  3. Joe says:

    I think equal respect for other state’s citizens is the core purpose of the Privileges and Immunities Clause. Merely being against the policies of the other state seems a rather open-ended loophole. Consider how slavery split states in antebellum times. Or religion.

    I would think that the freedom of travel includes not discriminating potential future residents in the allotment of basic resources like state education. For someone of college age, college is a fundamental aspect of life & denying out of state residents completely there is a burden on travel. It is not a trivial one either like blocking someone from a one time event – we are talking about a lot of potential students being stopped from traveling & only a few states will be burdened. That would be a P&I problem.

  4. Joe says:

    Off topic: Last Fall, there was a reference to a panel on the 50th Anniversary of Griswold at University of Connecticut School of Law.

    It was my understanding that the law review would have articles on the matter about this time but don’t see it on their website. Does anyone know if or when it will be available?

  5. Chuck says:

    What would constitute essential travel to Indiana was left unsaid.

    As one example, the SUNY-Buffalo softball and women’s tennis teams weren’t allowed to travel to Ball State for scheduled games last week. The tennis match was canceled, and the softball game was played at Miami of Ohio, about 70 miles from Ball State.

  6. AYY says:

    Prof. M.
    The problem with the example you gave is that state universities are run by Trustees or Regents. They have the power to run the university., but they don’t have the same power the legislature or the governor does to express the views of the State.. Expressing outrage at another state isn’t an authorized purpose, or even a rational one given their limited roles. So you don’t even get into P and I issues. All you need to do is show up in court with their job descriptions.