465 U.S. 208, 104 S. Ct. 1020, 79 L. Ed. 2d 249 (1984)
On August 28, 1980, the Camden City Council adopted Ordinance MC 1650 pursuant to a statewide affirmative-action program.1 The ordinance set minority hiring goals on all public works contracts and created a hiring preference for Camden residents with a separate one-year residency requirement.2
As subsequently amended, the ordinance requires that on all construction projects funded by the city, the developer or contractor shall make every effort to employ persons residing within the City of Camden. In no event shall less than forty percent of the entire labor force be residents of the City of Camden.3 The amended ordinance was submitted for approval to the Chief Affirmative Action Officer of the New Jersey Treasury Department in November 1980.4 Following brief administrative proceedings, the ordinance was designated as a state-approved affirmative-action construction program.
The United Building and Construction Trades Council of Camden County and Vicinity, an association of labor organizations representing private employees in the building and construction trades in New Jersey counties, filed a notice of appeal challenging the Treasury Department's approval.5 The New Jersey Supreme Court certified the appeal directly to that court and upheld the ordinance.6
The Council appealed to the United States Supreme Court, which noted probable jurisdiction.7 After the Court decided White v. Massachusetts Council of Construction Employers, Inc. in 1983, the Council abandoned its Commerce Clause challenge.8 Camden then amended the ordinance in July 1983 by deleting the one-year residency requirement, converting the quota to a goal, and clarifying its scope, thereby narrowing the remaining dispute to the Privileges and Immunities Clause.9
Whether the Privileges and Immunities Clause applies to a municipal ordinance?10
The fact that the ordinance in question is a municipal, rather than a state, law does not somehow place it outside the scope of the Privileges and Immunities Clause.11 A municipality is merely a political subdivision of the State from which its authority derives.12 What would be unconstitutional if done directly by the State can no more readily be accomplished by a city deriving its authority from the State.13
Yes. The Camden ordinance was adopted by the Camden City Council pursuant to a statewide affirmative-action program and received express approval by the New Jersey Treasury Department as a state-approved affirmative-action construction program.14 Even if the ordinance had been adopted solely by Camden, the hiring preference would still have to comport with the Privileges and Immunities Clause because the city derives its authority from the State.15
The Privileges and Immunities Clause applies to the municipal ordinance.16
Whether the Privileges and Immunities Clause applies to an ordinance that discriminates on the basis of municipal residency rather than state citizenship?17
The Privileges and Immunities Clause applies to distinctions based on municipal residency.18 A person who is not residing in a given State is ipso facto not residing in a city within that State.19 Out-of-state citizens disadvantaged by such discrimination have no opportunity to remedy it at the polls unlike in-state residents.
Yes. The Camden ordinance requires that at least forty percent of the labor force on city-funded construction projects be residents of the City of Camden.20 An out-of-state citizen who ventures into New Jersey will not enjoy the same privileges as the New Jersey citizen residing in Camden even though some New Jersey residents not living in Camden are also disadvantaged by the ordinance.21
The Privileges and Immunities Clause applies to the ordinance despite its municipal residency basis.22
Related opinions on this issue
Justice Blackmun dissented on the ground that the Privileges and Immunities Clause was derived from the Articles of Confederation and designed solely to foreclose discrimination based on state citizenship.23 There is no evidence that the Framers intended it to reach intrastate discrimination based on municipal residence.24 Such localism was expected to be handled by the States themselves through their power over municipal charters.25
The Clause remedies breakdowns in the representative process by requiring state residents to bear the same burdens they place on nonresidents.26 Discrimination on the basis of municipal residence penalizes persons within the State's political community as well as those without, allowing state political processes to protect nonresidents too.27
Whether an out-of-state resident's interest in employment on public works contracts in another state falls within the protection of the Privileges and Immunities Clause?28
The pursuit of a common calling is one of the most fundamental privileges protected by the Privileges and Immunities Clause.29 The opportunity to seek employment with private contractors and subcontractors on public works projects funded in whole or in part by a city is sufficiently basic to the livelihood of the Nation to fall within the purview of the Clause even though the contractors are engaged in projects funded by the city.30
Yes. The Camden ordinance sets conditions on city expenditures that bias the employment decisions of private contractors and subcontractors against out-of-state residents.31 This discrimination on a matter of fundamental concern triggers the Clause because the market-participant distinction drawn under the Commerce Clause is not dispositive here given the Clause's separate concern with interstate comity.32
An out-of-state resident's interest in employment on public works contracts in another state falls within the protection of the Privileges and Immunities Clause.33