Appellant, the United Building and Construction Trades Council of Camden and Vicinity, challenges that the city ordinance of Camden that requires at least 40% of the employees of contractors and subcontractors working on city construction projects be Camden residents.
Application of the Privileges and Immunities Clause to a particular instance of discrimination against out-of-state residents must inquire whether the ordinance burdens one of the privileges and immunities protected by the Clause.
A municipal ordinance of the city of Camden, New Jersey requires that at least 40% of the employees of contractors and subcontractors working on city construction projects be Camden residents. Appellant, the United Building and Construction Trades Council of Camden and Vicinity challenges that ordinance alleging a violation of the Privileges and Immunities Clause. The Council filed an appeal after losing in the district court. Meanwhile, the Court decided White v. Massachusetts Council where it held that Boston requiring that at least 50% of all jobs on construction projects funded by city funds be filled by city residents, was valid because Boston was acting as a market participant. The appellant subsequently discarded its Commerce Clause challenge to the Camden ordinance.
Is the New Jersey’s city ordinance that at least 40% of the employees of contractors and subcontractors working on city construction projects be Camden residents immune from the constitutional review?
No, the Camden ordinance results in situations where out-of-state residents who venture into New Jersey will not enjoy the same privileges as New Jersey residents in Camden. While New Jersey citizens not residing in Camden will be equally affected by the ordinance as well as out-of-state residents, New Jersey residents at least have a chance to remedy at the polls any discrimination against hem. On the other hand, out-of-state residents do not have the same opportunity and they must not be restricted to the uncertain remedies afforded by diplomatic processes and official retaliation. Thus, the Camden ordinance is not immune from constitutional review.
When the State acts solely as a market participant, no conflict between state regulation and federal regulatory authority can arise. The Privileges and and Immunities Clause, on the other hand, imposes a direct restraint on state action in the interests of interstate harmony. It is discrimination against out-of-state residents on matters of fundamental concern which triggers the Clause, not regulation affecting interstate commerce. Thus, the fact that Camden is merely setting conditions on its expenditures for goods and services in the marketplace does not preclude the possibility that those conditions violate the Privileges and Immunities Clause. That means, Camden may pressure private employers engaged in public works projects funded by the city to hire city residents without fear of violating the Commerce Clause. However, the same exercise of power to bias the employment decisions may be called to account under the Privileges and Immunities Clause. This Court cannot evaluate Camden’s justification and because no trial has been held in this case, the case is remanded.