Appellant argues that the city requiring at least 40% of the employees of contractors and subcontractors working on city construction projects be Camden residents violates the Constitution.
Even though a city ordinance discriminates against a protected privilege, it does not violate the Constitution if there is a substantial reason for the difference in treatment.
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 States and Construction Trades Council of Camden and Vicinity challenges that ordinance as a violation of the Privileges and Immunities Clause.
Is the municipal ordinance requiring 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 city ordinance at issue 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. Therefore, the Camden ordinance is not immune from constitutional review.
The Privileges and Immunities Clause does not apply to discrimination on the basis of municipal residence. The Clause does not afford the state residents any protection against their own State’s laws. The Clause at the same time, however, does not give nonresidents higher and greater privileges than are enjoyed by the citizens of the stat itself. Also, the Court fails to attend to the functional considerations that underlie the Privileges and Immunities Clause. Discrimination on the basis of municipal residence penalizes persons within the State’s political community as well as those without. What the Court fails to appreciate is that this avenue of relief of New Jersey residents works to protect residents of other States as well; disadvantaged state residents who turn to the state legislature to displace ordinances like Camden’s further the interests of nonresidents as well as their own.
Camden may, without fear of violating the Commerce Clause, pressure private employers engaged in public works projects funded in whole or in part by the city to hire city residents. But that same exercise of power to bias the employment decisions of private contractors and subcontractors against out-of-state residents may be called to account under the Privileges and Immunities Clause. Every inquiry under the Privileges and Immunities Clause must be conducted with due regard for the principle that the states should have considerable leeway in analyzing local evils and in prescribing appropriate cures. This caution is particularly appropriate when a government body is merely setting conditions on the expenditure of funds it controls. There seems no economic ripple effect that appears to infect the Camden ordinance. It is limited to scope to employees working directly on city public works projects. Nonetheless, because it is impossible to review Camden’s justification on the record as it now stands, the case was remanded to the New Jersey Supreme Court.