Building Trades & Construction Trades Council of Camden County and Vicinity v. Mayor and Council of the City of Camden

SUPREME COURT OF THE UNITED STATES


--------------------------------------------------------------------------------

465 U.S. 208


APPEAL FROM THE SUPREME COURT OF NEW JERSEY

--------------------------------------------------------------------------------

No. 81-2110 Argued: November 28, 1983 --- Decided: February 21, 1984

--------------------------------------------------------------------------------

Acting pursuant to a statewide affirmative action program, the city of Camden, N.J., adopted an ordinance requiring that at least 40% of the employees of contractors and subcontractors working on city construction projects be Camden residents. After the ordinance was approved by the New Jersey Treasury Department, appellant, an association of labor organizations representing private employees in the building and construction trades, filed an appeal with the Appellate Division of the New Jersey Superior Court challenging the Treasury Department's approval of the ordinance. The New Jersey Supreme Court certified the appeal directly to that court and rejected appellant's challenges to the ordinance's validity, including the claim that the ordinance violated the Privileges and Immunities Clause of Art. IV of the Federal Constitution. The court held that the Clause did not apply, because the ordinance discriminated on the basis of municipal, not state, residency, and had identical effects upon out-of-state citizens and New Jersey citizens not residing in Camden.

Held:

1. The ordinance is properly subject to the strictures of the Privileges and Immunities Clause. Pp. 214-218.

(a) That the ordinance is a municipal, rather than a state, law does not place it outside the Clause's scope. Here, municipal action cannot be distinguished easily from state action, since the ordinance would not have gone into effect without the Treasury Department's approval. Moreover, a municipality is merely a political subdivision of the State, and 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. Pp. 214-215.

(b) The Clause applies not only to laws that discriminate on the basis of state citizenship, but also to laws that discriminate on the basis of municipal residency. For purposes of analysis of most cases under the Clause, the terms "citizen" and "resident" are essentially interchangeable. Camden's ordinance is not immune from constitutional review [p209] at the behest of out-of-state residents merely because in-state residents who do not live in Camden are similarly disadvantaged. While such in-state residents have no claim under the Clause, nevertheless they at least have a chance to remedy at the polls the discrimination against them. Pp. 215-218.

2. On remand, the determination of whether the Camden ordinance violates the Privileges and Immunities Clause should be made under the appropriate constitutional standard, which requires determination of whether the ordinance burdens one of those privileges and immunities protected by the Clause, and, if so, whether there is a "substantial reason" for the discrimination against citizens of other States. Pp. 218-223.

(a) Although 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, cf. White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. 204, an out-of-state resident's interest in employment by private employers on public works projects in another State is sufficiently fundamental to the promotion of interstate harmony and sufficiently basic to the livelihood of the Nation as to fall within the purview of the Privileges and Immunities Clause. Pp. 218-222.

(b) However, it is impossible on the record as it now stands to evaluate Camden's contention that its ordinance is carefully tailored to counteract grave economic and social ills involving unemployment of city residents and a sharp decline in the city's population. On remand, the New Jersey Supreme Court may decide, consistent with state procedures, on the best method for making the necessary findings of fact. Pp. 222-223.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, POWELL, STEVENS, and O'CONNOR, JJ., joined. BLACKMUN, J., filed a dissenting opinion, post, p. 223. [p210]