Privileges and Immunities Flashcards
Privileges and Immunities (P&I) in the text of the Constitution
Art. 4 Sec. 2 Cl 1
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
14 Amendment Sec. 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Purpose of Art. 4 P&I clause (Comity Clause)
To “fuse into one nation a collection of independent, sovereign states.”
Effectively, prohibits state governments from discriminating against out-of-state residents w/o a substantial reason.
Art 4 Standard of Review Analysis
First, is the state discriminating against a non-citizen?
- If Yes, is it a fundamental constitutional right?
-> If Yes, apply intermediate scrutiny.
- If Yes, is it a fundamental NON-constitutional right?
-> Conduct non-constitutional right analysis. A non-constitutional fundamental right is a right that bears on the vitality of the nation as a single entity.
–» If this is a non-constitutional right and it involves earning a living or plying a trade, there is 1 more question before we go to intermediate scrutiny: was there discriminatory purpose? This is the protectionism question. Is the law adopted to give a competitive advantage in business to that state’s own people? If the answer is no, and there is no protectionism, then the analysis ends there and the Art 4 argument dies.
—»> If Yes, there was discriminatory purpose in plying a trade, then go to intermediate scrutiny.
–» If the fundamental non-constitutional right is about buying property, apply intermediate scrutiny.
–» If the fundamental non-constitutional right is about something other than earning a living, but you can convince the court it bears on the vitality of the nation, then you can go straight to intermediate scrutiny.
Art. 4 Substantial Reason Test - Doe v. Bolton - SoR
Test - The P&I clause of Art. 4 does not preclude discrimination under the following circumstance:
1) There is a substantial reason for the difference in treatment; and
Note: This element cares about goals and purpose.
2) The discrimination against nonresidents bearing a substantial relationship to the State’s objective.
Note: This element cares about the means.
To decide whether the discrimination bears a “substantial” relationship to the State’s objective, consider the availability of less restrictive means.
Ex:
A law that had no rationale for preventing non-residents from using its medical facilities was held to violate Article 4. (Doe v. Bolton)
Example:
A state may charge a nonresident more than it charges a resident for the same hunting license.
Business Comity Requirement - NH v. Piper
Doing business within a state on terms of substantial equality with the citizens of that state is a privilege protected by the P&I clause,
SCOTUS has struck down laws for violating the privilege of doing business on equal terms when such laws were enacted for protectionist purposes to burden out of state citizens. If the clear aim of the statute was to advantage in-state workers and commercial interests at the expense of their out of state counterparts, that’s protectionist and therefore disallowed. (NH v. Piper)
Rationale:
Yes, it is important to the national economy but also to let the justice system function. Out of state lawyers may represent persons who raise federal claims. Sometimes, out of state representation may be the only means available for vindicating federal rights. See Supreme Ct of NH v. Piper.
Effect of Incidental Burdening + Fundamental Reasoning on Art. 4 Substantial Reasoning - McBurney v. Young
As a general rule, the P&I clause only protects fundamental rights, nonetheless States are not free to needlessly burden non-residents even if its only nonfundamental rights. However, if the burden is only incidental to another appropriate fundamental reason then it does not violate the P&I Clause.
Ex:
Even if a law creates a distinction between citizen and non-citizen such a difference need not be eliminated under Article Four, so long as it does not “does not deprive noncitizens of “reasonable and adequate” access to the Commonwealth’s courts.”(McBurney v. Young)
Slaughterhouse - Killing the 14th Amendment P&I in the Cradle
Majority: Gutted the P&I clause. Said Art 4 P&I requires a state to treat visitors from other states with the same rights as it treats its own. Fundamental rights that are protected by the the states, not the feds, and belong to citizens of all free governments. The 14th A speaks only of the privileges and immunities of citizens of the US, not those of individual states. Didn’t want to give feds significant power over states. Art 4 says nothing about how a state must treat its own people, so if they treat their own people poorly, they can treat visitors poorly too despite being those visitors also being citizens of the US.
Dissent: Thought Art 4 protected fundamental rights of one state’s citizens being violated by another state. Thought the 14th A prevents fundamental rights from being violated in any way, which would put power in the fed gov.
Equal Treatment under P&I - Resident v. Non-Resident (14th Amendment) - The resurrection of the 14th Amendment’s P&I Clause.
As a general principle the 14th Amendment requires equal treatment between residents and nonresidents if it would bear on the vitality of the nation as a single entity.
Ex:
States can’t limit state benefits to non-residents if it would depress their ability to travel. (Saenz v. Roe - Its an example of overlap b/w Art 4 and 14th Amend.)
What is the purpose of the 14th A P&I clause?
Its current function is part of the 3rd component of the right to travel (the right to move to a new state and make it your home). It’s not an Art 4 problem because you are not a visitor. Saenz v. Roe is exactly that - the welfare recipient restriction on new residents violated the 14th A version of the P&I clause.
14A Sec 1 - All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
The key language there is that you’re a citizen of the State where you reside even if you’re new there.
State must pass strict scrutiny if a state isn’t treating a new resident as a fully fledged citizen.
SoR of a State Not Treating a New Resident as a Fully Fledged Citizen
Strict Scrutiny for 14th A right to travel issue
SoR under Art 4 P&I
Intermediate scrutiny
If a privilege and immunity bears on the vitality of the nation as a whole, when can a state still discriminate against nonresidents?
Permissible justifications for discrimination between residents and nonresidents are inapplicable to a non-resident’s exercise of the right to move to another state and become a resident there. (Crandall v. Nevada)
What is the difference between Article 4 and the 14th Amendment (P&I Clause)?
These are not interchangeable.
Art 4’s P&I clause has been there since the Philadelphia Convention, but the second P&I clause is in the 14th A.
Art 4 is saying the states have to treat citizens of other states as if they are citizens of their own states. The 14th A protects citizens of the US federally. Art 4 speaks in the language of state citizenship, whereas 14th A refers to US citizenship.
The Art 4 P&I clause is about fundamental rights. What kind of fact would bring Art 4 in play? Some kind of cross-border dealings between a citizen and some other state.
How to determine whether to apply Art 4 P&I or 14th A P&I?
If it is unclear whether a person has made a state their new home, analyze both Art 4 and 14th A. If it is their new home, use 14th A. If not their new home, use Art 4. If you move to a new state and are treated poorly because you are a newcomer, use strict scrutiny.
How do you determine what is a fundamental non-constitutional right in the P&I context?
This is a right that “bears on the vitality of the nation as a single entity”.
The right to buy property or ply your trade/earn a living are rights that bear on the vitality of the nation. If not having the right would make it feel like living in separate countries, then the states can’t prevent nonresidents from doing this.
