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In Defense of Resident Hiring Preferences: A Public Spending Exception to the Privileges and Immunities Clause |
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Patrick Sullivan |
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| This Comment analyzes the legal hurdles that
cities must overcome when they attempt to mandate
resident hiring preferences on public works
construction projects. It begins by noting an
emerging doctrinal inconsistency in the way
courts review these local resident preference
plans. Specifically, it observes that cities have
been able to overcome challenges brought under
the Dormant Commerce Clause by appealing to a
market participant exception, while they have not
been able to invoke an analogous defense to fend
off challenges brought pursuant to the Privileges
and Immunities Clause. In analyzing this inconsistency, this Comment argues that there is no principled reason for the different treatment the two types of claims receive, given that both Clauses were motivated by similar principles of interstate comity and economic unity. This Comment argues further that there can and should be a public spending exception to the Privileges and Immunities Clause, similar to the Dormant Commerce Clause's market participant exception. The exception would exempt cities from the Privileges and Immunity Clause's purview when those cities place local resident hiring requirements on jobs funded with public money. Such an exception would be consistent with the underlying principles of the Clause, would respond to the particular contours of current Privileges and Immunities doctrine. Further, an exception would allow cities to adopt commonly employed preference plans, which plans cities rely on to address many pressing social problems. |
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Copyright
© 1998 by California Law Review, Inc. |
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