Local Hire and the State-Market-Participant Doctrine: A Trojan Horse for the Commerce Power of Congress
"Local hire" laws require that when units of local government hire employees a preference be given to residents of the governmental unit. These laws affect employees directly hired by the city or state, as well as employees hired by private contractors to do construction work. Naturally, this employment preference for residents discriminates against those who do not reside within the city or state. Nonresidents, however, are afforded extensive protection against discrimination by states and their political subdivisions by two clauses of the Constitution: the commerce clause and the interstate privileges and immunities, or comity, clause. This Article will analyze the Court's decision in United Building & Construction Trades Council v. Mayor of Camden and cases that preceded it. The commerce and privileges and immunities clauses will be examined with respect to local hiring preferences, with a consideration of the operation of the two clauses in the private sector and their impact on the control and disposition of state property. Attention will then turn to recent market-participant decisions. This discussion will show that a change-of-residence local-hire law has a good chance of being upheld. Finally, this Article will attempt to explain the Court's decisions concerning the state market-participant doctrine.
Charles H. Clarke, Local Hire and the State-Market-Participant Doctrine: A Trojan Horse for the Commerce Power of Congress, 33 Clev. St. L. Rev. 191 (1984-1985)