United Building and Construction Trades Council of Camden County and Vicinity v. Mayor and Council of City of Camden, No. 81-2110

CourtUnited States Supreme Court
Writing for the CourtREHNQUIST
Citation104 S.Ct. 1020,465 U.S. 208,79 L.Ed.2d 249
Decision Date21 February 1984
Docket NumberNo. 81-2110
PartiesUNITED BUILDING AND CONSTRUCTION TRADES COUNCIL OF CAMDEN COUNTY AND VICINITY, Appellant v. MAYOR AND COUNCIL OF the CITY OF CAMDEN et al

465 U.S. 208
104 S.Ct. 1020
79 L.Ed.2d 249
UNITED BUILDING AND CONSTRUCTION TRADES COUNCIL OF CAMDEN COUNTY AND VICINITY, Appellant

v.

MAYOR AND COUNCIL OF the CITY OF CAMDEN et al.

No. 81-2110.
Argued Nov. 28, 1983.
Decided Feb. 21, 1984.
Syllabus

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 re-

Page 209

view 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, 460 U.S. ----, 103 S.Ct. 1042, 75 L.Ed.2d 1, 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.

88 N.J. 317, 443 A.2d 148 (1982), reversed and remanded.

Steven K. Kudatzky, Haddonfield, N.J., for appellant.

N. Thomas Foster, Camden, N.J., for appellees.

Page 210

Justice REHNQUIST delivered the opinionof the Court.

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 Building and Construction Trades Council of Camden and Vicinity (the Council), challenges that ordinance as a violation of the Privileges and Immunities Clause, Article IV, § 2, of the United States Constitution.1 The Supreme Court of New Jersey rejected appellant's privileges and immunities attack on the ground that the ordinance discriminates on the basis of municipal, not state, residency. The court "decline[d] to apply the Privileges and Immunities Clause in the context of a municipal ordinance that has identical effects upon out-of-state citizens and New Jersey citizens not residing in the locality." 88 N.J. 317, 342, 443 A.2d 148, 160 (1982). We conclude that the challenged ordinance is properly subject to the strictures of the Clause. We therefore reverse the judgment of the Supreme Court of New Jersey and remand the case for a determination of the validity of the ordinance under the appropriate constitutional standard.

On August 28, 1980, the Camden City Council, acting pursuant to a state-wide affirmative action program,2 adopted an

Page 211

ordinance setting minority hiring "goals" on all public works contracts. Ordinance MC 1650, Pet., at A36. The ordinance also created a hiring preference for Camden residents, with a separate one-year residency requirement triggering eligibility for that preference. Id., at § I(5), Pet., at A38. As subsequently amended, the ordinance requires that on all construction projects funded by the city: 3

"The developer/contractor, in hiring for jobs, shall make every effort to employ persons residing within the City of Camden but, in no event, shall less than forty percent (40%) of the entire labor force be residents of the City of Camden." Ordinance MC 1653 § C(IV)(b), Pet., at A56.

Page 212

The contractor is also obliged to ensure that any subcontractors working on such projects adhere to the same requirement. Ordinance MC 1650 § VIII, Pet., at A46.

The amended ordinance was submitted for approval to the Chief Affirmative Action Officer of the New Jersey Treasury Department in November, 1980. Following brief administrative proceedings, the ordinance was designated as a state-approved affirmative action construction program. Appellant, an association of labor organizations representing private employees in the building and construction trades in various New Jersey counties,4 filed a Notice of Appeal with the Appellate Division of the New Jersey Superior Court challenging the final determination of the Treasury Department in approving the Camden plan. The New Jersey Supreme Court certified the appeal directly to that court to decide all the issues in the case.

Appellant challenged state approval of the resident hiring quota as ultra vires, and as unconstitutional under the Commerce Clause and the Privileges and Immunities Clause of Article IV of the United States Constitution and under the 14th amendment's Equal Protection Clause.5 The New Jersey court sustained the Treasurer's action as consistent both with state law and the federal constitution. Citing Reeves, Inc. v. Stake, 447 U.S. 429, 100 S.Ct. 2271, 65 L.Ed.2d 244 (1980), and Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976), the court held that the resident quota was not subject to challenge under the Commerce Clause because the State was acting as a market participant rather than as a market regulator. 88

Page 213

N.J., at 338-341, 443 A.2d 148. The court also held that the quota did not violate the Privileges and Immunities Clause because it was not aimed primarily at out-of-state residents. "It almost certainly affects more New Jersey residents not living in Camden than it does out-of-state residents. Because the Camden ordinance does not affect 'the States' . . . treatment of each other's residents,' . . . it does not violate any privilege of state citizenship." Id., at 341-342, 443 A.2d 148. Finally, the New Jersey Supreme Court held that the one-year residency requirement did not violate the right to travel protected by the Equal Protection Clause, concluding that only a rational basis is required to uphold a residency requirement for city employment. Id., at 342-343, 443 A.2d 148.

Appellant then filed this appeal raising the same three constitutional challenges to the resident hiring quota. We noted probable jurisdiction. --- U.S. ----, 103 S.Ct. 1270, 75 L.Ed.2d 492 (1983). Since the Council filed its appeal, however, there have been two significant changes in the posture of the case. First, the Court decided White v. Massachusetts Council of Const. Employers, --- U.S. ----, 103 S.Ct. 1042, 75 L.Ed.2d 1 (1983), which held that an executive order of the Mayor of Boston, requiring that at least 50% of all jobs on construction projects funded in whole or part by city funds be filled by bona fide city residents, was immune from scrutiny under the Commerce Clause because Boston was acting as a market participant rather than as a market regulator. In light of the decision in White, appellant has abandoned its Commerce Clause challenge to the Camden ordinance.

Second, in July, 1983 Camden amended its affirmative action plan. The one-year residency requirement was deleted, thereby mooting appellant's equal protection challenge based on that durational requirement. Now, a resident of the city of Camden is defined simply as "any person who resides in the City of Camden." Brief of...

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234 practice notes
  • Warden v. Pataki, No. 97 CIV. 7027 (MBM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 11, 1999
    ...v. Illinois, 83 U.S. (16 Wall.) 130, 138, 21 L.Ed. 442 (1872); see United Bldg. & Constr. Trades Council v. Mayor & Council of Camden, 465 U.S. 208, 217, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984) (citing The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 72, 21 L.Ed. 394 (1872)); see also Schulz......
  • Green v. State , No. 4:06CV1667RWS
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • August 17, 2010
    ...Immunities Clause. E.g. United Bldg. and Constr. Trades Council of Camden County and Vicinity v. Mayor and Council of the City of Camden, 465 U.S. 208, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984). Unlike the Article IV "comity clause," which prohibits unreasonable distinctions in law between citi......
  • Nelson v. Geringer, No. 00-8039.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 3, 2002
    ..."citizenship" and "residency" are "essentially interchangeable." Id. (citing United Bldg. & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208, 216, 104 S.Ct. 1020, 79 L.Ed.2d 249 In Friedman, the Supreme Court applied a two-prong test to determine whether a state restriction on nonres......
  • Board of Supervisors v. Local Agency Formation Com., No. S023805
    • United States
    • United States State Supreme Court (California)
    • November 9, 1992
    ...elsewhere they are mere creatures of the state and exist only at the state's sufferance. (United Building & Constr. Trades v. Mayor (1984) 465 U.S. 208, 215, 104 S.Ct. 1020, 1025, 79 L.Ed.2d 249; Trenton v. New Jersey (1923) 262 U.S. 182, 189-190, 43 S.Ct. 534, 537-538, 67 L.Ed. 937; Cal. C......
  • Request a trial to view additional results
233 cases
  • Warden v. Pataki, No. 97 CIV. 7027 (MBM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 11, 1999
    ...v. Illinois, 83 U.S. (16 Wall.) 130, 138, 21 L.Ed. 442 (1872); see United Bldg. & Constr. Trades Council v. Mayor & Council of Camden, 465 U.S. 208, 217, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984) (citing The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 72, 21 L.Ed. 394 (1872)); see also Schulz......
  • Green v. State , No. 4:06CV1667RWS
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • August 17, 2010
    ...Immunities Clause. E.g. United Bldg. and Constr. Trades Council of Camden County and Vicinity v. Mayor and Council of the City of Camden, 465 U.S. 208, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984). Unlike the Article IV "comity clause," which prohibits unreasonable distinctions in law between citi......
  • Nelson v. Geringer, No. 00-8039.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 3, 2002
    ..."citizenship" and "residency" are "essentially interchangeable." Id. (citing United Bldg. & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208, 216, 104 S.Ct. 1020, 79 L.Ed.2d 249 In Friedman, the Supreme Court applied a two-prong test to determine whether a state restriction on nonres......
  • Board of Supervisors v. Local Agency Formation Com., No. S023805
    • United States
    • United States State Supreme Court (California)
    • November 9, 1992
    ...elsewhere they are mere creatures of the state and exist only at the state's sufferance. (United Building & Constr. Trades v. Mayor (1984) 465 U.S. 208, 215, 104 S.Ct. 1020, 1025, 79 L.Ed.2d 249; Trenton v. New Jersey (1923) 262 U.S. 182, 189-190, 43 S.Ct. 534, 537-538, 67 L.Ed. 937; Cal. C......
  • Request a trial to view additional results
1 books & journal articles
  • The Vertical Dimension of Cooperative Competition Policy
    • United States
    • Antitrust Bulletin Nbr. 48-4, December 2003
    • December 1, 2003
    ...207 U.S. 161, 178 (1907); accordReynolds v. Sims, 377 U.S. 533, 575 (1964); see also United Bldg. &Constr. Trades Council v. CityofCamden, 465 U.S. 208, 215 (1984);CityofTrenton v. New Jersey, 262 U.S. 182, 187 (1923).113 See Reeves, Inc. v. Stake, 447 U.S. 429,436-37(1980); Hughesv, Alexan......

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