Is California’s travel ban constitutional?

A travel ban case is back at the U.S. Supreme Court, but this case has nothing to do with immigration. This case is a dispute between two states, and it raises important questions about the power of states to engage in economic warfare with their sister states.

Travel Ban 2.0: Texas v. California

Earlier this month, Texas asked the Supreme Court to strike down a California law banning state employees -- e.g., lawmakers, college professors and coaches -- from traveling on California's dime to Texas and a list of other states. The California law, Assembly Bill 1887, prohibits state-funded travel to any state that is found to have enacted laws authorizing or requiring discrimination "against same-sex couples or their families or on the basis of sexual orientation, gender identity, or gender expression." It's up to the California attorney general to decide which states have done so, and to publish the list of offending states.

Texas landed on this list in 2017 after its Legislature approved a religious-refusal law for adoptions in the state. Texas' H.B. 3859 allows child welfare organizations, including adoption and foster care agencies, to decline to facilitate or provide child welfare services where doing so would conflict with the provider's "sincerely held religious beliefs." If providers invoke the exemption, the new law requires them to refer parents or children to a different agency.

So far California has applied its travel ban to 11 states. But Texas is the first to challenge the ban in court. Texas filed suit directly in the Supreme Court, invoking the court's original and exclusive jurisdiction to hear controversies between two or more states.

Texas claims the California law is an unconstitutional attempt to "coerce other States to increase burdens on religion within their own borders." By banning state employee travel, Texas argues, California aims "to punish the citizens and businesses of the target States to pressure those States 'to change their laws' to provide fewer protections for religious freedom."

Many will view the case as another contest between rights of conscience and antidiscrimination protections. But the lawsuit's core question -- the constitutionality of state-on-state economic sanctions -- could have broader implications. Going forward, states could impose similar sanctions for any number of reasons, even completely nonideological ones. In what follows, we briefly explore the key constitutional arguments for and against such tactics.

The Privileges and Immunities Clause

Article IV, Section 2 of the U.S. Constitution provides that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." This clause -- also known as the comity clause -- has been understood to prevent the states from treating citizens of other states in a discriminatory manner.

The privileges and immunities clause prevents state discrimination against out-of-state residents, but only as to basic rights. These basic rights include constitutional freedoms, as well as the economic right to pursue a livelihood. If such discrimination is shown, courts ask whether the state's discriminatory treatment is justified by a substantial reason. Supreme Court of N.H. v. Piper, 470 U.S. 274, 284 (1985).

The vast majority of cases arising under the privileges and immunities clause involve states imposing discriminatory burdens on out-of-staters' ability to earn a livelihood. The Supreme Court has found a violation when a state excludes out-of-staters from practicing a trade or profession, see id., charges a discriminatory licensing fee, see Mullaney v. Anderson, 342 U.S. 415 (1952), or mandates that in-staters be preferred for employment, see Hichlin v. Orbeck, 437 U.S. 518 (1978).

Texas' claim does not fall neatly within any of these categories. Texas argues that California's travel ban burdens Texans' pursuit of "common callings," such as "hospitality, entertainment, tourism, or dining" by "restricting the ability of out-of-state individuals to participate in commerce." But as far as we can tell, the privileges and immunities clause has never been applied to prevent states from passing laws that reduce commerce in other states. Put another way, the clause protects a Texan's right to do business with Californians in California, not a Texan's right to do business with Californians in Texas. In short, the clause protects outsiders, not insiders.

The Dormant Commerce Clause

The Supreme Court has long recognized that by granting Congress power to "regulate Commerce ... among the several States," the Constitution implicitly prohibits the states from passing laws that unduly restrict interstate commerce. This limit on state power is known as the "dormant commerce clause."

The dormant commerce clause doctrine aims to "curb[ ] state protectionism." Tenn. Wine & Spirits Retailers Ass'n v. Thomas, 139 S. Ct. 2449, 2460 (2019). Under the doctrine, state laws that discriminate against out-of-staters are invalid unless they are tailored to achieve a legitimate government purpose. Id. at 2469.

This is not a typical dormant commerce clause case. In the typical case, the offending state discriminates between out-of-staters and state residents seeking to compete head-to-head within the state. Here, however, California is arguably not engaging in state protectionism. The affected Texan businesses are not seeking to compete in California, and the state is neither placing restrictions on their ability to compete nor giving a leg up to California businesses.

On the other hand, Texas could argue that California does discriminate between in-state and out-of-state businesses because its travel ban economically harms businesses in Texas, which are then at an overall competitive disadvantage to businesses in California.

The more difficult hurdle for Texas may be the "market participant" exception. This exception recognizes that the dormant commerce clause does not restrict a state's ability, when participating directly in the market, "to exercise [its] own independent discretion as to parties with whom [it] will deal." Reeves, Inc. v. Stake, 447 U.S. 429, 439 (1980). Since California's travel ban covers travel only by state employees, California is acting as a market participant and is thus likely immune from a dormant commerce clause challenge.

The Equal Protection Clause

Finally, Texas claims that the California law violates the equal protection clause because it discriminates against Texas citizens and businesses solely because they are Texas citizens and businesses. Because the California law does not target race, national origin, gender, or nonmarital children, the rational basis test applies. Under this test, Texas must show the law is not rationally related to any legitimate government purpose.

This may prove difficult. While Texas argues that California's purpose is to "express[ ] animus towards religion," the California law states that its purpose is to "take action to avoid supporting or financing discrimination against lesbian, gay, bisexual, and transgender people" and "to promote fairness and equality and to combat discrimination." The court has in the past upheld laws under the rational basis test that protect the public safety and public morals, see, e.g., McGowan v. Maryland, 366 U.S. 420 (1961); Ry. Express Agency v. New York, 336 U.S. 106 (1949), and California can argue that its law does just the same.

On the other hand, Texas might argue that California's travel ban advances no governmental interest of the state because it targets perceived discrimination that occurs entirely beyond its borders. Whether states have a legitimate interest in policing activity that takes place purely in other states may be an open question.

Will Other States Follow?

Putting aside the constitutional merits of the case, one can question whether intrastate travel bans and economic sanctions are healthy for our constitutional order. We think they are not.

California's travel ban aims to influence other states to change their laws, but it may in fact lead only to further economic warfare between the states. In fact, some states have already responded in kind.

In 2017, Tennessee's legislature passed a Senate Joint Resolution criticizing "California's attempt to influence public policy" in Tennessee. The resolution warned that "if states such as California persist in banning travel to Tennessee as a punitive action for this body conducting its constitutionally mandated duties as its members see fit, our state leaders should consider strong reciprocal action in banning state-sponsored travel to those misguided states." Sure enough, in 2018 the Tennessee Legislature banned state-funded travel for lawmakers' attendance at a legislative conference in San Diego.

Just last month, Oklahoma followed Tennessee's lead. Oklahoma's governor issued an executive order imposing a "moratorium" on all state-funded travel to California. A press release by the Oklahoma Governor stated that was he "eager to return the gesture."

By turning to the Supreme Court, Texas has chosen not to respond in kind -- at least for now. But it is far from clear whether Texas will prevail on its constitutional claims. If those claims don't succeed, California-style travel bans may become a more common occurrence. 