Texas Challenges California's Interstate "Travel Ban" in the Supreme Court's Original Jurisdiction

The suit alleges violations of the Dormant Commerce Clause, the Privileges and Immunities Clause, and the Equal Protection Clause

|The Volokh Conspiracy |

Today, Texas Attorney General Ken Paxton filed a suit against California in the Supreme Court's original jurisdiction. He challenged the constitutionality of California's interstate "travel ban." The policy prohibits state-funded travel to certain states that, in the California Attorney General's judgment, fail to provide sufficient protections for LGBT rights. In particular, Texas is included on the list, in part, because of its baby-RFRA, which provides additional protections for the free exercise of religion.

Texas asserts that the "travel ban" violates the Dormant Commerce Clause, the Privileges and Immunities Clause, and the Equal Protection Clause.

Here is a summary of the argument:

13. California's travel ban expressly targets the citizens and businesses of States, like Texas, that "offer[] more protection for religious freedom" than California believes is required by the First Amendment. A.16. The quintessential example cited by the California Legislature is a law that would protect "a wedding photographer who objected to same-sex marriage" on religious grounds from being forced "to provide photographic services for a same-sex wedding." A.11; cf. Masterpiece Cakeshop, 138 S. Ct. at 1723.

14. California's travel ban is grounded in animus towards religion. …

30. As intended, the direct and indirect effects of the travel ban are, respectively, to harm the businesses in the targeted States and to deprive the targeted States of associated tax revenue.

38. Nothing requires California to fund interstate travel. But when California chooses to do so, it must not invidiously discriminate against other States and those States' citizens and businesses. California's travel ban cannot survive because it interferes "both with the maintenance of a national economic union unfettered by state-imposed limitations on interstate commerce and with the autonomy of the individual States within their respective spheres." Healy v. Beer Inst., 491 U.S. 324, 335-36 (1989). Texas thus requests that this Court declare California's travel ban unconstitutional and order California to remove Texas from its travel ban list.

42. In any event, California's travel ban is just the first step in establishing a "comprehensive economic boycott" of States that protect religious freedom—or any constitutional liberty California considers inconsistent with its brand of "forward thinking." See A.39.

The Supreme Court, under modern practice, exercises discretion with respect to original jurisdiction cases. As a textual matter, I am not convinced this practice is correct. Article III, Section 2, provides "[i]n all Cases . . . in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction." This text does not appear to give the Supreme Court the discretion to decline jurisdiction of a case in which "a State shall be [a] Party."

In Nebraska v. Colorado (2016), Justices Thomas and Alito wrote that the Supreme Court could not decline to exercise jurisdiction in a suit between two states. Federal law provides that the Supreme Court has "exclusive" jurisdiction over such suits. They would reconsider this doctrine.

Last year, the Arizona Attorney General, Mark Brnovich, and the de facto Republican Attorney General, Will Consovoy, urged the Supreme Court to reconsider its approach. The state sued Purdue Pharmaceutical and members of the Sackler family. The case concerned the opioid crisis. They argued that original jurisdiction is mandatory, not discretionary. And the Court's precedents stating otherwise should be overruled: "No principle of stare decisis warrants a different result." The Supreme Court denied leave to file the bill of complaint, without recorded dissent.

That case, however, only concerned one state. Texas's complaint, involves one state suing another state. If Justices Kavanaugh and Gorsuch agree with Alito and Thomas, I think there would be four votes to review. And there could even be five votes to address the discretionary nature of the Court's practice. [Update: The so-called "Rule of Four" applies to grants for petitions of certiorari. I think five votes would be needed to grant a motion for leave to file a bill of complaint.]

In any event, Texas's complaint stands on a much stronger footing than did Arizona's. And it presents an important question of national significance: can states begin to erect retaliatory economic sanctions against each other. Texas's complaint states the issue plainly:

The threat to the unity of the States should California expand its policy, or other States emulate that policy, is real and must be addressed . . .

Economic sanctions are tools of war that traditionally justify a belligerent response. California has chosen to use those tools against fellow States in the Union.

The Supreme Court will likely call for the views of the Solicitor General. Texas cites the SG's position in Crosby concerning interstate economic sanctions.

62. In discussing the reach of the Commerce Clause, the United States has argued that "[i]f Massachusetts" used its spending powers to target "companies that do business in Texas, . . . in order to induce a change in the internal policies of Texas, there could be little doubt that Massachusetts would violate the Commerce Clause." Brief for the United States as Amicus Curiae Supporting Affirmance, Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363 (2000) (No. 99-474), 2000 WL 194805, at *27. The United States reasoned further that because "[t]he Interstate Commerce Clause was intended to prevent 'economic Balkanization' and retaliation by one State against another," "[i]t would be inconsistent with those overriding purposes of the Commerce Clause to sustain a state statute that singles out companies because they do business in another State." Ibid.

63. As the United States' argument suggests, the fact that California is using state funds to express its animus towards religion and discriminate against Texas commerce does not alter this conclusion.

If the Supreme Court accepts the original jurisdiction case, the usual approach is to appoint a special master to consider factual disputes. It is not clear here if there are any factual disputes. Texas's claim seems to turn entirely on a question of law. I don't know what value a special master would add. Perhaps a special master could help resolve any standing inquiries. But Texas has gone above and beyond clearing the minimal Article III threshold.

Original jurisdiction grants are rare, but this case has an above-average short. This dispute is far more pressing than the mundane water rights disputes that clog the original jurisdiction docket.

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  1. The classic example of a case justifying exercise of discretionary jurisdiction would be a casus belli. Since an economic boycott represents a form of warfare, it seems a much more pressing matter than a routine border dispute. So I agree discretionary jurisdiction is warranted.

    If discretionary jurisdiction is warranted, the court needn’t decide whether jurisdiction is mandatory, as the result would be the same regardless of the decision.

    Like Justice Thomas, I have questioned the dormant commerce clause, as it seems inappropriate to derive judicial policies from a simple grant of power to Congress. But given the dormant commerce clause precedents, it would seem a good case could be made that allowing states to engage in economic boycotts of each other leads to the sort of Balkanization the dormant commerce clause is supposed to prevent.

    As usual, I am highly skeptical of the animosity argument. In any dispute, support for one side can always be interpreted as animosity towards the other. Where one sees the animosity as lying merely reflects which side one favors. This case seems to provide as good an example of this general rule as any.

  2. Poppycock in regard to your conclusion. Whiskey is for drinking, water is for fighting.

  3. I am not seeing how California’s law (whether or not one agrees with it) is based on animus towards religion. It seems to clearly be based on animus towards discrimination against gays. If California’s law said, “You can’t discriminate against gays if you’re attempting to carve out an exception via Religious Freedom, but you *can* discriminate if for a non-religious reason.” . . . THAT would seem to fit into how Texas is trying to describe it. That, then, would put Texas and it’s state-based baby-RFRA in a very different legal position.

    That’s my off-the-cuff impression, anyway. Who knows if any court would agree with my take. We’ll see, I guess.

    1. To a certain extent, it doesn’t really matter if it’s discrimination against religion or discrimination against gays.

      What’s really the problem is the effective state-level economic warfare going on. THAT is a major issue that could be very problematic. It starts with state level travel. Then it expands to banning contracting with any companies “headquartered” in the opposite state. San Francisco has already gone there as a city.

      What next? It’s a simple step from just headquarters to any goods produced in the bad state. And if you’re going to ban buying goods, perhaps banning the sale of goods could be done too. Arizona ups the ante by banning the sale of water or electricity to Californian run water and power companies?

      No, the SCOTUS should stamp out this economic warfare now, under the Constitution, and declare the laws illegal.

      1. This is the exact reason for the commerce clause: to expressly give Congress the power to stop states from erecting trade barriers against each other.

        1. I tend to agree. The Commerce Clause on its face is a grant of power to Congress, nothing more. If the policy behind the Dormant Commerce Clause is good policy, Congress can simply pass a statute enacting it into law. But it’s for Congress, not the Supreme Court acting on its own, to decide whether it’s good policy or not and whether it ought to have the force of law.

          1. If you read the Commerce Clause in conjunction with the 10th amendment, an argument can be made that the dormant commerce clause is baked into the Constitution.

            On the other hand, I’m not convinced that this case qualifies, as the relevant California law only bars state government funded travel. Californian, even state officials would still be free to travel to the targeted states on their own dime.

  4. Blackman’s argument in this post:

    “As a textual matter, I am not convinced this practice is correct. Article III, Section 2, provides “[i]n all Cases . . . in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction.” This text does not appear to give the Supreme Court the discretion to decline jurisdiction of a case in which “a State shall be [a] Party.”

    Blackman’s argument in a previous post on impeachment:

    “In other words, not all impeachable offenses must lead to articles of impeachment (Several of the law professors who testified suggested that the word “shall” in the Impeachment Clause imposes a duty to impeach whenever the President commits such a high crime or misdemeanor. I do not think the word “shall” had such a mandatory meaning at the time of the framing.)”

    Now I am starting to understand the allure of Originalism and Textualism. They let you reach whatever conclusion you want.

    1. You’re missing the word “Power” here in Article I, Section 2:

      The House of Representatives shall […] shall have the sole Power of Impeachment.

      and here in Article I, Section 3:

      The Senate shall have the sole Power to try all Impeachments.

      Having the power to do something includes the option to decide not to do that. For example, Article I, Section 8 states:

      The Congress shall have Power
      […]
      To borrow Money on the credit of the United States;
      […]
      To establish Post Offices and post Roads;
      […]
      To declare War

      but Congress clearly has no obligation to borrow money if there is no need to or to insure that the United States always has a war declared against some other nation or to establish post Roads or Post Offices.

      Similarly in Article II, Section 2 the Executive is granted the Power

      […]
      to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
      [and…]
      by and with the Advice and Consent of the Senate, to make Treaties

      but clearly the Executive has no obligation to grant reprieves or pardons (who would decide when that power must be exercised?) or to make treaties with any other nation.

      On the other hand, Article III, Section 2 is quite clear that:

      In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

      This does not grant the Supreme Court the “power” to take jurisdiction in such cases, it imposes a requirement on them to do so.

      Of course, the Supreme Court may have some flexibility in determining what “jurisdiction” means (perhaps they have the power to delegate that responsibility and just review the results — after all, they, ultimately, get to decide what anything in the Constitution means).

  5. Wouldn’t a more appropriate suit against California be by a hotel or airline who had bookings cancelled as a result of this law, are a clearly aggrieved party, and the federal court system can work this out through regular processes?

    1. I don’t see a standing problem here. A state, as a sovereign, has a sovereign interest in not being boycotted. And it also has an economic interest. It loses tax revenue. That’s more than enough of a direct interest for standing purposes.

      If one state invaded another, would you say that only property owners whose property was damaged by the invading army would have standing to sue?

  6. I would think no one can argue that this is an act of diplomacy/foreign policy by one state against another. Such travel bans are common by heads of state, such as the Australian PM recalling an ambassador from Indonesia. The sole question is one of clear SCOTUS original jurisdiction: Can state have foreign policies with regards to other states, or is international relations governed by only the federal government.

    Arizona v. United States appears to have settled on the latter in an even broader way.

    1. I think the question of whether one state can boycott another raises different question, subject to different legal principles, from the question of whether a state can boycott a foreign country.

  7. We’ll add on another part. California’s ban is illogical.

    They make state-employee travel to Texas illegal, because despite the dozens of protections for gay people there, there’s a slight exception for faith-based organizations in their adoption criteria.

    But California state employees can still readily travel to Saudi Arabia, Kenya, Indonesia and other countries where it’s illegal to even be gay.

    1. It lacks even a rational basis, its just a temper tantrum.

      1. For America’s bigots every fight is a short-term proposition because in the long run the bigots always lose in America.

        We have experienced successive waves of intolerance and ignorance, often associated with skin color, religion, ethnicity, or perceived economic pressure. Italians, blacks, Jews, Asians, gays, Catholics, Irish, agnostics, women, Hispanics, other Asians, eastern Europeans, atheists, Muslims, other Hispanics . . . in aggregate, most of America has been targeted by the clingers at some point.

        But the bigots lose. And this latest batch seems nothing special, its reliance on the charms, insights, and integrity of Donald Trump notwithstanding. These bigots — conservatives, Republicans, clingers — will be beaten by their betters.

        That is what makes America great.

      2. It lacks even a rational basis, its just a temper tantrum.
        You mean like the Muslim ban?

      3. If only “rational basis” review required even one shred of reason.

    2. Everything the left does is illogical… So no surprise there!

  8. I thought point #62 above was the crux of this entire case. And I personally don’t see how SCOTUS can exercise any discretion here to hear the case. In my mind, they’re stuck: state versus state, they shall have original jurisdiction.

  9. I wish California would just secede.

    1. Your resentment toward your betters, coupled with the experience of getting stomped in the culture war and being forced to comply with the preferences of your betters, has made you cranky, ThePublius.

  10. The clause doesn’t say “exclusive” or “sole” jurisdiction. “Jurisdiction” is just jargon for “power” or “ability”. It has the right to hear the cases, that is it.

    I see no reason why the court cannot just decline to exercise its jurisdiction in the same way it uses “political question” and other doctrines to decline to reach the merits in appellate jurisdiction cases.

  11. I am dubious about the merits. California has not banned any commerce with Texas or anywhere else — private persons are free to travel to or do business with whatever state they lack.

    All it is saying is that it will not expend state funds to promote travel to places whose policies it finds offensive. I find it hard to see how that is either a restriction on commerce or invidious discrimination. A private person can decide where to travel on all kinds of reasons, and so can the State of California in its capacity as consumer of travel services.

    Texas seems to be anticipating this with this argument: “California’s travel ban is just the first step in establishing a “comprehensive economic boycott” of States that protect religious freedom—or any constitutional liberty California considers inconsistent with its brand of “forward thinking.””

    But these steps have not happened yet. When they do, perhaps Texas will have a better case.

    1. “like” not “lack”

    2. Consider the following hypothetical. The president and large shareholder in a major automobile manufacturer engages in anti-semitic and racist conspiracy theories, and promotes anti-semitism and racism. Think Henry Ford. The other car manufacturers don’t.
      A private person is certainly entitled to say, I won’t buy that brand, because of the president’s politics and speech.
      Now a state could not ban or restrict the president’s politics under the First Amendment. It likewise could not ban sales of that brand automobile in the state for the same reason, plus the Commerce Clause.
      But could the state say, when we purchase a fleet of automobiles for the state (e.g., the state police), we are not going to buy that brand and support a racist-antisemite? So we will go with another brand?
      I think it could.

      1. Actually, California has done exactly that to GM, Toyota, and Fiat Chrysler. From CNBC, 11/18/19:

        California said on Monday it will halt all purchases of new vehicles for state government fleets from GM, Toyota and Fiat Chrysler and other automakers backing President Donald Trump in a battle to strip the state of authority to regulate tailpipe emissions.

        Between 2016 and 2018, California purchased $58.6 million in vehicles from General Motors Corp, $55.8 million from Fiat Chrysler Automobiles $10.6 million from Toyota Motor Corp and $9 million from Nissan Motor Co.

        1. Wouldn’t that be illegal of California to stop purchases from companies that have a different political point of view? those companies should pull out any business they have from California and iI think my next Truck will be a Ram now

          1. thats an easy win. refuse to operate under some law or regulation, publicly oppose such law or regulation, and accuse those upholding them of viewpoint discrimination, as opposed to the more obvious. winning strategy right there.

    3. Consider the indirect effects of such a ban. Suppose a group wishes to hold a large conference for a certain type of government employee. California’s ban would bar a significant number of people from attending that might influence at group to not locate the conference in California.

      Further suppose Texas were to institute a counter ban barring travel by any Texas Government employee to any state that prohibits their employees from traveling to Texas, that eliminates s sizable segment from any gathering in Californina since Texas is also a large state.

      1. Surely, the size of the state shouldn’t matter. Is this Constitutional for Delaware and Connecticut to do but not California and Texas?

    4. I am dubious about the merits. California has not banned any commerce with Texas or anywhere else — private persons are free to travel to or do business with whatever state they lack.

      All it is saying is that it will not expend state funds to promote travel to places whose policies it finds offensive. I find it hard to see how that is either a restriction on commerce or invidious discrimination. A private person can decide where to travel on all kinds of reasons, and so can the State of California in its capacity as consumer of travel services.

      I agree that a state deciding how to spend its own funds is not a restriction on commerce. But that argument runs up against Crosby v. National Foreign Trade Council (which I think the Court got wrong).

      1. Not sure that Crosby controls here. The Court there held that the Massachusetts law was pre-empted by a federal law that granted the President discretion to control trade with foreign countries, specifically Burma. There is no equivalent statute here.

        But I would expect Texas to argue that.

        1. I expect it would. And that Crosby was a unanimous decision

    5. California has banned commerce. Travel is an integral part of commerce. And not just by state employees, but grant monies as well.

      Furthermore, San Francisco has expanded this to banning working with any contractor that has a headquarters in Texas. So, beyond travel, now contracting (part of commerce) is being abused.

      If they Federal government did something analogous (IE, banned all non-essential travel by federal employees to a given state, due to the state’s policy preferences), the Feds would almost certainly be sued. And lose.

  12. Brandnic’s experts were talking about this, find there analysis

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