The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
An excellent column from several days ago by Vik Amar, a leading constitutional law scholar and dean at University of Illinois College of Law:
The Commerce Clause was the framers' first line of defense against corrosive barriers to trade and economic balkanization among the states. Even in the absence of affirmative congressional action, the Commerce Clause generally forbids states from favoring in-state economic actors over out-of-state competitors. When a state explicitly treats in-state businesses differently than out-of-state counterparts, federal courts apply a strong presumption against the law and will uphold it only if it survives a form of strict scrutiny — one that requires the law be necessary to achieve an important (and innocent) purpose.
BOLE's [the New York Board of Law Examiners'] announced policy explicitly treats all in-state law schools differently than all out-of-state law schools. It sends a message to law schools and prospective students, at this crucial time when none of us knows how long COVID will remain a problem, that if you want to take the New York bar exam, students from Columbia will be preferred to students from the University of Chicago, and students from Fordham will receive better treatment than those from Northwestern or Illinois. True, maybe people wouldn't necessarily choose which law school to attend based on this factor alone, but if BOLE can discriminate (openly) a little, then presumably it could do so a lot. And in any event, even a $10 facially discriminatory tax targeting out-of-state entities is invalid unless dictated by a strong government interest.
Note that, while the Commerce Clause constraints are likely relaxed when it comes to stopping the physical spread of disease (e.g., if a state bars travel from out of state during an epidemic), the Board of Law Examiners' plan (for the September bar) seems pretty far removed from any such immediate public health justification.