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

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.

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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.

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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.