« Weird procedure and Palin v. New York Times (Updated Several Times) | Main | Solving the Procedural Puzzles of the Texas Heartbeat Act, Part I »

Wednesday, February 16, 2022

California's Ban on State-Funded Travel to Some States

One topic that I like discussing with students in Constitutional Law is AB 1887, which is the California that prohibits state-funded travel to states with LGBTQ policies that California finds obnoxious. There are 18 states on the list. Texas, which is one of these states, tried to bring a challenge in the Supreme Court's original jurisdiction last year but the petition was dismissed. I know of no challenges currently pending to AB 1887, though that may be because there just hasn't been much travel at all in the past two years.

If California had a regulatory statute that created two classes of sister states, such a law would almost certainly be unconstitutional under the Dormant Commerce Clause (or perhaps on other grounds). But AB 1887 is not about regulation--it's about spending money. A state has broader latitude about spending as opposed to regulation, though not without limit. Assuming you could find someone with standing to bring a constitutional challenge, is this statute valid or invalid discrimination?

I'm not sure. Saying that California must spend its money equally among the other states is a broad proposition that seems unworkable. On the other hand, if every state did something like what California does for its own policy of choice, that would amount to a lot of tit-for-tat retaliation that could be unduly burdensome for interstate commerce. This might become even more of a problem once we have states where abortion is broadly available and others where abortion is a crime. Having a national convention of state officials might become impossible, unless some simply attend on Zoom and thus spend no money at all. 

Posted by Gerard Magliocca on February 16, 2022 at 09:22 PM | Permalink


The comments to this entry are closed.