Supreme Court Says States Are Allowed to Favor Their Own Citizens

A unanimous decision on FOIA rules suggests the justices are in a rather modest mood.
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Art Lien/Reuters

Happy families aren't actually all alike, and they're not even always happy. The U.S. Supreme Court -- which often seems like a case study in family dysfunction -- was briefly happy on Monday, when it announced that states may, if they choose, limit their Freedom of Information Act (FOIA) privileges to their own citizens. Virginia's in-state-only FOIA survived its own lawyer, who put on one of the most inept and infuriating oral arguments of the term, to win 9 votes.

The issue in McBurney v. Young is potentially important to anyone who owns property in another state, or who seeks to do business across state lines. Under this decision, states may, if they wish, make it harder, for example, to obtain property-tax records for those contemplating interstate real estate investments. The Court, however, was at pains to point out that out-of-staters who want those records can still get them by other means. In addition, only a small minority of states limit their FOIA statutes to in-staters. The practical importance of the decision, it suggested, would be small.

The plaintiffs in the case offered the Court two chances to expand constitutional doctrine protecting out-of-state residents. The first, and most sweeping, was the Privileges and Immunities Clause of Article IV, which provides that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." Mark McBurney had lived in Virginia and obtained a divorce and a child-support decree there. But when he moved out of state, state authorities delayed their enforcement of the order, costing him nine months' child support. He asked for the documents surrounding his case, and for all documents explaining the state's policy in support enforcement; because he now lives in Rhode Island, the state rejected his request. He later was able to get most of the information under a different state law. Roger Hurlbert runs a California business that obtains real-estate tax records for private clients. When he sought them from a Virginia county under the state FOIA, however, he was refused. Again, he could gather the information in person, or from the Web, but could not demand the duplicate documents to which Virginians are entitled.

The plaintiffs argued that the exclusion violated their "fundamental privileges" to own and transfer property, use the courts, and "pursue a common calling"--in this case, Hurlbert's business of gathering and selling records. The Court did not say these "privileges" are not protected; it said, instead, that they aren't infringed by the state's law. It reasoned that the purpose of the law was to give Virginians access to information about how their government works, not to discriminate against out-of-staters. Since there was no "protectionist" motive, the court said, there's no violation.

They plaintiffs also claimed they have a "fundamental" privilege of access to public information. The Court replied that nobody--local or out-of-state -- has any such right under the Constitution: "the Constitution does not guarantee the existence of FOIA laws. ... Moreover, no such right was recognized at common law or in the early Republic. Nor is such a sweeping right 'basic to the maintenance or well-being of the Union.'"

Hurlbert also argued that the exclusion violated the mysterious doctrine called the Dormant Commerce Clause, under which judges often void laws that impede the free flow of the national market. The doctrine was pioneered by Chief Justice John Marshall, but recently Justices Antonin Scalia and Clarence Thomas have begun muttering, "What did he know?" Thomas appended a one-paragraph concurrence in McBurney suggesting that the Court ought to just sweep away every dormant-commerce precedent since 1824. The Court simply said that "Virginia's FOIA law neither 'regulates' nor 'burdens' interstate commerce; rather, it merely provides a service to local citizens that would not otherwise be available at all."

A quiet moment is nice; as the term's major decisions descend over the next two months, the fangs will come out again. Nonetheless, something about Virginia's statute, and its arguments, don't sit quite right. Many Americans buy or sell property across states; many people like Mark McBurney are affected by government action in states they no longer live in. To treat them differently does seem like discrimination at its core -- especially since, under the terms of state FOIAs, those requesting information are required to pay the full cost of gathering and copying it, meaning the state isn't burdened by the requests. Even if the purpose of FOIA is largely to allow citizens to access political information, closing off that information to other Americans is a sleazy business. We don't restrict access to state capitols and legislative sessions to in-staters. Political decisions in one state can affect people in many others.

But the McBurney Court didn't quite say that Virginia's law was a good idea. The opinion reads more like benign advice to the kids' table at Thanksgiving dinner: "Play nice, don't fight." Only a few states discriminate in their FOIA laws. The forces that oppose these limitations include a number of business interests, who tend to get listened to when the state legislature meets. A modest theory of judicial review would suggest that this is a prime case to be resolved by the political process. A decision widening the Privileges and Immunities Clause might have set off a raft of challenges to state business-licensing and other laws; resort to the Dormant Commerce Clause might have stirred up the grouchy uncles who don't believe it exists.

So why ruin dinner? Everybody is getting along so well.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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