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U.S. Supreme Court

White v. Mass. Council of Constr. Employers, 460 U.S. 204 (1983)

White v. Massachusetts Council of Construction Employers, Inc.

No. 81-1003

Argued November 1, 1982

Decided February 28, 1983

460 U.S. 204


Petitioner Mayor of Boston, Mass., issued an executive order requiring all construction projects funded in whole or in part by city funds or funds that the city had authority to administer to be performed by a workforce at least half of which are bona fide residents of the city. The Massachusetts Supreme Judicial Court held the order unconstitutional under the Commerce Clause.

Held: The Commerce Clause does not prevent the city from giving effect to the Mayor's executive order. Pp. 460 U. S. 206-215.

(a) When a state or local government enters the market as a participant, it is not subject to the restraints of the Commerce Clause. Hughes v. Alexandria Scrap Corp., 426 U. S. 794; Reeves, Inc. v. Stake, 447 U. S. 429. In a case like the instant one, the only inquiry is whether the challenged program constituted direct state or local participation in the market. Pp. 460 U. S. 206-208.

(b) Insofar as the city expended only its own funds in entering into construction contracts for public projects, it was a market participant, and entitled to be treated as such under the rule of Alexandria Scrap Corp. Even if implementation of the Mayor's order might have a significant impact on specialized construction firms employing out-of-state residents, this is not relevant to the inquiry of whether the city is participating in the marketplace when it provides funds for construction. Impact on out-of-state residents figures in the equation only after it is decided that the city is regulating the market, rather than participating in it, for only in the former case need it be determined whether any burden on interstate commerce is permitted by the Commerce Clause. And, even if the Mayor's order is characterized as sweeping too broadly, such characterization is relevant only if the Commerce Clause imposes restraints on the city's activity, and is no help in deciding whether those restraints apply. Pp. 460 U. S. 209-211.

(c) Insofar as the Mayor's order was applied to projects funded in part with funds obtained from certain federal programs, the order was affirmatively sanctioned by the pertinent regulations of those programs. chanrobles.com-red

Page 460 U. S. 205

Where the restrictions imposed by the city on construction projects financed in part by federal funds are directed by Congress, then no dormant Commerce Clause issue is presented. Pp. 460 U. S. 212-213.

384 Mass. 466, 425 N.E.2d 346, reversed and remanded.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER C.J.,and BRENNAN, MARSHALL, POWELL, STEVENS, and O'CONNOR, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which WHITE, J., joined, post, p. 460 U. S. 215.


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