BarbellDreams wrote:Can someone give me a scenario where we would actually need to use the Priveleges and Immunities clause because Equal protection and Due Process wouldn't be enough? Even the Themis example of charging extra for a commercial fishing license seems a bit off to me. Is it basically activity that discriminates against out of staters, but will likely pass a rational basis test (charging more for foreign fisherman) and is not a fundamental right touching due process? And why does Themis say that recreational activity discrimination is fine but commercial activity is not?
My professor from ConLaw in LS said P & I clause is basically non-existent now adays before everything is covered by Due Process or Equal protection, and Jeffries in his lecture said to NEVER pick P & I as the answer, but I actually just came across a Con Law MBE where P & I was the answer.
I think I saw that question (the only one where P&I has been the right answer, IIRC). I thought it was right and still didn't pick it because Jeffries said never pick it. I'm still planning to never pick it, just b/c of the odds.
But basically, I think you're mostly right on the law. The reason commercial activity is different than recreational, I think, is that the pursuit of employment is considered within the classification of "fundamental rights and essential activities." So, I, Montana, can charge you more, Wyoming resident, to come into my streams and fly fish, but I can't charge you more than I do Montana residents to come into my lakes and commercially fish.
Apart from these very, very limited circumstances, P&I never applies. Immediately eliminate it if there's no state discrimination against an out-of-stater, or if there's not a fundamental/economic activity involved. Which is probably 99% of the time.