State buy-American statutes are among the most peculiar of legislative responses to problems of unemployment and low levels of economic growth in the United States. Designed to decrease unemployment among American workers by promoting the development of American industry, the statutes typically require that purchasers of goods to be used in state-subsidized projects prefer products manufactured in America over those made in foreign countries, often regardless of price or quality.' State buy-American statutes are presently in effect in a number of states, despite criticism that they constitute devices of economic protectionism for domestic goods and barriers to a unified United States foreign economic policy...
The recent New Jersey Supreme Court decision in K.S.B. Technical Sales Corp. v. North Jersey District Water Supply Commission raises anew the difficult issues concerning the constitutionality of state buy-American statutes. The New Jersey statutes governing public works challenged in K.S.B. provide in relevant part:
"[N]otwithstanding any inconsistent provision of any law, and unless the head of the department, or other public officer charged with the duty by law, shall determine it to be inconsistent with the public interest, or the cost to be unreasonable, only domestic materials shall be acquired or used for any public work.'"
In upholding this statute, the K.S.B. court rejected a three-pronged constitutional challenge alleging that the statute (1) violated the "dormant" commerce clause of the United States Constitution; (2) was preempted by the General Agreement on Tariffs and Trade; and (3) constituted an impermissible state intrusion into the field of foreign affairs. This Note will consider these constitutional challenges to state buy-American statutes, concluding that such laws,in light of both early and recent Supreme Court decisions, are indeed valid under the Constitution. The Note neither condemns nor favors the policy considerations underlying state buy-American statutes, but only suggests that those seeking removal of restrictions on state government purchases direct their efforts to the legislative rather than the judicial process.
George C. Lamb, III,
State Buy-American Laws - Is There a Judicial Solution?,
31 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol31/iss6/2