Berkeley's Border Wall Blacklists 'Illegal': Berkeley Law Professor

By Hillary Vaughn Politics FOXBusiness

City of Berkeley takes on Trump's border wall

FNC's Hillary Vaughn on the Berkeley, California City Council approving a resolution to divest from any company involved in the construction of President Trump's wall along the U.S. border with Mexico.

The city of Berkeley, California is blacklisting companies and contractors that want to help build President Trump’s border wall.

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Berkeley Mayor Jesse Arreguin tells FOX Business the city has a list of companies that want in on the billion-dollar construction project and plan to use it to ban those who want to bid on new city contracts. “There’s a list that’s already available. We’re going to use that list in our public works competitive bidding process,” he said. Companies that have existing contracts with the city are also in danger of getting cut off. “We need to do the research to fully understand how many companies we are talking about and develop a plan for how to deal with that,” Arreguin added.

Contractor James Flanagan is just one name on the blacklist, telling FOX Business, in a free market, companies shouldn’t fear punishment if they participate in a federal project. “I think that's ridiculous. I think that's a perfect example of tyranny. And we need to stand up and fight for that,” said Flanagan, while noting that tax dollars shouldn’t be spent to boycott local companies in an economy where people are trying to get back to work.  

Despite the tough talk, Berkeley may be breaking the law. “The city of Berkeley should not be discriminating based on political views…I think then you’re going to start getting the courts involved and it’s going to look very skeptically at what this city is doing,” advised John Yoo, a professor at UC Berkeley School of Law. Berkeley can’t block or retaliate against companies when it comes to city contracts, according to Yoo. Political disagreements are “not a valid reason to break a contract,” which, warns Yoo, may violate the Dormant Commerce Clause, which prevents cities from discriminating against outside companies, and there’s no legal exception for political disagreements.

“Not only should the companies sue Berkeley, Berkeley should lose. Berkeley should just pay them,” he adds. 

Berkeley’s mayor, however, disagrees: “I think it’s within the city’s authority as a charter city. We’re supposed to go with the lowest responsible bidder. That gives us authority to decide what is a responsible bidder.” Arreguin says his definition of responsible doesn’t include companies that help the federal government build a wall on the southern border.

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As the fight rages on, Flanagan hopes business owners of all political beliefs stick together. “We should stand up together as business owners in the Bay Area and fight this because it doesn't make any sense and it's not legal,” he said.

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