California politicians attempting to stop Donald Trump’s border wall brought the fight to San Diego on Thursday, but the business bans they are proposing could lead to legal challenges.

State Sen. Ricardo Lara, D-Bell Gardens, and Assemblywoman Lorena Gonzalez Fletcher, D-San Diego, held a press conference with supporters on the steps of the Edward J. Schwartz Federal Building in downtown San Diego to promote legislation they’ve crafted to punish businesses that work on the border wall.

Lara has introduced Senate Bill 30 that would prevent the state from doing business with any company — or person — that works on the border wall. Gonzalez Fletcher has co-sponsored a bill, called the Resist the Wall Act, that would require California’s pension funds to divest from companies that work on the wall between the U.S. and Mexico.

Roughly 460 companies replied to requests for proposals to build the wall, including 23 in San Diego County. A decision is expected by June 1, and prototype construction in Otay Mesa is expected to start that month.


Seth Kaplowitz, an attorney and lecturer on business law at San Diego State University, said Lara’s legislation is possibly unconstitutional.

He said the proposed law could violate the U.S. Constitution’s equal protection clause, which prevents states from depriving citizens of equal protection under the law. California may need to pass the so-called rational basis test for its argument.

“The rational for this law is, basically, a protest,” Kaplowitz said. “The (California) government will have to show there is some type of harm that the state will suffer if this wall is erected as it’s proposed. I don’t know if they can meet that burden or not.”

RELATED: Preview Trump border wall proposals


Lara has argued a wall would hurt California’s economy because of money Mexican shoppers spend here and goods the state exports to Mexico, but Kaplowitz said the legislation will likely end up being challenged in court.

At Thursday’s press conference, Lara argued the proposed law was legal and reviewed before the bill was proposed.

“It’s well within our constitutional rights, under state’s rights, to determine who the state enters into contracts with,” he said.

Phoenix-based constitutional lawyer and historian Robert McWhirter said a case also could be made that Lara’s proposed law would violate the supremacy clause, which makes the Constitution the law of the land, and the commerce clause, which prohibits states from passing laws that burden interstate commerce.


“In other words, when the federal government makes a policy, a state can’t go directly against that,” he said. “A state can’t retaliate against companies. You really can’t have a state impinging on free commerce.”

State Sen. Ricardo Lara, D-Bell Gardens, and Assemblywoman Lorena Fletcher, D-San Diego, held a press conference Thursday on the steps of the Edward J. Schwartz Federal Building in downtown San Diego. (Phillip Molnar/San Diego Union-Tribune)

As far as divesting, Kaplowitz said that proposed law might have a better chance against a legal challenge, noting its use to protest various causes over the years. The California Assembly voted in 1986 to dispose of stocks tied to companies that do business with South Africa because of its apartheid policies. The University of California system sold off its endowment and pension fund holdings in coal and oil sands companies in 2015 because of pollution concerns.

At the press conference downtown, individuals opposing the wall celebrated both measures as a step in the right direction.


“It seems like building a wall would be a waste of money,” said Andrew McKercher, assistant business manager for the International Brotherhood of Electrical Workers Local 659. “In San Diego, the only time you hear about people coming over it is from a tunnel underground. You can build as many fences as you want.”

The proximity to the proposed border wall was a hot topic. If the project gets funded, the U.S. Customs and Border Protection say wall prototypes will be built in Otay Mesa. Also, Trump is asking Congress for nearly $1 billion to begin construction for 14 miles of fencing in San Diego County, as well as an additional 14 miles for replacement work.

RELATED: First lawsuit filed to block Trump border wall that would start in San Diego

While Congress has yet to authorize funds, there are several estimates of what it might cost.


An internal report by the Department of Homeland Security said the wall would cost about $21.6 billion to build, not including maintenance. Senate Democrats said Tuesday that it would cost $70 billion to build, according to the Democratic staff of the Homeland Security and Governmental Affairs Committee, The New York Times reported.

Gonzalez Fletcher, who co-sponsored the divestment bill, said the president created the wall as a linchpin of his campaign to create a wedge between immigrants and non-immigrants.

“We knew why Trump was using this whole symbolic, stupid wall metaphor,” she said, “and now he is going to go ahead and waste taxpayer dollars to say he did it. We know it is never going to be completed.”

Trump has said the wall is needed to stop illegal immigration into the United States and said during the campaign that Mexico was sending over people who “have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”


Some companies that have bid on the wall have experienced backlash. R.E. Staite Engineering of Barrio Logan, was the subject of a small protest a few weeks ago. One sign placed outside the business said, “This company is selling its soul.” The Washington Post reported several Latino business owners have received death threats since it became public they were bidding on the wall.

Even if people disagree with the wall, the legislation proposed by the two politicians might not be good for business. Manpower CEO Phil Blair said he feared when different groups get in power in California they could, on a whim, go after whole industries for political reasons using similar legislation.

“I mean, where does it stop?“ he said. “It’s a huge precedent we need to avoid.”

Lara said he was targeting a specific group of businesses and it would be wrong to paint the legislation with a broad brush.


“Would we support companies that would build internment camps? Would we support construction companies that build segregated schools?” he said. “This is the type of issue that we think in California that merits that review.”

Senate Bill 30 will be heard by the Senate Committee on Governmental Organization on Tuesday. Assembly Bill 946 will be heard in the Assembly Committee on Public Employees, Retirement & Social Security on May 3.


Business

phillip.molnar@sduniontribune.com (619) 293-1891 Twitter: @phillipmolnar


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