Listen Extended interview with University of Michigan law professor Donald Regan
Feb 23, 2007
Feb 23, 2007
State Rep. Tom Rukavina, DFL-Virginia, is a one-man advertising machine for American products -- he scolds his colleagues for buying suits made in Pakistan; he proudly drives a Buick LeSabre, and he buys local whenever possible.
So it's not much of a surprise that he would author a bill to ban sales of foreign-made American flags in Minnesota.
"I was raised in a strong union household where I was taught to buy American. And what's happening in this country, with losing our manufacturing and base, is frightening to me. If anything should be made in the United States of America, if anything should be sacred to this country and the American worker, it's the American flag," Rukavina says.
The owner of Alamo Flags at the Mall of America bristles at Rukavina's proposal. Jehad Ardah -- a U.S. citizen who emigrated from Jordan -- says if Rukavina's bill passes, it would damage his business.
“If anything should be made in the United States of America ... it's the American flag.”Rep. Tom Rukavina
Ardah sells both American-made and foreign-made U.S. flags. Typically the American flags cost about $15 more. One of the novelties that Rukavina would also ban, an American flag pin made in the U.S., costs between $1.00 and $1.50, triple the cost of the Chinese-made version.
"Why don't we, for example, ban foreign cars to protect American jobs? I heard that Ford and some of the American companies shut down major plants in the United States due the competition they have to live with foreign-made cars," says Ardah. "This is not just the only way to protect our economy and keep the jobs in the United States. There are many other options to go about that."
The Census Bureau says the U.S. imported $5.5 million worth of American flags in 2005 -- most came from China. About $350 million worth of American flags were made in the U.S. that year. That's less than 2 percent of the total value of American flags.
University of Michigan law professor Donald Regan says whatever the implications for the trade balance, Rukavina's bill would face legal hurdles.
"It looks pretty obviously unconstitutional," Regan says.
Regan is a national authority on constitutional law. He says the bill violates the commerce clause, which empowers Congress to regulate foreign commerce. For about 150 years, the courts have held that states can't openly discriminate against interstate and foreign business.
Regan says the bill also has another legal problem.
"The Minnesota statute in question very clearly puts the United States in violation of its legal commitments under the World Trade Organization treaty, and my guess is every free trade agreement we have. This principle of non-discrimination against foreign commerce is the absolute core central principle of any trade agreement," Regan says.
Two years ago, the state of Tennessee passed a similar law but with critical differences that kept it from running afoul of the U.S. Constitution. Rukavina's bill would prohibit all sales in the state of foreign-made American flags and American flag likenesses. Tennessee's law, on the other hand, applies to the state government's purchases only.