4) Federalism

Question 1

What is federalism?

Answer 1

The limits placed on state/local governments because there is federal government and 49 other states to get along with.

Question 2

What is express pre-emption?

Answer 2

1. When Congress has authority to act, can state its power is exclusive in a field per Supremacy Clause
2. If federal statute says exclusive in field, state and local laws are preempted.

Question 3

What is implied pre-emption?

Answer 3

1. If not possible to simultaneously comply with federal and state laws, state law preempted
2. If state law impedes achievement of federal objective, state law preempted
3. If Congress evidences clear intent to preempt state law, state law preempted

Question 4

Can states tax federal government?

Answer 4

States may not charge state tax to be paid out of federal treasury for federal government activity

Question 5

What is the dormant commerce clause?

Answer 5

State/local laws unconstitutional if undue burden on interstate commerce

Question 6

What is the privileges and immunities clause of Article IV?

Answer 6

No state or municipality may deny citizens of other states the privileges and immunities it affords its own citizens without substantial justification

Question 7

Whats the privileges and immunities clause of 14th amendment used for?

Answer 7

Used to preserve person’s right to travel from one state to another

Question 8

What if law does not discriminate against out-of-staters?

Answer 8

1. P&I clause of Art. IV does not apply

2. If law burdens interstate commerce, violates dormant commerce clause if burden outweighs benefits

Question 9

What if law does discriminate against out-of-staters and burdens interstate commerce?

Answer 9

Violates dormant commerce clause unless necessary to achieve important government purpose.

Question 10

What must the government show to show that a violation is necessary to achieve an important government purpose?

Answer 10

Government must show no less discriminating alternative can achieve its goal

(a) unless Congress approves
(b) except state/local government may prefer its own citizens in receiving benefits from government programs (market participant exception) i.e. State uni discounts

Question 11

What if the law discriminates against out of staters with regard to ability to earn a living?

Answer 11

Violates P&I clause of Art. IV unless necessary to achieve important government purpose

EXCEPT: corporations and aliens cannot use or invoke P&I clause

Question 12

Can a state use tax system to help in state businesses?

Answer 12

No

Question 13

What activities can a state tax?

Answer 13

May only tax activities if substantial nexus between product or activity taxed and state

State taxation of interstate businesses must be fairly apportioned—must generally avoid double tax

Question 14

What is full faith and credit?

Answer 14

1. Courts in one state must give full faith and credit—give force to all judgments of courts in other states—so long as:
   (a) court that rendered judgment had jurisdiction over parties and subject matter
   (b) judgment was on the merits
   (c) judgment was final