BAR FLASHCARDS - CL Part 2_ Federalism

Question 1

Power of States Expressly Limited

Answer 1

Some powers are exclusively federal because the Constitution limits or prohibits the use of the power by states (for example, treaty power, coinage of money).

Question 2

Inherent Federal Powers

Answer 2

Other powers are exclusively federal because the nature of the power itself is such that it can be exercised only by the federal government (for example, declaration of war, federal citizenship).

Question 3

EXCLUSIVE STATE POWERS

Answer 3

All powers not delegated to the federal government are reserved to the states. Note, however, that federal powers are given an expansive interpretation, and thus little state power is exclusive.

Question 4

Preemption

Answer 4

PREEMPTION: The Supremacy Clause of Article VI provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land. Therefore, if there’s a conflict between federal law and state and local law, the federal law will preempt the state law.
1. Express preemption; 2. Implied preemption; 3. (Inter-governmental immunity)

Question 5

1. Express preemption

Answer 5

Federal statute expressly says that state and local govs cant do this thing. If a federal statute explicitly says that federal law is exclusive in a field, there is express preemption.

Question 6

2. Implied preemption

Answer 6

a. Conflict Between State and Federal Law Requirements: If federal and state laws are mutually exclusive, federal law preempts state law
b. State Prevents Achievement of Federal Objective: If state law impedes the achievement of a federal objective, federal law preempts state law.
c. If Congress evidences a clear intent to preempt state law in a certain field, federal law preempts state law

Question 7

federal law preempts state law when…

Answer 7

a. If federal and state laws are mutually exclusive, federal law preempts state law
b. If state law impedes the achievement of a federal objective, federal law preempts state law. Florida NLRB employment benefits.
c. Field preemption. If Congress evidences a clear intent to preempt state law in a certain field, federal law preempts state law even if the state law does not conflict with the federal scheme. (look at legis history, structure of the law). Ex-immigration law, SC has said that congress intended to occupy field.

Question 8

Field Preemption.

Agencies?

Answer 8

If Congress evidences a clear intent to preempt state law in a certain field, the federal law will preempt the state law even if the state law does not conflict with the federal scheme. The courts will look at the federal regulatory scheme to deduce whether Congress intended to preempt the entire field. If federal laws on a topic are comprehensive (for example, immigration) or an agency was created to oversee the area, field preemption may be found.

Question 9

Presumption Against Preemption

Answer 9

In all preemption cases, but especially in cases involving a field traditionally within the power of the states (for example, regulations involving health, safety, or welfare), courts will start with the presumption that the historic state police powers are not to be superseded unless that was the clear and manifest purpose of Congress.

Question 10

States can set stricter standards than fed law…

Answer 10

States can set stricter envir standards than fed law unless congress prohibits it. CA set higher air standards than ACT.

Question 11

Inter-governmental immunity

Answer 11

States may not tax or regulate federal government activity.

Unconstitutional to pay a state tax out of the treasury.

States CANNOT regulate the fed government if they put a SUBSTANTIAL BURDEN on the federal government.

Based on the Supremacy Clause, states cannot interfere with or control the operations of the federal government.

Thus, states can’t regulate the federal government or its agents while performing their federal functions (for example, a state can’t require a member of the armed forces to have a driver’s license to drive military equipment in the state).
Also, states can’t directly tax federal instrumentalities without the consent of Congress, and it’s unconstitutional to pay a state tax out of the federal treasury. However, nondiscriminatory, indirect taxes are permissible if they do not unreasonably burden the federal government (for example, state income tax on federal employees).

Question 12

Paying a state tax out of the treasury

Answer 12

Unconstitutional to pay a state tax out of the treasury

Question 13

Mom and pop store that operates on fed land, state wants to tax it.

Answer 13

Fine, store is privately owned, so taxes arent being paid by fed gov.

Question 14

UPS, on an army base, wholly owned and operated on a fed gov. State wants to tax that store.

Answer 14

Unconstitutioanl, state tax would be paid from fed treasury.

Question 15

Can States apply their pollution standards to the fed gov

Answer 15

No, States cannot apply their pollution standards to the fed gov

Question 16

Federal Taxation and Regulation of State or Local Governments (anti-commandeering principle).

a. Tax or Regulation Applying to Both State and Private Entities

b. Tax or Regulation Applying Only to States

Answer 16

a. Tax or Regulation Applying to Both State and Private Entities—Valid: Congress can subject state and local government activities to regulation or taxation if the law or tax applies to both the public sector and the private sector (for example, minimum wage laws).
b. Tax or Regulation Applying Only to States—Typically Invalid: However, the Tenth Amendment does limit Congress’s power to regulate the states alone by requiring the states to act in a particular way. Congress can’t compel (“commandeer”) the states to enact state laws or to enforce federal laws. Similarly, if Congress passes a tax that does not apply to private businesses but merely taxes state government entities, it’s possible the Court will use the Tenth Amendment to prohibit the tax

Question 17

Fed Tax or Regulation Applying to Both State and Private Entities

Answer 17

Valid: Congress can subject state and local government activities to regulation or taxation if the law or tax applies to both the public sector and the private sector (for example, minimum wage laws).

Question 18

Tax or Regulation Applying Only to States

Answer 18

b. Tax or Regulation Applying Only to States—Typically Invalid: However, the Tenth Amendment does limit Congress’s power to regulate the states alone by requiring the states to act in a particular way. Congress can’t compel (“commandeer”) the states to enact state laws or to enforce federal laws. Similarly, if Congress passes a tax that does not apply to private businesses but merely taxes state government entities, it’s possible the Court will use the Tenth Amendment to prohibit the tax.
- Non-Coercive Spending Conditions May Be Valid: Not all spending conditions are problematic. Non-coercive spending conditions don’t violate the anti- commandeering principle.
- Exception—Civil Rights: Under its Fourteenth Amendment enforcement powers, Congress may restrict states from discriminating in violation of equal protection or depriving rights protected by due process (see infra).

Question 19

Acts found to be invalid under anti-commandeering principle:

Answer 19

1) Requiring states to enact environmental regulations
2) Requiring local law enforcement to conduct background checks for a federal handgun law
3) Banning states from legalizing sports gambling

Question 20

Federal Taxation/Regulation of States—10th Amendment Concerns

Answer 20

1. Tax/regulation applying to both private and state entities—valid
2. Tax/regulation of states as states—generally invalid
   a. Commandeering state officials—cannot require states to regulate their own citizens
   b. Exceptions: Strings on federal grants of money and civil rights

Question 21

Non-Coercive Spending Conditions

Answer 21

Non-Coercive Spending Conditions May Be Valid. Not all spending conditions are problematic. Non-coercive spending conditions don’t violate the anti- commandeering principle.

Question 22

Can Congress incentivize state or local officials to voluntarily assist in administering federal laws (for example, background checks or immigration enforcement) by providing federal dollars for doing so?

Answer 22

Congress can incentivize state or local officials to voluntarily assist in administering federal laws (for example, background checks or immigration enforcement) by providing federal dollars for doing so.