Con. Law Flashcards
Article III
Federal judicial power extends to cases involving: (1) Interpretation of the Constitution, federal laws, treaties, and admiralty and maritime laws; and (2) Disputes between states, states and foreign citizens, and citizens of diverse citizenship.
Power of Judicial Review
The Supreme Court may review the constitutionality of acts of other branches of the federal government. It may also review state acts pursuant to the Supremacy Clause.
Federal Courts
Only Article III courts (i.e. courts established by Congress pursuant to Article III) are the subject of this outline. Congres has power to delineate the original and appellate jurisdiction of these courts but is bound by the standards set forth in Article III as to subject matter and party jurisdiction and the requirements of a case or controversy. Congress can also create courts under Article I (e.g. tax courts). Judges in those courts do not have life tenure as do Article III judges, and Congress may not assign to Article I courts jurisdiction over cases that have traditionally been tried in Article III courts.
Original Jurisdiction
The Supreme Court has original jurisdiction in all cases affecting ambassadors, public ministers, consuls, and those in which a state is a party, but Congress has given concurrent jurisdiction to lower federal courts in all cases except those between states.
Appellate Jurisdiction
The Supreme Court has appellate jurisdiction in all cases to which federal power extends, subject to congressional exceptions and regulation. Cases can come to the court by on of two ways: (1) writ of certiorari, or (2) appeal.
Writ of Certiorari
In most cases, the Supreme Court has complete discretion to hear cases that come to it by certiorari. The cases that come by certiorari are: (1) Cases from state courts where (i) the constitutionality of a federal statute, federal treaty, or state statute is in issue, or (ii) a state statute allegedly violates federal law. (2) All cases from federal courts of appeals.
Appeal
In rare cases, the Supreme Court must hear cases that come to it by appeal. These cases are confined to decisions by three-judge federal district court panels that grant or deny injunctive relief.
Justiciability
Whether is case is justiciable (i.e. a federal court may address it) depends on whether there is a case or controversy. In addition to the case or controversy requirement, there are other limitations on federal court jurisdiction.
No Advisory Opinion
There must be specific present harm or threat of specific future harm. Federal courts can hear actions for declaratory rlief if there is an actual dispute between parties having adverse legal interests. Complainants must show that they have engaged in (or wish to engage in) specific conduct and that the challenged action poses a real and immediate danger to their interests. However, the federal courts will not determine the constitutionality of a statute if it has never been enforced and there is no real fear that it ever will be.
Ripeness
A plaintiff is not entitled to review of a statute or regulation before its enforcement (i.e. may not obtain a declaratory judgment) unless the plaintiff will suffer some harm or immediate threat of harm. [Ripeness bars consideration of claims before they have developed; mootness bars their consideration after they have been resolved.]
Mootness
A real controversy must exist at all stages of review. If the matter has already been resolved, the case will be dismissed as moot. Exception. Controversies capable of repetition, but evading review, are not moot. Examples: Issues concerning events of short duration or a defendant who voluntarily stop the offending practice but is free to resume. Class Actions. A class representative may continue to pursue a class action after the representative_s controversy has become moot if claims of other class members are still viable.
Standing
A person must have a concrete stake in the outcome of a case. The components of standing are: (1) Injury. Plaintiff must show that she has been or will be directly and personally injured by the allegedly unlawful government action, which affects her rights under the Constitution or federal law. The injury need not be economic. (2) Causation. There must be a causal connection between the injury and the conduct complained of. (3) Redressability. A decision in the litigant_s favor must be capable of eliminating her grievance.
Congressional Conferral of Standing
Congress has no power to eliminate the case or controversy requirement and, thus, cannot grant standing to someone not having an injury. However, a federal statute may create new interests, injury to which may be sufficient for standing.
Standing to Enforce Government Statutes
A plaintiff may have standing to enforce a federal statute if she is within the zone of interests Congress meant to protect.
Standing to Assert Rights of Others
Generally, one cannot assert the constitutional rights of others to obtain standing, but a claimant with standing in her own right may also assert the rights of a third party if: (a) it is difficult for the third party to assert her own rights; or (b) a special relationship exists between the claimant and the third party.
Standing of Organizations
An organization has standing if (i) there is an injury in fact to members that gives them a right to sue on their own behalf, (ii) the injury is related to the organization_s purpose, and (iii) individual member participation in the lawsuit is not required.
No Citizenship Standing
People have no standing merely as citizens to claim the government action violates federal law or the Constitution. The injury is too generalized. Compare: a person may have standing to allege that federal action violates the tenth amendment by interfering with powers reserved to the states, as long as the person has a redressable injury in fact.
Taxpayer Standing Requisites
A taxpayer has standing to litigate her tax bill, but a taxpayer generally has no standing to challenge government expenditures, because the taxpayer_s interest is too remote. Similarly, a taxpayer as such has no standing to challenge tax credits. Exception: Suits attacking congressional spending measures on First Amendment Establishment Clause grounds. [For a taxpayer to have standing, Congress_s spending power must be involved. Thus, for example, there is no standing to challenge federal government grants of surplus property to religious groups or expenditures of general executive branch funds.]
Adequate and Independent State Grounds
The Supreme Court will not exercise jurisdiction if the state court judgment is based on adequate and independent state law grounds _ even if federal issues are involved. State law grounds are adequate if they are fully dispositive of the case. They are independent if the decision is not based on federal case interpretations of identical federal provisions. When the state court has not clearly indicated that its decision rests on state law, the Supreme Court may hear the case.
Abstention
Unsettled Question of State Law. A federal court will temporarily abstain from resolving a constitutional claim when the disposition rests on an unsettled question of law. Pending State Proceedings. Federal courts will not enjoin pending state criminal proceedings (and in some cases pending state administrative or civil proceedings involving an important state interest), except in cases of proven harassment or prosecutions taken in bad faith.
Political Questions
Political questions will not be decided. These are issues (i) constitutionally committed to another branch of government or (ii) inherently incapable of judicial resolution. Examples: Challenges based on the Republican Form of Government Clause of Article IV; challenges to congressional procedures for ratifying constitutional amendments; whether a person elected to Congress meets the age, residency, or vote requirements; and the president_s conduct of foreign policy. Non-Examples: Legislative apportionment, arbitrary exclusion of a congressional delegate, and production of presidential papers and communications.
Eleventh Amendment Limits on Federal Courts
The Eleventh Amendment Prohibits federal courts from hearing a private party_s or foreign government_s claim against a state government. What is Barred? The prohibition extends to actions in which the state is named as a party or in which the state will have to pay retroactive damages. Similarly, the Supreme Court has held that the doctrine of sovereign immunity bars suits against a state government in state court, even on federal claims, unless the defendant state consents. What is Not Barred? The prohibition does not extend to actions against local governments, actions by the United States or other states, or proceedings in federal bankruptcy courts.
Exceptions to Eleventh Amendment Limitations
(1) Certain Actions Against State Officers. The following actions can be brought against state officer in federal court despite the Eleventh Amendment: (i) actions to enjoin an officer from future conduct that violates the Constitution or federal law, even if this will require prospective payment form the state, and (ii) actions for damage against an officer personally. (2) Congress can remove Eleventh Amendment immunity as to actions created under the Fourteenth Amendment, but it must be unmistakably clear that Congress intended to remove the immunity.
Necessary and Proper Power
Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the federal government. [The Necessary and Proper Clause standing alone cannot support federal law. It must work in conjunction with another federal power. Thus, an answer choice that states that a law is supported by the Necessary and Proper Clause (or is valid under Congress_s power to enact legislation necessary and proper) will be incorrect unless another federal power is linked to it in the question.
Taxing Power
Congress has the power to tax, and most taxes will be upheld if they bear some reasonable relationship to revenue production or if Congress has the power to regulate the activity taxed. However, neither Congress nor the states may tax exports to foreign countries.
Spending Power
Congress may spend to provide for the common defense and general welfare. Spending may be for any public purpose. [The federal government can tax and spend for the general welfare; it cannot directly legislate for it. Thus, nonspending regulations cannot be supported by the General Welfare Clause. Also recall that although the power to spend for the general welfare is broad (any public purpose), it is still limited by the bill of Rights and other constitutional provisions.]
Commerce Power
Congress has the exclusive power to regulate all foreign and interstate commerce. To be within Congress_s power under the Commerce Clause, a federal law regulating interstate commerce must either: (i) Regulate the channels of interstate commerce; (ii) Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce; or (iii) Regulate activities that have a substantial effect on interstate commerce.
Intrastate Activity
When Congress attempts to regulate intrastate activity under the third prong, above, the Court will uphold the regulation if it is of economic or commercial activity and the court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce. However, if the regulated intrastate activity is noncommercial and noneconomic, it cannot be regulated under the Commerce Clause unless Congress can factually show a substantive economic effect on interstate commerce.
War and Related Powers
The constitution gives Congress power to declare war, raise and support armies, and provide for and maintain a navy.
Economic Regulation
Economic regulation during war and in the postwar period to remedy wartime disruptions has been upheld.
Military Courts and Tribunals
Congress is authorized to make rules for the government and regulation of armed forces. (1) Judicial Review. Regular federal (or state) courts have no general power to review court-martial proceedings. (2) Enemy Civilians and Soldiers. Enemy civilians and soldiers may be tried by military courts. However, Congress has no power to deny habeas corpus review to all aliens detained as enemy combatants absent a meaningful substitute. (3) American Soldiers. Military courts have jurisdiction over all offenses committed by person who are members of the armed services both at the time of the offense and when charged. (4) American Civilians. American civilians may be tried by military courts under martial law only if actual warfare forces the federal courts to shut down.
Investigatory Power
The power of Congress to investigate is implied. Investigation must be expressly or impliedly authorized by the appropriate congressional house.
Property Power
Congress has the power to dispose of and make rules for territories and other properties of the United States. While there is no express limitation on Congress_s power to dispose of property, federal takings (eminent domain) must be for the purpose of effectuating an enumerated power under some other provision of the constitution.
No Federal Police Power
Congress has no general police power. However, Congress has police power type powers over the District of Columbia, federal lands, military bases, and Indian reservations (based on its power over the capital and its property power).
Bankruptcy Power
Congress_s power to establish uniform rules for bankruptcy is nonexclusive; state may legislate in the field as long as their laws do not conflict with federal law.
Postal Power
The postal power is exclusive. Under the postal power, Congress may validly classify and place reasonable restrictions on use of the mails, but may not deprive any citizen or group of citizens of the general mail privilege.
Power Over Citizenship
Congress may establish uniform rules of naturalization. This gives Congress plenary power over aliens. Exclusion of Aliens. Aliens have no right to enter the United States and can be refused entry summarily because of their political beliefs. However, resident aliens are entitled to notice and a hearing before they can be deported. Naturalization and Denaturalization. Congress has exclusive power over naturalization and denaturalization. However, Congress may not take away the citizenship of any citizen _ native-born or naturalized _ without his consent.
Admiralty Power
Congress_s admiralty power is plenary and exclusive unless Congress leaves maritime matters to state jurisdiction.
Power to Coin Money and Fix Weights and Measures
Congress has the power to coin money and fix standards for weights and measures.
Patent/Copyright Power
Congress has the power to control the issuance of patents and copyrights.
Delegation of Legislative Power
Legislative power may generally be delegated to the executive or judicial branch as long as intelligible standards are set and the power is not uniquely confined to Congress. Note: Congress may not appoint members of a body with administrative or enforcement powers. [Although you should know that a valid delegation of legislative power requires intelligible standards for the delegate to follow, in applying that rule almost anything will pass for an intelligible standard, and thus no legislative delegation has been invalidated since 1936.]
Speech and Debate Clause _ Immunity for Federal Legislators
Conduct that occurs in the regular course of the federal legislative process and the motivation behind that conduct are immune from prosecution. Note: Immunity does not cover bribes, speeches outside Congress, or the republication in a press release or newsletter of a defamatory statement originally made in Congress.
Congressional Veto of Executive Actions Invalid
A legislative veto is an attempt by Congress to overturn an executive agency action without bicameralism (i.e. passage by both houses of Congress) or presentment (i.e. giving the bill to the President for his signature or veto). Legislative vetoes of executive actions are invalid.
Appointment Powers
The executive appoints all ambassadors, other public ministers and consuls, justices of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for, with advice and consent of the Senate. Congress, however, may vest the appointment of inferior officers in the President alone, the courts, or the heads of departments. Congress itself may not appoint members of a body with administrative or enforcement powers.
Removal of Appointees
(1) By President. The President can remove high level, purely executive officers (e.g. Cabinet members) at will, without any interference by Congress. However, Congress may provide statutory limitations (e.g. removal only for good cause) on the President_s power to remove all other executive appointees. (2) By Congress. Congress may remove executive officers only through the impeachment process.
Pardons
The president may grant pardons for all federal offenses but not for impeachment or civil contempt. The pardon power cannot be limited by Congress.
Veto Power
If the President disapproves (vetoes) an act of Congress, the act may still become law if the veto is overridden by a two-thirds vote of each house. Pocket Veto. The President has 10 days to exercise the veto power. If he fails to act within that time, the bill is automatically vetoed if Congress is not in session. If Congress is in session, the bill become law. Line Item Veto Unconstitutional. The veto power allows the President only to approve or reject a bill in toto; he cannot cancel part and approve other parts.
Power as Chief Executive
The President_ powers over internal affairs are unsettled. Clearly the president has some power to direct subordinate executive officers, and there is a long history of Presidents issuing executive orders.
Overview of Power as Chief Executive
(i) If the President acts with the express or implied authority of Congress, his authority is at its maximum and his actions are likely valid; (ii) If the President acts where Congress is silent, his action will be upheld unless it usurps the power of another governmental branch or prevents another branch from carrying out its tasks; and (iii) If the President acts against the express will of Congress, he has little authority, and his action is likely invalid.
No Power to Impound and the Take Care Clause
It follows that the President has not power to refuse to spend appropriated funds when Congress has expressly mandated that they be spent. Some authorities base this result on Article II, Section 3, Clause 4 _ the Take Care Clause _ which provides that the President shall take care that the laws be faithfully executed.
War
The President has no power to declare war but may act militarily in actual hostilities against the United States without a congressional declaration of war. However, Congress, under its power to enact a military appropriation every two years, may limit the President.
Foreign Relations
The president has paramount power to represent the United States in day-to-day foreign relations.
Treaty Power
The President has the power to enter into treaties with the consent of two-thirds of the Senate.
Supreme Law
Like other federal law, treaties are the supreme law of the land if they are self executing (i.e. effective without any implementation by Congress). State laws that conflict with a self-executing treaty are invalid. Note that the President generally does not have any independent power to issue a memorandum ordering compliance with a treaty that is not self-executing.
Conflict with Federal Laws
A conflict between a congressional act a valid treaty is resolved by order of adoption: the last in time prevails.
Conflict with Constitution
Treaties are not co-equal with the Constitution; a treaty may not be inconsistent with the Constitution.
Executive Agreements
Executive agreements are signed by the President and the head of a foreign country. They can be used for any purpose that treaties can be used for. They do not required the consent of the Senate. Conflict with State Laws. If a state law conflicts with an executive agreement, the agreement prevails. Conflict with Federal Laws. If an executive agreement conflicts with a federal law, the federal law prevails over the agreement.
Executive Privilege
The President has a privilege to keep certain communications secret. National security secrets are given great deference by the courts. Exception: In criminal proceedings, presidential communiqu_s will be available to the prosecution where a need for such information is demonstrated.
Executive Immunity
The President has absolute immunity from civil damages based on any action he took within his official responsibilities, but there is no immunity for acts that allegedly occurred before taking office. If presidential aides have exercised discretionary authority in a sensitive area, they may share in the immunity for suits brought concerning the area.
Impeachment
The President, Vice President, and all civil officers of the United States are subject to impeachment (the bringing of charges). Grounds include treason, bribery, high crimes, and misdemeanors. A majority vote in the House is necessary to invoke the charges of impeachment, and a two-thirds vote in the Senate is necessary to convict and remove from office.
Power of States Expressly Limited
Some powers are exclusively federal because the Constitution limits or prohibits the use of the power by states.
Inherent Federal Powers
Other powers are exclusively federal because the nature of the power itself is such that it can be exercised only by the federal government.
Exclusive State Powers
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.
Conflict Between State and Federal Laws - Who prevails?
If a state law conflicts with federal law, the state law will be invalidated (Supremacy Clause)
If a State Prevents Achievement of Federal Objective, what will happen?
If a state or local law prevents achievement of a federal objective, it will be invalidated. This is true even if the state law was enacted for some valid purpose and not to frustrate federal law (e.g., state law providing for suspension of driver’s license of persons who fail to pay off an auto accident case judgment, regardless of the person’s discharge in bankruptcy, is invalid).
What is Preemption?
A valid federal statute or regulation may expressly or impliedly
“occupy” the entire field, thus precluding any state or local regulation even if the state or local regulation is nonconflicting. Express preemption clauses will be narrowly construed. When a federal law does not expressly preempt state law, the courts will try to deduce Congress’s intent, but especially in cases involving a field traditional within the power of the states (e.g. regulations involving health, safety, and 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.
Absence of Federal and State Powers
Some powers are denied to both Congress and the states. For example, the qualifications for serving in Congress are set by the Constitution and cannot be altered by Congress or the states.
Interstate Compact Clause
The Interstate Compact Clause concerns agreements between states. If the agreement increases the states’ power at the expense of federal power, congressional approval is required.
Full Faith and Credit Clause
By virtue of the Full Faith and Credit Clause, if a judgment is entitled to full faith and credit, it must be recognized in its sister states. This Clause applies only if: (i) the court that rendered the judgment had jurisdiction over the parties and the subject matter; (ii) the judgment was on the merits; and (iii) the judgment is final.
Suits by the United States Against a State
The United States may sue a state without its consent.
Suits by a State Against the United States
Public policy forbids a state from suing the United States without its consent. Congress can pass legislation that permits the United States to be sued by a state in given situations.
Federal Officer as Defendant
(1) Limitation. A suit against a federal officer is deemed to be brought against the United States itself if the judgment sought would be satisfied out of the public treasury or would interfere with public administration and therefor is not permitted. (2) Specific Relief Against Officer. Specific relief against an officer as an individual will be granted if the officer acted ultra vires (beyond his authority).
Suits by One State Against Another
One state may sue another state without the latter_s consent. The Supreme Court has exclusive original jurisdiction.
Tax or Regulation Applying to Both State and Private Entities
Congress may 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.
Tax or Regulation Applying Only to States
A federal tax or regulation that is not applicable to private businesses and that merely taxes or regulates a purely state or local government activity may be limited by the Tenth Amendment (e.g. requiring states to either regulate radioactive waste or take title to it is beyond Congress_s power). Exceptions: (i) Civil Rights - Congress may restrict state activities that violate civil liberties. (ii) Spending Power Conditions _ Congress may indirectly regulate states through the spending power by imposing conditions on the grant of money.
Commandeering State Officials
While not specifically resting on the Tenth Amendment, the Supreme Court has held that Congress may not require state executive officials to enforce federal laws because such a requirement would upset the Constitution_s dual sovereignty structure.
State Taxation and Regulation of Federal Government
A state may not directly tax federal instrumentalities without the consent of Congress. However, nondiscriminatory, indirect taxes are permissible if they do not unreasonably burden the federal government. States may not regulate the federal government or its agents while performing their federal functions.
Article IV _ Privileges of State Citizenship
The Interstate Privileges and Immunities Clause prohibits discrimination by a state against nonresidents. Note: Corporations and aliens are not protected by this clause. (In contrast, corporations and aliens are protected by the Equal Protection and Due Process Clauses of the Fourteenth Amendment, as well as the Dormant Commerce Clause).
Only Fundamental Rights Protected
Only fundamental rights _ those involving important commercial activities and civil liberties _ are protected.
Substantial Justification Exception
The state law may be valid if the state has a substantial justification for the different treatment. In effect, the state must show that nonresidents either cause or are part of the problem that the state is attempting to solve and that there are no less restrictive means to solve the problem.
Relationship to Commerce Clause
Although the Article IV Privileges and Immunities Clause and the Dormant Commerce Clause may apply different standards and produce different results, they tend to mutually reinforce each other. Consequently, thy both have to be considered in analyzing bar exam questions.
Fourteenth Amendment _ Privileges of National Citizenship
States may not deny their citizens the privileges or immunities of national citizenship. Corporations are not protected by this clause.
Regulation of Foreign Commerce
With a few minor exceptions, the power to regulate foreign commerce lies exclusively with Congress.
Power of Congress to Supersede or Preempt State Regulation
When Congress regulates interstate commerce, conflicting state laws are superseded and even nonconflicting state or local laws in the same field may be preempted.
Power of Congress to Permit or Prohibit State Regulation
Congress may permit state regulations that would otherwise violate the Commerce Clause. Likewise, Congress may prohibit state regulations that could otherwise be upheld under the commerce clause. Congress may not, however, permit states to violate civil liberties.
State Regulation of Commerce in the Absence of Congressional Action
If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce. To do so, however, it must not discriminate against or unduly burden interstate commerce. If it does, the state or local regulation will violate the commerce clause. [The examiners sometimes use the terms Dormant Commerce Clause and Negative Commerce Clause. These are merely descriptive terms that reflect the idea that even where Congress has not acted, the Commerce Clause restricts state regulation of interstate commerce; states may not favor local economic interests or unduly burden interstate commerce.]
Discriminatory Regulations
State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid.
Exception _ Important State Interest
A discriminatory state or local law may be valid if it furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives available.
Exception _ State as Market Participant
A state may prefer its own citizens when acting as a market participant.
Favoring Government Performing Traditional Government Functions
The Supreme Court applies a more lenient standard when a law favors government action that involves the performance of a traditional government function (such as waste disposal). Discrimination against interstate commerce in such a case is permissible because it is likely motivated by legitimate objectives rather than by economic protectionism.
Nondiscriminatory Laws
If a nondiscriminatory state law burdens interstate commerce, it will be valid unless the burden outweighs the promotion of a legitimate local interest. The court will consider whether less restrictive alternatives are available.
State Control of Corporations
A different standard may apply to statutes adopted by the state of incorporation regulating the internal governance of a corporation. Because of the states_ long history of regulating the internal governance of corporations that they create, and because of their strong interest in doing so, even a statute that heavily impacts interstate commerce may be upheld.
Intrastate Regulation
State governments have wide latitude over the importation of liquor and the conditions under which it is sold or used within the state. However, regulations that constitute only an economic preference for local liquor manufacturers may violate the Commerce Clause.
Interstate Regulation
Liquor in interstate commerce is subject to the Commerce Clause.
Federal Power
Congress may regulate economic transactions involving liquor through the federal commerce power or by conditioning grants of money.
Discriminatory Taxes
Unless authorized by Congress, state taxes that discriminate against interstate commerce violate the Commerce Clause. Note that these taxes may also violate other constitutional provisions.
Nondiscriminatory Taxes
A nondiscriminatory tax will be valid if the following requirements are met: (1) Substantial Nexus; (2) Fair Apportionment; and (3) Fair Relationship;
Substantial Nexus
To be valid, the tax must apply to an activity having a substantial nexus to the taxing state; i.e. there must be significant or substantial activity within the taxing state. (Lack of a substantial nexus might also violate the due process requirement of minimum contacts, but substantial nexus requires more in-state connections.)
Fair Apportionment
To be valid, the tax must be fairly apportioned according to a rational formula. However, the taxpayer has the burden of proving unfair apportionment. (An unfairly apportioned tax may also violate equal protection.)
Fair Relationship
To be valid, the tax must be fairly related to the services or benefits provided by the state.
Use Taxes
(1) Permissible in Buyer_s State. Use taxes are imposed on goods purchased outside the state but used within it. They are valid. (2) State May Force Seller to Collect Use Tax. An interstate seller may be required to collect a use tax if the seller has a sufficient nexus with the taxing state. Merely soliciting orders by mail and shipping orders into the state is not sufficient.
Sales Taxes
Sales taxes are taxes imposed on the seller of goods for sales consummated within the state. They generally do not discriminate against interstate commerce; rather, the issue usually involves whether there is a substantial nexus between the taxpayer and the taxing state or whether the tax is properly apportioned.
Ad Valorem Property Taxes
Ad valorem property taxes are based on the assessed value of the property in question.
No Tax on Commodities in Course of Interstate Commerce
Commodities in interstate transit are entirely exempt from state taxation. When Does Interstate Transportation Begin? Interstate transportation begins when the cargo (i) is delivered to an interstate carrier or (ii) actually starts its interstate journey. Effect of Break in Transit? A break in the continuity of transit does not destroy the interstate character of the shipment unless the break was intended to end or suspend the shipment. When Does Interstate Shipment End? The interstate shipment usually ends when the cargo reaches it destination; thereafter the goods are subject to local tax.
Tax on Instrumentalities Used to Transport Goods Interstate
The validity of ad valorem property taxes on instrumentalities of commerce depends on (i) whether the instrumentality has acquired taxable situs in the taxing state (i.e., whether there are sufficient contacts with the taxing state to justify the tax) and (ii) whether the value of the instrumentality has been properly apportioned according to the amount of the contacts with each taxing state.
