ConLaw - Relation of Nation and States in Federal System Flashcards
What is the supremacy clause?
Federal law and state law and there’s a conflict (fed says yes, state says no, or vise versa)
Federal always wins out as the supreme law of the land
This is also known as preemption
Note: if you do not have federal law and state law in hypo, then supremacy clause is NOT going to be the answer
Who has general power to legislate regarding marriage and divorce?
States have this general power, as family-oriented legislation is not within Congress’ enumerated powers.
Note: Congress does have state-like control over the District of Columbia, so they would be able to regulate marriage and divorces there.
What if federal and state laws on same** subject matter** but do not conflict?
States can be more restrictive on the subject matter under their police power, but CANNOT make less restrictive.
Federal government DOES NOT HAVE POLICE POWER!
Eg, FDA says if you’re cooking beef, need to cook for 320 degrees for 20 minutes. State of oklahoma says, wait a minute and passes law to cook at 400 for 20 minutes. This is okay under police power (aka general welfare clause) because MORE RESTRICTIVE.
Also, note if there is no federal law, then states can do what they want bc no conflict
What is the state police power?
This is the 10th amendment power granting states the power to do whatever is in the health, safety, welfare of citizens?
AKA general welfare clause
NOTE: if answer choice says that federal govt can do something under general welfare clause, this is WRONG, UNLESS HAS TO DO WITH TAXING AND SPENDING, as that is the only power congress has that has to do with general welfare.
What is commandeering?
Federal govt cannot require/make/compel a state govt to act (the act being compelled will usually take the form of congress requiring states to pass a law…thereby “commandeering the legislative processes of the states” (see below language)
eg, Congress cannot pass statute that requires state or states to do so and so…this would violate ban on commandeering. They can ask but not require.
Under the Tenth Amendment, Congress may not “commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”
Look for “REQUIRE” “MAKE” “COMPEL”
Short of commandeering, what is federal power over states?
The federal government has** virtually unlimited power** to regulate the states.
Generally, Congress may regulate the states so long as it is exercising an enumerated power.
While Congress cannot command state legislatures to enact specific legislation or administer federal regulatory programs, it may encourage state action through the use of its **taxing and spending powers **(e.g., Congress can condition federal highway funds on the state’s requiring a minimum drinking age of 21).
Can states tax the federal government?
What about federal employees?
No. The federal government is immune from taxation by any state.
Federal immunity from state taxation exists only in these situations where the ‘‘legal incidence’’ of the tax is on the United States. Employees of the federal government are not immune from state taxation. If the law taxed them in the course of their federal duties, that would not be okay, but if just taxing them individually, that is OK.
What is the dormant commerce clause?
Congress has power to regulate interstate business, but when state’s are passing laws regulating business, we are talking about the DORMANT COMMERCE CLAUSE.
This is inferred from Commerce Clause in constitution
Note: usually will not use the word “dormant,” will just have to notice that it’s a state passing law about business, not the federal govt (IC clause)
States cannot pass law about business if it discriminates against out of state business interests to benefit local interests AND also cannot unduly burden interstate commerce with its regulations.
The Privileges and Immunities Clause of Article IV, Section 2 of the Constitution states…
that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”
This clause protects fundamental rights of individual citizens and restrains state efforts to discriminate against out-of-state citizens. However, the Privileges and Immunities Clause extends not to all commercial activity, but only to fundamental rights.
Not to be confused with 14th am priv’s and immun’s clause
Article I, Section 8, Clause 3 says The Congress shall have Power . . .
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .
ie, the commerce clause (and implicitly, the dormant commerce clause)
What types of discrimination are there for purposes of dormant commerce clause?
On its face; in practical effect; excessive burden
State laws that discriminate against out-of-state commerce in favor of in-state commerce—either on their face or in practical effect—are subject to strict scrutiny and thus a nearly per se rule of invalidity (narrowly tailored to meet a legitimate, nonprotectionist purpose.)
Even if not discriminatory, state laws that substantially affect interstate commerce can also be invalidated if the burden on interstate commerce is clearly excessive in relation to the putative in-state benefits.
Note: evidence of protectionist motives (such as statements in the legislative
history) might be relevant to whether the law is discriminatory in practical effect
Usually they will just give you statute that state A passed law, then other state complains that violates commerce clause. If any possibility that it could discriminate against them, usually will be found discriminatory and in violation of dormant commerce clause.
On q’s, will be looking for a state passing a law and another state complaining
Is a license qualification that requires in-state college prima facie in violation of dormant commerce clause?
No because applies to both in-state and out-of-state residents. This is a dirty trick. Make sure the question is specifically discriminating between in-state and out-of-state CITIZENS. can go to school in-state and still be a citizen out-of-state.
Under the dormant commerce clause, a state regulation that **substantially affects **interstate commerce must meet each of the following requirements to be upheld:
(1) The regulation must pursue a legitimate end;
(2) The regulation must be rationally related to that legitimate end;
and
(3) The regulatory burden imposed by the state on interstate commerce, and any discrimination against interstate commerce, must be outweighed by the state’s interest in enforcing the regulation.
Protection of a state’s economic interests is generally not considered to be a legitimate state objective, where the pursuit of that objective materially affects interstate commerce.
What is a buzzword for “dormant commerce clause”
“negative implications of the Commerce Clause
If state actions would normally violate Dormant Commerce Claue, can federal Congress pass law to consent to the state action?
Yes, where a state takes an action that would ordinarily be held to violate dormant Commerce Clause principles, Congress is always free to affirmatively consent to the state action, in which case there is no violation.
