Constitutional Law: The Relationship between the federal government and state governments (federalism)

Question 1

Enumerated areas where Congress may regulate

Answer 1

• Commerce Clause
• Spending Clause
• Taxing Claus
• War Powers
• Treaty Power
• Post-Civil War Amendments
• Property Clause

Question 2

Where federal government cant regulate

Answer 2

• Police Power
• General Welfare (except in connection with the Spending Clause)
• Necessary & Proper Clause (standing alone)

Question 3

Commerce Clause: interstate commerce

Answer 3

Under the Commerce Clause, Congress may regulate:

anything that crosses state lines, physically, electronically, or otherwise

the instrumentalities of interstate commerce (e.g., planes, trains, telephone calls, Internet, etc.), even if they do not cross state lines

any “economic” or “commercial” activity that, in the aggregate, has a substantial effect on interstate commerce;

     under this test, Congress can regulate virtually 
     any activity and its power is plenary- 

Exceptions:
1) the “aggregate” test applies only to activities that are “economic” or “commercial” in nature

2) the Commerce Clause may not be used to compel persons to purchase an unwanted product

For purposes of the Commerce Clause, the term “commerce” includes “every species of commercial intercourse,” including transportation and traffic.

Question 4

Commerce Clause: Foreign Commerce

Answer 4

Congress’s power to regulate foreign commerce is exclusive; with a few minor exceptions, states have no power to regulate or interfere with foreign commerce.

Question 5

Spending Clause

Answer 5

Congress may spend for the general welfare of the nation and to pay debts (note: this is the only time Congress may rely on the “general welfare” to act).

The spending clause is an independent source of federal power; spending is not limited to the other enumerated powers.

the spending clause may be used to “regulate” (i.e., encourage) indirectly what Congress cannot regulate directly, subject to the following limitations:

• the conditions imposed by Congress must be “related” to the purpose of the program; and
• the federal statute must give states a “genuine choice” and not be unduly coercive

Question 6

Taxing Clause

Answer 6

For UBE purposes, Congress may tax anything as long as the tax is reasonably related to raising revenue, regardless of any other motives Congress may have had (e.g., to tax something out of existence).

• Exception: Taxes that violate First Amendment (free speech, free religion, assembly, etc.)

Question 7

War Powers

Answer 7

In the theater of war, Congress’s powers are virtually unlimited (but are shared with the President)

On the homefront, Congress has significant power both during and after war to remedy the effects of war, including the economic effects.

• The Commerce Clause has probably superseded the War Powers on the homefront.

Question 8

Treaty Power

Answer 8

Congress has the power to pass laws to enforce treaties.

• A treaty cannot confer on Congress authority to act in a manner inconsistent with a specific provision of the Constitution.

Question 9

Post-Civil War Amendments: § 5 of the 14th Amendment

Answer 9

§ 5 of the 14th Amendment authorizes Congress to prohibit discrimination by state and local governments, but may not be used to regulate private discrimination

• § 5 of the 14th Amendment is usually a wrong answer on the MBE, unless the question is testing exceptions to the 11th Amendment or the federal government is regulating purely state activities

Question 10

Post-Civil War Amendments:

§ 2 of the 13th Amendment

Answer 10

§ 2 of the 13th Amendment may be used to regulate any private discriminatory behavior if such behavior constitutes a “badge or incident” of slavery, such as refusing to rent or sell property, or contract with, or admit a child to a private school, or employ a person because of race;

unlike the Commerce Clause, § 2 of the 13th Amendment does not require a showing that the discrimination has a “substantial effect” on interstate commerce

• If Congress passes a law prohibiting racial discrimination by private entities, the best constitutional authority for such statute is usually the Commerce Clause; if the Commerce Clause will not work, then § 2 of the 13th Amendment is the best answer

Question 11

Property Clause

Answer 11

Authorizes Congress to pass any laws relating to the ownership, transfer, disposal, or use of federal property (real, personal, intangible).
• Thus, Congress has “police” powers in the District of Columbia, and in federal parks, military bases, etc.

Question 12

Checks that only apply to the federal government

Answer 12

• 10th Amendment

* 11th Amendment

Question 13

10th Am: General Rule

Answer 13

General Rule: The 10th Amendment provides that state governments have all power not conferred upon the federal government (nor prohibited to the states) by the Constitution.

• Today, the 10th Amendment is simply a truism (i.e., states have those powers not given to the federal government, but since federal power has been construed so broadly, there is little left for the states)
• . the 10th Amendment rarely limits Congress’s power, and is usually a wrong answer on the MBE.

Question 14

10th Am: Exceptions

Answer 14

2 limits on congress’s power under the 10th am:

1) The 10th Amendment bars Congress from ordering state legislatures to pass or not pass laws
2) The 10th Amendment bars Congress from compelling state executive officials (e.g., county sheriffs) to enforce federal laws

however for both exceptions:

(a) the federal government could pass the law itself (assuming it has such authority, which it often will); or
(b) the federal government could encourage the state to pass (or not pass) such laws under its spending power

State courts, unlike state legislatures and executives, are bound to enforce federal law under the Supremacy Clause

Question 15

11th Amendment: General Rule

Answer 15

state governments may not be sued for money damages for federal claims. Thus:

A federal claim may not be brought against a state by (a) citizens of other states; (b) citizens of that state; or (c) foreign citizen

The 11th Amendment (and state sovereign immunity) bars federal claims brought by these parties against a state in federal court, state court (the defendant’s state or another state), or federal administrative tribunals (e.g., Federal Maritime Commission)

Question 16

11th Amendment: exceptions

Answer 16

Times when federal claims may be brought against a “state”:

1) a suit for prospective injunctive relief (including an order to pay—in the future—any money needed to comply with the injunction) against a state official in his or her official capacity
2) money damages may be sought from a state official personally, but not if such damages would be paid out of the state treasury

3) the state expressly waives its sovereign immunity
• suits brought by the United States or other states

4) a state may sue another state for money damages in an original action in the Supreme Court
5) Congressional abrogation of state sovereign immunity (detailed on another slide)

Question 17

11th Amendment: exception: Congressional Abrogation of State Sovereign Immunity

Answer 17

Congress may authorize private persons to sue state governments for money damages, but only in some very limited circumstances;

• Congress must make a “clear statement” of its intent to abrogate the 11th Amendment
• proceedings arising under federal bankruptcy law
• counties, cities, etc. are not protected by the 11th Amendment and thus are subject to liability for federal claims

Question 18

checks that apply only to the state governments

Answer 18

Supremacy Clause
Dormant Commerce Clause
Privileges and Immunities Clauses
Contracts Clause

Question 19

Supremacy Clause (preemption)

Answer 19

Federal laws are superior to state laws:

i. If a valid federal law expressly preempts state laws.

Express preemption clauses are narrowly construed, particularly in areas traditionally regulated by states

ii. If a valid federal law impliedly preempts state laws becauseit is:

impossible to comply with both the state and federal laws without violating one (“Impossibility Preemption”);

the state law is an obstacle to the objective of the federal law (“Obstacle Preemption”); or

Congress has impliedly taken over the entire field (e.g., immigration) with a comprehensive law (“Field Preemption”).

Question 20

Dormant Commerce Clause: purpose

Answer 20

The Commerce Clause serves two purposes:

(1) it is authority for Congress to pass laws regulating interstate commerce; and
(2) it impliedly limits states’ authority to interfere with interstate commerce.

Question 21

Dormant Commerce Clause: test

Answer 21

A) If the state law is discriminatory:

A state discriminates if it hoards valuable things (e.g., jobs, natural resources) or insulates itself from regional or national problems (e.g., garbage, nuclear waste, competition).

Test: Discriminatory laws are subject to the “virtually per se invalid” test. Under this test, the state must show (1) an important local purpose (e.g., ecology) and (2) that there are no less discriminatory alternatives.

B) If the State law is not discriminatory:

the state law is valid unless it imposes an “undue burden” on interstate commerce.

Test: A nondiscriminatory state law will be invalidated only if the local benefits are slight and the burden on interstate commerce is significant; under such test, a court may invalidate a state law if (1) there are alternatives that impose less burden on interstate commerce; or (2) the law conflicts with the laws of other states (and thus there is no national uniformity).

Question 22

Exceptions to Dormant Commerce Clause

Answer 22

A state (or local government) may discriminate if:

1. Congress has authorized states to discriminate against interstate commerce

o Congress may not authorize violations of other constitutional provisions, such as Article IV’s Privileges and Immunities Clause or the Equal Protection Clause

2. The state is a “Market Participant,” as opposed to a market regulator;

in such cases, a state may discriminate in favor its own residents; these are situations in which the state itself is the seller or provider of goods or services (e.g., a state owned cement plant).

However, the “market participant” exception does not authorize:

o state discrimination as to “fundamental rights” (e.g., private employment, practice of law, civil liberties) because such discrimination violates Article IV’s Privileges and Immunities Clause

o states to impose discriminatory regulations in a downstream market (e.g., Alaska could not require buyers of Alaskan timber to process the timber in Alaska)

3. The state favors a public entity, such as:

o A county ordinance requiring waste haulers collecting trash in that county to bring trash to state-created waste facility

o A state income tax exemption for income derived from in-state bonds, but not out-of-state bonds

Question 23

Article IV Privileges and Immunities Clause

Answer 23

this clause prevents discrimination by states against nonresidents as to “fundamental rights” relating to important commercial activities.

A state law discriminating against nonresidents with regard to such a “fundamental right” will be invalidated unless the state shows:

a substantial justification for the discriminatory treatment and

that there are no less discriminatory means to solve the problem.

Question 24

14th Amendment Privileges and Immunities Clause:

Answer 24

this clause prohibits states from denying their citizens the privileges and immunities of national citizenship, such as the right to interstate travel and the right to vote in federal elections.

This clause protects the right of newly arrived citizens to enjoy the same privileges and immunities that are enjoyed by long-term citizens of the state.

Question 25

The Article IV Privileges and Immunities Clause has been used to invalidate:

Answer 25

A state law charging nonresidents substantially more for a commercial fishing license than residents (but not a state law charging nonresidents substantially more for a recreational hunting license);

A state law requiring state residency to be licensed to practice law in the state; and

A state (or local) law requiring private employers to give hiring preference to state residents.

Question 26

14th Amendment Privileges and Immunities Clause has been used to invalidate:

Answer 26

a California law limiting new residents, for the first year they live in California, to the welfare benefits they would have received in the state of their prior residence.

Question 27

2 privilege and immunity clauses:

Answer 27

1) Article IV Privileges and Immunities Clause

2 14th Amendment Privileges and Immunities Clause

Corporations and aliens are not considered “citizens” for purposes of the privileges and immunities clauses.

Question 28

Contracts Clause

Answer 28

No state or local government shall impair the obligations of contracts.

• the Contracts Clause does not apply to the federal government
• the Contracts Clause applies only to existing contracts, not future contracts

Question 29

Private Contracts

Answer 29

If a state law impairs the obligations of a contract between two private parties, courts apply the following test: (1) Does the law “substantially” impair a party’s rights under an existing contract? (2) If so, is the law a reasonable and appropriate means of promoting a significant and legitimate public purpose? This test is similar to the Rational Basis Test; as a result, courts are highly unlikely to invalidate a state law that impairs a private contract.

Question 30

Public Contracts

Answer 30

If a state law impairs a contract in which the state is a party, the law will be upheld only if it is reasonable and necessary to serve an important public purpose. This test is similar to Strict Scrutiny.

Question 31

Ex Post Facto Clauses (federal and state)

Answer 31

An ex post facto law imposes criminal punishment for an act that occurred before the law became effective. The clause is also violated where the government prescribes greater punishment than was prescribed when the act was committed, reduces the evidence necessary for a conviction, increases the statute of limitations for a crime, or retroactively reduces an inmate’s “good time” or “early release” credits.

Question 32

Bill of Attainder Clause (federal and state)

Answer 32

A bill of attainder is a legislative act that inflicts punishment (e.g., imprisonment, punitive confiscation of property, prohibition from employment or vocational opportunities) on named individuals or on easily identifiable members of groups.

Question 33

Full Faith and Credit Clause

Answer 33

Final judgments on the merits rendered by a state court with jurisdiction must be recognized and enforced by other states as a matter of right. A second court may not retry any matter, factual or legal, properly at issue in the first proceeding. In other words, the first judgment serves as a bar to suits brought in other states. By its terms, the Full Faith and Credit Clause applies exclusively to states, but a federal statute requires recognition of judgments between state and federal courts.

Question 34

Intergovernmental Taxes and Regulations: State Laws

A) State regulation of Federal government

Answer 34

A. State Regulation of Federal Government. A state has no power to regulate the activities of the federal government, unless Congress consents.

Question 35

Intergovernmental Taxes and Regulations: Federal Law

Answer 35

The federal government may tax or regulate state government activities as long as the tax or regulation applies to both the private sector and public sector.

Question 36

Intergovernmental Taxes and Regulations: State Laws

B) State taxation of Federal government

Answer 36

A state may not tax the federal government, including its land or instrumentalities.

Test: If the money to pay a state tax comes out of the federal treasury, the state tax is unconstitutional.

Exceptions: (1) a state may impose non-discriminatory income taxes (i.e., the tax does not discriminate against persons employed by the United States) on the salaries of federal employees (paid by the employee); (2) a private contractor working for the federal government can be compelled to pay state sales tax if the contractor is working on a cost-plus basis.

Question 37

State taxes that discriminate against interstate commerce

Answer 37

State taxes that discriminate against interstate commerce (i.e., a higher rate for interstate commerce than for intrastate commerce) violate the Dormant Commerce Clause (and thus are unconstitutional), unless such discrimination has been approved by Congress

Question 38

Nondiscriminatory Taxes

Answer 38

A state may tax interstate commerce and interstate businesses if:

• there is a substantial nexus between the activity or property taxed and the state (i.e., such a nexus is established when the taxpayer avails itself of the privilege of carrying on business in that jurisdiction, including a significant quantity of Internet sales)
• the tax must be fairly apportioned (i.e., the tax should be based on the extent of the taxable activity or property in the state; otherwise, the taxpayer would be subject to multiple taxation)
• the tax must be fairly related to the services or benefits provided by the state