Federal Regulation of the States

Question 1

What is the rule on regulating the states as states?

Answer 1

Congress cannot “directly compel” States to adopt a federal regulatory scheme or enact legislation (New York), however absent those elements practically the government can leverage its Commerce power to regulate the states as states (Condon)

Question 2

How can Congress influence states to adopt a federal regulatory scheme or enact legislation?

Answer 2

Alternatives to the Commerce Power (e.g., conditional spending)
Allowing them to enact legislation rather than be pre-empted by federal law (if legal)

Question 3

Printz v. United States

Answer 3

10th A prohibits commandeering of state executive officers for federal service

Question 4

Reno v. Condon

Answer 4

If a federal program does not require a state to enact laws, regulations, or commandeers state officials it does not violate the 10th A

Question 5

What is the test for determining whether Congress can exercise its Am. 14 and Am. 15 Article 5 powers in abrogation of the 10th or 11th As?

Answer 5

1) What is the individual right being infringed?
2) Did Congress identify a history and patterns of violations from the state?
3) Is the remedy congruent and proportional to the right? (Lane)

Question 6

What is meant by congruent and proportional?

Answer 6

A prophylactic rule against constitutional conduct meant to either prevent future or remedy past discrimination/unconstitutional conduct

Question 7

Shelby County v. Holder

Answer 7

The Lane test may be affected by changes over time in the prevalence of discriminatory practices by the state, especially of a statute passed under Sec. 5 is being renewed

Question 8

What are the three kinds of pre-emption?

Answer 8

Express: Congress writes it into statute
Field: Look at the legislation and determine if there is any room for the state to operate
Conflict: It is impossible to comply with both federal and state regulation

Question 9

What is the dormant commerce clause?

Answer 9

A negative implicit command forbidding enforcement of certain regulators even if Congress hasn’t legislated

Question 10

What are the three different kinds of dormant commerce clause cases?

Answer 10

1) Statute has a discriminatory end/purpose (Per se rule against)
2) Statute uses a facially discriminatory means but does not have a discriminatory purpose
3) Facially neutral statutes

Question 11

What is the exception to the per se rule against statutes with a discriminatory end/purpose against out of state commerce?

Answer 11

Reeves: When a state participates in markets, their actions are largely immune from the DCC

Question 12

What is the treatment for a state statute that uses a facially discriminatory means against something from out of state but does not have a discriminatory purpose?

Answer 12

It is valid if the state proves that there is a legitimate local purpose that could not be served as well by non-discriminatory means (Martin v. Taylor)

Question 13

What is the treatment of state statutes that are facially neutral but may have a disproportionate effect on out of state commerce?

Answer 13

Pike test: Valid if the burdens on interstate commerce are not clearly excessive in relation to the putative local benefits

Question 14

Garcia v. SAMTA

Answer 14

There is no protection over state substantive power to regulate commerce; the protection comes from the political process

Question 15

Murphy v. NCAA

Answer 15

Congress cannot forbid the states from allowing, operating, or regulating a lottery/gambling scheme

Question 16

Kassel

Answer 16

If a state offers safety justifications that “are not just illusory” for regulation that burdens IC commerce, the Court will not second-guess legislative judgment

Question 17

What is extent of the Privileges and Immunities Clause? (Art IV Sec. 2)

Answer 17

The Court will uphold a provision if there is a reasonable relationship between the danger represented by noncitizens, as a class, and the severe discrimination placed upon them