Federal v. State Power

Question 1

Federal v. State (Sources of Power)

Answer 1

Federal government –> powers granted by Constitution

-States –> police power

Question 2

Limitations on State Police Power

Answer 2

Include:

• Exclusive federal power –> reserves certain enumerated power exclusively for the federal government
• Individual Rights –> restricts the state governments from acting in violation of const. provisions
• Preemption –> under the supremacy clause, if Congress enacts legislation with the intention of preempting state law, the congressional regulation will control

Question 3

Preemption

Answer 3

Can be expressed or implied.

Question 4

Implied Preemption

Answer 4

Is present when:

• it is impossible to comply with both federal and state law
• the state law interferes too much with the accomplishment of federal law’s purposes
• federal regulation of a certain subject is so extensive that it seems that Congress must have intended to occupy the entire field and displace state law.

Question 5

Immunity of Federal Government

Answer 5

Includes:

• Sovereign Immunity- the federal gov cannot be sued without its consent
• Supremacy Clause- federal law is supreme over state law
• Taxation of Federal Government by a State: The federal government and its agencies and instrumentalities are immune from state taxation and regulation that would interfere with their performance of federal functions.

Question 6

Immunity of State Governments

Answer 6

Includes:

• the 11th Amendment (except for Civil Rights Amendments and Injunctive relief)
• the state is immune from federal taxation if the tax is applied to unique state activities or essential governmental functions
• Anti-Commandeering Doctrine

Question 7

Anti-Commandeering Doctrine

Answer 7

• The federal government can’t force states to act in their sovereign capacities (e.g. legislate or enforce laws), this violates the 10th Amendment (but remember that the federal government can likely use the spending clause to practically achieve the same result).
• It does not matter if a state is happy to obey the federal government regarding legislation or enforcement of a law.

Question 8

State Regulation of Commerce

Answer 8

Where Congress has not enacted legislation, the states are free to regulate local transactions affecting interstate commerce, subject to the limitations imposed by the dormant Commerce Clause

Question 9

Dormant Commerce Clause

Answer 9

States cannot discriminate against out-of-state economic actors without being subject to SS. State must show:

• the regulation serves a compelling interest; and
• the regulation is necessary to achieve the compelling interest

Question 10

Exceptions to the Dormant Commerce Clause

Answer 10

• Congress- Congress may affirmatively authorize states to legislate in areas that would violate the Dormant Commerce Clause
• Market participants- when states act as market participants, they may discriminate between in-state and out-of-state businesses

Question 11

Laws that Merely Burden Interstate Commerce

Answer 11

• If a law violates the Dormant Commerce Clause, it is said to discriminate or unduly burden interstate commerce.
• If a law merely incidentally burdens interstate commerce, the court will apply a balancing test and the law will be upheld unless the burden imposed on interstate commerce clearly outweighs the local benefits.