Federalism

Question 1

federalism flowchart (constitutionality of a statute)

Answer 1

• If the constitutionality of a statute is at issue, ask:
– Is the statute state or federal?

• If it is a federal statute, then ask two further questions:
– Does the Constitution authorize Congress to regulate in this area?
– If so, does this particular statute offend any constitutional check on federal power?

• If it is a state statute, then ask only one question:
– Does this particular statute offend any constitutional check on state power?

Question 2

premise of federal government; 7 key powers; 3 powers not given to federal govt

Answer 2

– The federal government is a government of limited, enumerated powers. The Constitution prescribes several “enumerated” areas in which Congress may regulate, the most important of which are:

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

– The following do NOT confer authority on the federal government to regulate:

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

Question 3

main commerce clause rule (3 areas of regulation)

Answer 3

– Interstate Commerce. 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 (i.e. are INTRAstate)
• any “economic” or “commercial” activity (even INTRAstate) 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

Question 4

two commerce clause exceptions (“aggregate”; compelling persons)

Answer 4

• Exceptions:

1. the “aggregate” test applies only to activities that are “economic” or “commercial” in nature
   • a federal statute banning possession of guns in school zones is NOT “economic” in nature
   • a federal statute creating a civil remedy for victims of gender-motivated violence is NOT “economic” in nature
   • a federal statute criminalizing possession of marijuana is “economic” in nature
2. the Commerce Clause may not be used to compel persons to purchase an unwanted product (you can’t use the CC power to force people to do something)

Question 5

what does “commerce” mean

Answer 5

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

Question 6

commerce clause power over foreign commerce

Answer 6

– Foreign Commerce. 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 7

spending power rules and limitations

Answer 7

– 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.

– Congress’s power under the spending clause is even broader than its power under the commerce clause; in other words, 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
»> i.e. can’t condition highway funds on public school curriculums

• the federal statute must give states a “genuine choice” and not be unduly coercive (e.g., a federal law that threatens to withhold 100% of federal Medicaid funds from states refusing to expand their Medicaid programs is unduly coercive because it does not give states a “genuine choice”).

Question 8

taxing power rule (what is a tax) and exception (what can govt not tax)

Answer 8

– rule: 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.

Question 9

war powers rules

Answer 9

– 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 10

treaty power rule

Answer 10

– 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 11

relevant civil war amendments

Answer 11

– § 5 of the 14th Amendment authorizes Congress to prohibit discrimination by STATE AND LOCAL GOVERNMENTS (doesn’t have to be racial discrimination!)
»> **cannot be used to regulate private discrimination (if the law regulates both government and private actors, look to the Commerce Clause)
»> § 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

– § 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 12

property clause rule

Answer 12

– 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 13

assuming the fed govt has the authority to regulate, which federalism checks apply to that power?

Answer 13

Checks that apply to only the federal government
• 10th Amendment
• 11th Amendment

Question 14

10th amendment general rule

Answer 14

– 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)
• **Thus, the 10th Amendment rarely limits Congress’s power, and is usually a wrong answer on the MBE.

Question 15

two modern limits on congress’ power under the 10th am

Answer 15

– Exceptions: There are two modern limits on Congress’s powers under the 10th Amendment (or federalism generally):

• NY v. US: The 10th Amendment bars Congress from ordering state legislatures to pass or not pass laws (i.e., Congress may not “commandeer” state legislatures and may not issue “direct orders” to state legislatures, such as a federal law prohibiting state legislatures from authorizing sports gambling schemes)
• but (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
• Printz v. U.S.: The 10th Amendment bars Congress from compelling state executive officials (e.g., county sheriffs) to enforce federal laws
• but (a) the federal government could enforce the law itself; or (b) the federal government could encourage state officials to enforce such laws under its spending power
• ***note: NY and Printz are limited to federal mandates that apply ONLY TO state governments
• In Reno, the Court upheld a law prohibiting states from selling DMV information because unlike the laws in NY and Printz, this law (a) applied to both states and private companies; and (b) did not impose an affirmative burden on the states
• State courts, unlike state legislatures and executives, are bound to enforce federal law under the Supremacy Clause
• Moreover, state courts must hear cases involving federal claims—they may not discriminate against actions brought to enforce federal law

Question 16

11th amendment general rule (Sovereign Immunity)

Answer 16

– General Rule: 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 citizens
• 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 17

11th am (Sovereign Immunity) exceptions (when states may be sued with fed claims) - 7

Answer 17

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

• 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
• money damages may be sought from a state official personally, but not if such damages would be paid out of the state treasury
• the state expressly waives its sovereign immunity

• suits brought by the United States or other states
- a state may sue another state for money damages in an original action in the Supreme Court

• Congressional Abrogation of State Sovereign Immunity. Congress may authorize private persons to sue state governments for money damages, but only in some very limited circumstances; these suits may arise only out of Congress’s power under § 5 of the 14th Amendment, and for the UBE are probably limited to suits for racial or gender discrimination or access to courts by disabled individuals
- Congress must make a “clear statement” of its intent to abrogate the 11th Amendment

• proceedings arising under federal bankruptcy law (e.g., adversary proceeding brought by bankruptcy trustee to set aside alleged preferential transfers made to state agencies was not barred by 11th Amendment)
• counties, cities, etc. are not protected by the 11th Amendment and thus are subject to liability for federal claims

Question 18

what to ask for federalism and state law; four federalism checks that apply to state govts

Answer 18

o If a state law is at issue, only one question need be asked: Is there a specific check in the Constitution prohibiting such a law?

–	1. Checks that apply only to the states, namely:
•	Supremacy Clause
•	Dormant Commerce Clause
•	Privileges and Immunities Clauses
•	Contracts Clause

Question 19

supremacy clause (express and implied)

Answer 19

– rule: 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 because
• it 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

two purposes of DCC

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

state law and DCC - two questions and two tests

Answer 21

A. Does the state law discriminate in purpose or effect against interstate commerce or out-of-staters? 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, NONECONOMIC local purpose (e.g., ecology) and (2) that there are no less discriminatory alternatives.

> > > examples: requiring all milk sold in-state to be pasturized in-state; protecting local businesses by placing a surcharge on OOS products; prohibiting OOS waste from being accepted in local landfills

> > > **note: discriminate purpose/effect means different rules for in state vs out of state residents! – ex) a new TN law that requires 60mph on highways, but the surrounding states have 70mph highways does not discriminate against out of staters – it is the same law applied to everyone in TN! (so instead, you would apply the “undue burden” test)

> > > **even if the law affects something like “all car manufacturers” and there are no car in-state car manufacturers, it is not discriminatory b/c it says “ALL” – but still look or undue burden

B. If the law is not discriminatory, the state law is valid unless it imposes an “undue burden” on interstate commerce.

• Test: A nondiscriminatory state law is presumptively valid and 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

three DCC exceptions

Answer 22

1. Congress has authorized states to discriminate against interstate commerce
   • But 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:
   • 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
   • 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:
   • A county ordinance requiring waste haulers collecting trash in that county to bring trash to state-created waste facility
   • A state income tax exemption for income derived from in-state bonds, but not out-of-state bonds

Question 23

Article IV PIC - rule and examples

Answer 23

• 1. Article IV Privileges and Immunities Clause: this clause prevents discrimination by states against nonresidents as to “fundamental rights” relating to important commercial activities.
• rule: 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 (“important” interest”) and that there are no less discriminatory means to solve the problem (i.e. this protection is not absolute)
• The Article IV Privileges and Immunities Clause has been used to invalidate:
• 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 24

14th Am PIC

Answer 24

• 2. 14th Amendment Privileges and Immunities Clause: 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.
»> It was used to invalidate 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. (really the only testable factual scenario)

**RARELY THE RIGHT ANSWER

Question 25

contracts clause - 2 general rules

Answer 25

– rule: 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 26

tests for contracts clause and pvt/public contracts

Answer 26

– Private Contracts. 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.

– Public Contracts. 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 27

ex post facto clause; bill of attainder clause; full faith and credit clause (what they are and who they apply to)

Answer 27

– Ex Post Facto Clauses (federal and state): An ex post facto law imposes criminal punishment for an act that occurred before the law became effective – this is unconstitutional
• 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.

– Bill of Attainder Clause (federal and state): 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 – this is unconstitutional

– Full Faith and Credit Clause: 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 28

rules for state regulation and taxation of the federal govt (test and 2 exceptions)

Answer 28

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

– State Taxation of Federal Government. 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 29

when can fed govt freely tax and regulate intergovernmentally

Answer 29

– rule: 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 30

rule for discriminatory state taxation of ISC

Answer 30

– rule: 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
• Examples: (1) if a state imposes a use tax, the rate cannot exceed the state’s sales tax and a credit must be given for the sales tax paid in the other state; (2) residents who pay taxes in another state for income earned in that state must be given a credit against state and local income taxes in their home state to avoid double taxation

Question 31

rule for states using nondiscriminatory taxes

Answer 31

– Nondiscriminatory Taxes: 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

Question 32

distinguish: PIC Clauses and Dormant CC

Answer 32

PIC Clauses: look to burden on INDIVIDUALS

• Article IV PIC: discriminates against current OOS residents who currently live OOS, and we always want to look for fundamental rights related to important commercial activities
• PIC of the 14th Am: focus on right to travel and right to vote; key to right to travel is that these laws will distinguish between residents solely on the length of their residency! so unlike the Article IV PIC, here the party is a new resident of this state, not a resident of another state

Dormant CC: look to burden on ISC (like hoarding goods or insulating from bad things)
»> discriminatory purpose/effect: virtually per se invalid
»> non discriminatory: does it still pose an undue burden on national uniformity/other states?