Federalism Flashcards
What are the exclusive state powers?
Under the Tenth Amendment, all powers not granted to the federal government or prohibited to the states are reserved to the states or the people. Note, however, that federal powers are given an expansive interpretation, and thus little state power is exclusive.
a. States Have General Police Powers
The fact that the Tenth Amendment reserves all other powers to the states means that states have general police powers—that is, they can regulate the health, safety, and welfare of their people. Such regulations will be upheld if they are rational, unless they burden a fundamental right or involve a suspect or quasi-suspect classification (see infra).
What is the federal taxation and regulation of state or local governments?
a. Tax or Regulation Applying to Both State and Private Entities—Valid Congress can subject state and local government activities to regulation or taxation if the law or tax applies to both the public sector and the private sector (for example, minimum wage laws)
b. Tax or Regulation Applying Only to States—Invalid
Under Anti-Commandeering Principle
However, the Tenth Amendment does limit Congress’s power to regulate the states alone by requiring the states to act in a particular way. In other words, Congress can’t compel (“commandeer”) the states to enact state laws or to enforce federal laws. Similarly, if Congress passes a tax that does not apply to private businesses but merely taxes state government entities, it’s possible the Court will use the Tenth Amendment to prohibit the tax.
What is the exception to the federal taxation and regulation of state or local governments?
Exception—Civil Rights Under its Fourteenth Amendment enforcement powers, Congress may restrict states from discriminating in violation of equal protection or depriving rights protected by due process (see infra).
What is the state taxation and regulation of federal government?
A state may not directly tax federal instrumentalities without the consent of Congress. However, nondiscriminatory, indirect taxes are permissible if they do not unreasonably burden the federal government (for example, state income tax on federal employees). Neither may states regulate the federal government or its agents while performing their federal functions (for example, a state cannot require a member of the armed forces to have a driver’s license to drive military equipment in the state).
What is the effect of the supremacy clause?
cause of the Supremacy Clause, a federal law may supersede or preempt state (or local) laws. Federal law includes the Constitution, federal statutes and regulations, treaties, and executive agreements.
What is express preemption?
A federal law may expressly say that the states may not adopt laws concerning the subject matter of the federal legislation. Express preemption clauses will be narrowly construed.
What are the different types of implied preemption?
(1)Conflict Between State and Federal Law
Requirements: If a state law conflicts with federal law requirements, such that it would be impossible to follow both laws, the state law will be held to be impliedly preempted.
(2) State Prevents Achievement of Federal Objective: If a state or local law prevents achievement of a federal objective, it will also be held to be impliedly preempted. This is true even if the state law was enacted for some valid purpose and not to frustrate the federal law (for example, state law providing for suspension of driver’s license of persons who fail to pay off an auto accident case judgment, regardless of the person’s discharge in bankruptcy, is invalid).
(3) Field Preemption: A valid federal law may impliedly “occupy” the entire field, thus barring any state or local law even if the state or local law is nonconflicting. The courts will look at the regulatory scheme to determine whether Congress intended to preempt the entire field (for example, if federal laws are comprehensive or an agency was created to oversee the area, preemption may be found).
What is the presumption against preemption?
In all preemption cases, but especially in cases involving a field traditionally within the power of the states (for example, regulations involving health, safety, or welfare), courts will start with the presumption that the historic state police powers are not to be superseded unless that was the clear and manifest purpose of Congress.
What is the absence of federal and state power?
Some powers are denied to both Congress and the states. For example, the qualifications for serving in Congress are set by the Constitution and cannot be altered by Congress or the states.
What is the interstate compact clause?
The Interstate Compact Clause concerns agreements between states. If the agreement increases the states’ power at the expense of federal power, congressional approval is required.
What does Article IV - Privileges and state citizenship do?
The Article IV Interstate Privileges and Immunities Clause prohibits discrimination by a state against nonresidents.
Note: Corporations and aliens are not protected by this Clause. (In contrast, corporations and aliens are protected by the Equal Protection and Due Process Clauses of the Fourteenth Amendment, as well as the Dormant Commerce
Clause, discussed infra.)
What important activities and fundamental rights are protected under the Interstate and Immunities Clause of Article IV.
The Interstate Privileges and Immunities Clause of Article IV prohibits discrimination by a state against nonresidents of the state when the discrimination concerns either important commercial activities (such as the pursuit of a livelihood) or fundamental rights. However, the Clause applies only if the discrimination is intentionally protectionist in nature. For example, a state cannot charge nonresident commercial fishermen substantially more for a commercial fishing license than resident commercial fishermen ($2,500 versus $25).
Is an important State interest required?
If the state law burdens an important commercial activity or fundamental right, it will be invalid unless the law is necessary to achieve an important government purpose and there are no less restrictive means available. In effect, the state must show that nonresidents either cause or are part of the problem that the state is attempting to solve and that there are no less restrictive means to solve the problem.
What relationship does the privileges and immunities clause of article IV have with the commerce clause?
Although the Article IV Privileges and Immunities Clause and the Dormant Commerce Clause (discussed infra) may apply different standards and produce different results, they tend to mutually reinforce each other. Consequently, they both have to be considered in analyzing bar exam questions.
What is the effect of the fourteenth amendment?
States may not deny their citizens the privileges or immunities of national citizenship (for example, the right to petition Congress for redress of grievances, the right to vote for federal officers, and the right to interstate travel). Corporations are not protected by this Clause.
How does congress regulate commerce?
When Congress regulates interstate commerce, conflicting state laws are superseded and even nonconflicting state or local laws in the same field may be preempted. (See Section 5.1.5., supra.)
How does congress regulate commerce in the absence of congressional action?
If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce. To do so, however, the state or local government must not discriminate against or unduly burden interstate commerce. If it does, the state or local regulation will violate the Commerce Clause.
What happens to discriminatory regulations from the state that affect interstate commerce?
State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid (for example, New York cannot ban California wines or tax them at a higher rate than local wines).
-Important State Interest Needed
A discriminatory state or local law may be valid if it is necessary to achieve an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives available. Example: A state could prohibit importation of live bait fish because parasites could have a detrimental effect on its own fish population. However, a state could not prohibit export of live bait fish when no major state interest was involved.
