Federalism

Question 1

Exclusive State Powers

Answer 1

General Police Powers
-The power to regulate health, safety, and welfare of the people
-Rational basis review unless regulation involves a fundamental right or a suspect/quasi-suspect classification

Question 2

Anti-Commandeering Principle

Answer 2

Congress cannot compel the states to enact state laws or enforce federal laws
-But spending conditions that incentivize voluntarily assisting in administrating federal laws do not violate this principle

Exception: Congress may restrict states from discriminating in violation of EP or DPC

Question 3

Intergovernmental Immunity Doctrine

Answer 3

States cannot interfere with or control the operations of the federal government
-But nondiscriminatory indirect taxes that do not unreasonably burden the federal government are permissible (i.e., state tax on federal employees)

Question 4

Express Preemption

Answer 4

A federal law may expressly state that states may not adopt laws concerning the subject matter of the federal legislation
-Must be narrowly construed

Question 5

Implied Preemption

Answer 5

1. State/local law and federal law conflict = state law is preempted
2. State/local law prevents achieve of federal objective = state law is preempted
   -i.e., denying unemployment benefits to those who report discrimination complaint to federal agency

Question 6

Field Preemption

Answer 6

A valid federal law may “occupy” the entire field of law barring any state or local law even if it does not conflict (i.e., immigration)

Question 7

Article IV Interstate Privileges and Immunities Clause

Answer 7

Prohibits discrimination by a state against non-residents (corporations and aliens not protected)
-Discrimination that is intentionally protectionist concerning commercial activities or fundamental rights
>i.e., charging substantially more for non-resident commercial fishing licenses
-Regulation is invalid unless:
>the law is necessary to achieve an important government purpose; AND
>no less restrictive alternatives

*Note: bar questions test Dormant Commerce Clause vs. Article IV P&I

Question 8

Fourteenth Amendment Privileges and Immunities Clause

Answer 8

Prohibits states from denying their own citizens the privileges or immunities of national citizenship (i.e., right to interstate travel)
-Does not protect corporations, but does apply to aliens

Question 9

Commerce Clause

Answer 9

When Congress regulates interstate commerce:
-Conflicting state laws are superseded
-Nonconflicting state/local laws may be subject to field preemption

Question 10

Dormant/Negative Commerce Clause

Answer 10

Even where Congress has not acted, the Commerce Clause restricts state regulation on interstate commerce
-A state or local government may regulate local aspects of interstate commerce only if it does not discriminate against or unduly burden interstate commerce

Discriminatory Regulations
-State/local regulations that discriminate against interstate commerce to protect local economic interests are invalid unless:
>Necessary to achieve an important, non-economic state interest; and
>No reasonable nondiscriminatory alternatives

Nondiscriminatory Regulations
-If a state/local law treats local and out-of-state interests alike, but still burdens interstate commerce, it will be valid unless:
>Burden outweighs the promotion of legitimate local interest (alternatives?)

Exceptions:
-Congressional approval
-Market participant (state may prefer own citizens in receiving benefits or dealing with government-owned business)
-Performance of traditional government functions (i.e., waste disposal)

Question 11

Approach for Interstate Commerce Question

Answer 11

1. Does federal regulation supersede the state regulation or preempt the field?
2. Does federal regulation authorize state regulation otherwise impermissible?
3. If no to both:
   -Does the state regulation either discriminate against interstate or out-of-state commerce or place an undue burden on the free flow of interstate commerce?
4. If so, it is invalid unless:
   -Furthers important, non-economic state interest + no reasonable alternatives
   -State is market participant (benefits or deals with government-owned business)

*Non-discriminatory regulation can still be invalid if the burden on commerce outweighs the state’s interest

*Article IV P&I may apply if the regulation denies an out-of-state person important economic interests or civil liberties
-Invalid unless important government interest + no less restrictive means

Question 12

State Taxation of Interstate Commerce

Answer 12

1. Does the state tax affect an activity addressed by federal legislation?
2. If no, does the state tax discriminate against interstate commerce
3. If no, does the state tax unduly burden interstate commerce?
4. If no, valid state tax

Question 13

State Taxation on Interstate Commerce

Answer 13

Use tax (goods purchased outside the state, but used within it)
-Valid unless higher than sales tax

Sales tax (sale of goods consummated within the state)
-Valid if substantial nexus to taxing state and tax is properly apportioned

Ad Valorem tax (assessed value of property)
-Valid for commodities only if property is no longer in interstate commerce
-Valid for instrumentalities if taxable situs in state and tax is fairly apportioned

Privilege, License, Franchise, or Operational tax (“doing business” tax)
-Valid if (1) substantial nexus; (2) does not discriminate against interstate commerce; and (3) fairly relates to services provided by the state