federalism

Question 1

10th amendment

Answer 1

powers not granted to federal government are reserved to state or people

Question 2

can state exercise general police powers?

Answer 2

yes

Question 3

standard for evaluating state general police power?

Answer 3

as long as there is a rational basis for serving health, safety, welfare, it is valid

Question 4

anti commandeering principle

Answer 4

congress cannot compel states to enact state legislation, to NOT enact certain legislation (like legalizing gambling) or administer federal programs

state/local employees cannot be compelled to run criminal background checks

Question 5

non-coercive use of spending power is not

Answer 5

comandeering

Question 6

what is non coercive spending power by congress

Answer 6

incentivize local officials to voluntary assist in administering federal laws by giving them federal $

Question 7

supremacy clause

Answer 7

federal law is supreme = preempts inconsistent state and local law

federal law wins if there is conflict with state law

Question 8

types of preemption

Answer 8

express preemption – congress says fed law wins

implied preemption – fed law does not expressly claim to be only permissible source of regulation

Question 9

Types of implied preemption

Answer 9

conflict between fed and state law

state law impedes or frustrates federal law, even if no direct conflict

field preemption – congress bars state/local law in the entire field [congress extensively regulates such that it manifests intent for states to stay out]

Question 10

Basic idea of state privileges and immunities clause of article 4

Answer 10

prohibits states from discriminating against out of state citizens with respect to

important commercial activities - ability to earn a living

and

fundamental rights

Question 11

who has privileges and immunities in article 4

Answer 11

only US citizens

not corporations or aliens

Question 12

to what extent can states discriminate against out of state citizens despite PI clause of article 4?

Answer 12

they can discriminate if there is an important state interest

the law is necessary to achieve an important government purpose and there are no less restrictive means available.

Question 13

what does the 14th amendment PI clause say?

Answer 13

states may not deny their citizens the P or I of national citizenship

not corporations

Question 14

what are privileges of national citizenship?

Answer 14

right to petition congress for redress of grievances

right to interstate travel

right to demand fed protection on high seas from pirates

right to vote for federal officers

Question 15

state power to regulate interstate commerce is limited by:

Answer 15

a superseding federal law regulating interstate commerce

dormant commerce clause rules against discrimination and burdening interstate commerce

Question 16

what does the dormant commerce clause allow and disallow state to do?

Answer 16

A state or local government may regulate local aspects of interstate commerce IF Congress has not enacted laws regarding the subject

BUT the state or local government must not discriminate against or unduly burden interstate commerce.

Question 17

discriminatory laws (that discriminate against other states) may violate what:

Answer 17

dormant CC

Article IV PI clause

Question 18

to what extent can state pass discriminatory regulations on interstate commerce?

Answer 18

discriminatory state laws are presumptively invalid

State can overcome this burden if it shows

(1) law is necessary to achieve important purpose unrelated to protectionism

and

(2) there are no reasonable nondiscriminatory alternatives available.

Question 19

what does it mean to discriminate in the context of the dormant commerce clause and state regulation of commerce?

Answer 19

regulations that protect local economic interests by imposing different requirements on other states

Question 20

to what extent can state pass NONdiscriminatory regulations on interstate commerce?

Answer 20

presumptively valid

nondiscriminatory law that BURDENS interstate commerce is also presumptively valid, BUT will be invalid if the burden placed on commerce outweighs any legitimate local interest

The court will consider whether less restrictive alternatives are available.

Question 21

exceptions to rule that dormant commerce clause prohibits discriminatory state regulations and burdens?

Answer 21

(1) congressional approval
congress may allow states to discriminate against or burden interstate commerce

(2) market participant
dormant commerce clause does not apply when state acts as buyer or seller of goods or services
(states can sell construction contracts, higher education, etc.)

(3) a regulation favoring local governments when performing traditional government functions is permissible

Question 22

how to approach questions that involve state regulation of commerce

Answer 22

Does the question refer to any federal legislation that might:
* Supersede the state regulation or preempt the field?
* Authorize state regulation otherwise impermissible?
If neither of these possibilities is dispositive, 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?
* *
* *
If the regulation is discriminatory, it will be invalid unless:

It furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives OR
The state is a market participant
If the regulation does not discriminate but burdens interstate com- merce, it will be invalid if the burden on commerce outweighs the state’s interest.

Question 23

how courts look at states passing nondiscriminatory laws impacting interstate interstate commerce when laws deal with corporations

Answer 23

A different standard may apply to statutes adopted by the state of incorporation regulating the internal governance of a corpora- tion. Because of the states’ long history of regulating the internal governance of corporations that they create, and because of their strong interest in doing so, even a statute that heavily impacts interstate commerce may be upheld (for example, a state may deny voting rights to persons who acquire a controlling interest
in a state corporation without approval from other shareholders, despite the impact that this may have on interstate commerce).

Question 24

examples of valid and invalid discrimination under PI clause of Article 4

Answer 24

Invalid Discrimination:
1. Statute requiring $2,500 license fee from nonresident commercial fishermen, while residents paid $25.
2. Statute giving resident creditors priority over nonresident creditors to assets of foreign corporations in receivership proceedings.
3. Rule limiting bar admission to state residents.
4. Statute requiring private sector employers to give hiring preference to residents.

Discrimination Upheld:
Statute requiring nonresidents to pay $225 license fee, as opposed to $30 residents’ fee, for recreational hunting.

Question 25

to what extent can federal government tax states and private entities

Answer 25

(1) Tax or Regulation Applying to Both State and Private Entities—Valid [ex: min wage laws]

(2) Tax or Regulation Applying Only to States—Typically Invalid [anti-commandeering]

Question 26

what has been found invalid under the anti-commandeering principle?

Answer 26

The following acts were found to be invalid under this anti-comman- deering principle:

1) Requiring states to enact environmental regulations

2) Requiring local law enforcement to conduct background checks for a federal handgun law

3) Banning states from legalizing sports gambling

Question 27

when can states tax federal government? / intergovernmental immunity

Answer 27

intergovernmental immunity doctrine = Based on the Supremacy Clause, states cannot interfere with or control the operations of the federal government

(1) states can’t regulate the federal government or its agents while performing their federal functions (for example, a state can’t require a member of the armed forces to have a driver’s license to drive military equipment in the state).

(2) States cannot directly tax federal instrumentalities without the consent of Congress.

what states CAN do:
States can enact nondiscriminatory, indirect taxes IF they do not unreasonably burden the federal government

Question 28

what is the market participant exception?

Answer 28

A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses (for example, when hiring labor, buying or selling products, or giving subsidies). However, once a state sells state-owned resources, it cannot control what happens to the resource after that. Thus, Alaska violated the Commerce Clause when it imposed a contractual require- ment on purchasers of state-owned timber that the timber be processed in Alaska before being shipped out of state.

Question 29

state taxes will be valid under the dormant commerce clause if:

Answer 29

(1) it does not discriminate against interstate commerce

(2) there is a substantial nexus between the activity taxed and taxing state

(3) tax is fairly apportioned

and

(4) tax fairly relates to services or benefits provided by the statute

Question 30

import-export clause

Answer 30

applies to authority of a state to tax foreign commerce