Federalism

Question 1

Exclusive state powers

Answer 1

Under tenth amendment, all powers not granted to the federal government or prohibited to the states are reserved to the state or the people

Federal powers are given an expansive interpretation
- so little state power is exclusive

Question 2

States’ general police powers

Answer 2

Fact that the 10th amend reserves all other powers to the states means that states have general police powers
- they can regulate the health, safety, and welfare of their people

Upheld if they are rational
- unless they burden a fundamental right or involve a suspect or quasi-suspect classification

Question 3

Anti-commandeer

Answer 3

Congress cannot commandeer the states by requiring them to enact state laws or to enforce federal laws

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 10th amendment to prohibit the tax
- anti-commandeering rule does not apply when Congress regulates an activity in which both the states and private actors engage

Following acts were invalid
- requiring states to enact environmental regulations
- requiring local law enforcement to conduct background checks for a federal handgun law
- banning states from legalizing sports gambling

Question 4

Anti-commandeer and non-coercive spending conditions

Answer 4

Not all spending conditions are problematic

on-coercive spending conditions don’t violate the anti-commandeering principle

Question 5

Supremacy clause generally

Answer 5

Because of the Supremacy Clause, a federal law may supersede or preempt state or local laws

Express preemption and implied preemption

Question 6

Express preemption

Answer 6

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

Question 7

Implied preemption - conflict between state and law

Answer 7

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

Question 8

Implied preemption - prevents achievement of objective

Answer 8

If a state or local law prevents achievement of a federal objective, it will also be held to be impliedly preempted

True even if the state law was enacted for some valid purpose and not to frustrate the federal law

Question 9

Implied preemption - field preemption

Answer 9

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

Courts will look at the regulator scheme to determine whether Congress intended to preempt the entire field

Question 10

Privileges and Immunities clause generally

Answer 10

Article IV privileges and immunities clause prohibits discrimination by a state against nonresidents

Corporations and aliens are not protected by this Clause

But only important commercial activities and fundamental rights protected

Question 11

What privileges and immunities clause protects

Answer 11

Article IV P&I clause prohibits discrimination by a state against nonresidents of the state when the discrimination concerns either important commercial activities (like pursuit of livelihood) or fundamental rights

Applies only if the discrimination is intentionally protectionist in nature

Question 12

Privileges and Immunities - burdens important commercial activity / fundamental right

Answer 12

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

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

Question 13

Privileges and Immunities and Dormant Commerce clause

Answer 13

They may apply different standards and produce different results, but they tend to mutually reinforce each other

So should both be considered in analyzing bar exam questions

Question 14

Fourteenth Amendment Privileges or Immunities

Answer 14

States may not deny their citizens the privileges or immunities of national citizenship
- right to petition Congress for redress
- right to vote for federal officers
- right to interstate travel

Corporations not protected

Question 15

Dormant Commerce Clause

Answer 15

Even when congress has not acted, the commerce clause restricts state regulation of interstate commerce

States may not favor local economic interests or unduly burden interstate commerce

Exceptions

Question 16

States’ ability over commerce when congress regulates interstate commerce

Answer 16

When Congress regulates interstate commerce, conflicting state laws are superseded and even nonconflicting state or local laws in the same field may be preempted

Question 17

State regulation of commerce in absence of congressional action

Answer 17

If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce

However, state / local gov must not discriminate against or unduly burden interstate commerce
- if does, violate the commerce clause

Question 18

State or local regulations that discriminate against interstate commerce

Answer 18

State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid
- ex: NY cannot ban CA wines or tax them at a higher rate than local wines

Important state interest

May also violate the Privileges and immunities Clause or Equal Protection

Question 19

Discriminatory state or local law - state interest

Answer 19

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

Question 20

Nondiscriminatory law but burdens interstate commerce

Answer 20

If a nondiscriminatory star law (law that treats local and out of state interests alike) burdens interstate commerce, it will be valid unless the burden outweighs the promotion of a legitimate local interest

Court will consider whether less restrictive alternatives are available

Question 21

Congressional approval and dormant commerce clause

Answer 21

Congress may permit state regulations that would otherwise violate the dormant commerce clause
- and can prohibit state regulations that could otherwise be upheld under it

Congress may not permit states to violate other constitutional provisions

Question 22

Dormant commerce clause - state as market participant

Answer 22

A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses

However, once a state sells state-owned resources, it cannot control what happens to the resource after that

Question 23

Bar exam question involves state regulation that affects free flow of interstate commerce (CMR exam tip) - do what

Answer 23

When a bar exam question involves a state regulation that affects the free flow of interstate commerce, should ask

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 commerce, it will be invalid if the burden on commerce outweighs the state’s interest