Federalism

Question 1

Exclusive Federal Powers

Answer 1

• some enumerated powers are exclusively federal because Constitution limits prohibits the use of the power by states
  -> ex: treaty power, coinage of money
• inherent federal powers - exclusively federal b/c nature of the power itself is such that it can be exercised only by the federal government

Question 2

Exclusive State Powers

Answer 2

• under 10th Am, all powers not granted to fed gov or prohibited to states are reserved to the states or the people
  -> book notes though that fed powers are given pretty expansive interpretation, so little state power is exclusive
• states have general police powers -> can regulate health, welfare, + safety of their people

Question 3

Anti-Commandeering Principle

Answer 3

• Congress can’t commandeer states by requiring them to enact certain state laws or enforce federal laws
• book notes that it’s possible Court would use 10th Am to prohibit a tax that doesn’t apply to private businesses but merely taxes state gov entities
• Congress is allowed to impose non-coercive spending conditions though (grants with strings attached
• also exception for 14th Am - Congress can restrict states from discriminating in violation of equal protection or depriving rights protected by due process

Question 4

Taxes + Regs Applying to Both State and Private Entities

Answer 4

• valid (anti-commandeering rule doesn’t apply)
• Congress can subject states + local gov activities to regulation or taxation if the law or tax applies to both the public sector and the private sector

Question 5

State Taxation and Regulation of Fed Gov

Answer 5

• intergovernmental immunity doctrine: states can’t interfere w/ or control operations of fed gov (based on Supremacy Clause)
  -> means states can’t regulate fed gov or its agents while performing their fed functions
  -> also means states can’t tax federal instrumentalities without the consent of Congress
• nondiscriminatory, indirect taxes are okay though if they don’t unreasonably burden the fed gov (ex: state income tax on fed employees)

Question 6

Supremacy Clause - Basic Effect

Answer 6

• fed law may supersede or preempt state or local laws
• includes Constitution, fed statutes + regs, treaties, + executive agreements

Question 7

Express Preemption

Answer 7

• a federal law may expressly say that the states may not adopt laws concerning the subject matter of the federal legislation
• such clauses are narrowly construed

Question 8

Implied Preemption

Answer 8

Occurs when:
- conflict between state + fed law requirements, such that it’s impossible to follow both
- state prevents achievement of fed objective
- field preemption: federal law impliedly “occupies” the entire field -> bars state or local law even if nonconflicting
-> court looks at regulatory scheme to determine where Congress intended to preempt entire field (looks at comprehensiveness or if agency was created to oversee the area)

Question 9

Presumption Against Preemption

Answer 9

• in all preemption cases, courts start w/ presumption that historic state police powers are not to be superseded unless that was the clear + manifest purpose of Congress

Question 10

Absence of Federal and State Powers

Answer 10

• some powers are denied to both Congress + state govs
  -> ex: qualifications for serving in Congress are set by Constitution + can’t be altered by Congress or the states

Question 11

Interstate Compact Clause

Answer 11

• deals with agreements between states
• if the agreement increases the states’ power at the expense of the federal power, congressional approval is required

Question 12

Article IV Privileges Clause - Basic Concept

Answer 12

• Article IV Interstate Privileges + Immunities Clause prohibits discrimination by a state against NONRESIDENTS
• ## note that this clause does not protect corporations and non-citizens (although the 14th Am Equal Protection and Due Process clauses do)

Question 13

Article IV - Privileges Protected

Answer 13

• only protects important commercial activities (ex: pursuit of a livelihood) and fundamental rights
• applies only if the discrimination is intentionally protectionist in nature

Question 14

Article IV - Standard of Review for State Laws

Answer 14

• if state law burdens an important commercial activity or fundamental right, it’s 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 + that there are no less restrictive means to solve it

Question 15

Article IV + Dormant Commerce Clause

Answer 15

• book notes that they apply different standards + produce different results, BUT they tend to mutually reinforce each other + therefore both need to be considered in analyzing bar exam questions

Question 16

Privileges of National Citizenship

Answer 16

-protected by the FOURTEENTH Amendment
- states can’t deny these privileges to their own citizens
- ex: right to vote for fed officers, right to petition Congress for redress of grievance, + right to interstate travel
- corporations are NOT protected by this Clause

Question 17

Regulation of Interstate Commerce

Answer 17

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

Question 18

State Regulation of Commerce in the Absence of Congressional Action

Answer 18

• if Congress hasn’t enacted laws regarding the subject, a state or local gov may regulate local aspects of interstate commerce
• to do so, state or local gov must not discriminate against or unduly burden interstate commerce -> Dormant Commerce Clause

Question 19

Dormant Commerce Clause - Discriminatory Regulations

Answer 19

• state or local regs that discriminate against interstate commerce to protect local economic interests are almost always invalid
• in order to be valid, would need to be necessary to achieve an important noneconomic state interest and have no reasonable nondiscriminatory alternatives available

Question 20

Dormant Commerce Clause - Nondiscriminatory Laws

Answer 20

• if a nondiscriminatory state law burdens interstate commerce, it will be valid UNLESS the burden outweighs the promotion of a legitimate local interest
• in balancing, court will consider whether less restrictive alternatives are available

Question 21

State Control of Corporations

Answer 21

• book notes that a standard different from normal Dormant Commerce Clause one may apply to statutes adopted by the state of incorporation regulating the internal governance of a corporation
  -> concept that states have long history of + strong interest in regulating internal governance of the corporations that they create -> even a statute that heavily impacts interstate commerce may be upheld

Question 22

Exceptions to Dormant Commerce Clause

Answer 22

• Congress can permit state regulations that would otherwise violate the Dormant Commerce Clause, + can prohibit regs that would otherwise be upheld under Dormant Commerce Clause
• “market participant” - state or local gov can prefer its own citizens in receiving benefits from gov programs or in dealing with gov-owned businesses
  -> can’t control state-owned resources after it has sold them though
• favoring government performing traditional gov functions (ex: waste disposal)

Question 23

21st Amendment

Answer 23

• gives state govs wide latitude over importation of liquor + the conditions under which it is sold or used w;/in the state
• regs that constitute only an economic preference for local liquor manufacturers may violate the Commerce Clause though, + liquor in interstate commerce is subject to the Commerce Clause
• Congress can still regulate economic transactions involving liquor through commerce power + by conditioning grants of money

Question 24

Power of States to Tax Interstate Commerce

Answer 24

• Congress has complete power to authorize or forbid state taxation that affects interstate commerce
• the same general concerns that apply to state regulation of commerce also apply to state taxation of it
  -> discriminatory taxes violate Commerce Clause unless authorized by Congress

Question 25

Nondiscriminatory Taxes on Interstate Commerce

Answer 25

Valid if:
- substantial nexus - tax must apply to an activity having a substantial nexus to the taxing state (business avails itself of the privilege of doing business in the state, physical presence unnecessary)
- fair apportionment - tax must be fairly apportioned according to a rational formula (though taxpayer bears burden of proving unfair apportionment)
- fair relationship - tax fairly related to the services or benefits provided by the state

Question 26

Use Taxes

Answer 26

• taxes imposed on goods purchased outside the state but used within it -> valid
• state may force seller to collect use tax

Question 27

Sales Tax

Answer 27

• taxes imposed on the seller of goods for sales consummated within the state
• generally don’t discriminate against interstate commerce
  -> any issues usually involve whether there’s a substantial nexus between the taxpayer and the taxing state or whether the tax is properly apportioned

Question 28

Ad Valorem Property Taxes

Answer 28

• taxes based on the assessed value of the property in question
• commodities in interstate transit are entirely exempt from state taxation
• seems like you can tax instrumentalities (ex: trucks) used to transport goods interstate though -> to be valid, depends on whether the instrumentality has acquired a “taxable situs” in the taxing state (whether there are sufficient contacts with the taxing state to justify the tax) + whether the value of the instrumentality has been properly apportioned according to the amount of the contacts with each taxing state

Question 29

Privilege, License, Franchise or Occupational Taxes

Answer 29

• “doing business” taxes -> generally permitted

Basic requirements:
1) the activity taxed must have a substantial nexus to the taxing state
2) the tax must be fairly apportioned
3) the tax must not discriminate against interstate commerce
4) the tax must fairly relate to services provided by the state

Question 30

Intersovereign Litigation

Answer 30

• US may sue a state without its consent
• BUT states can’t sue US w/o its consent
• one state may sue another without its consent

Question 31

Federal Officers as Defendants

Answer 31

• a suit against a fed officer is deemed to be brought against the US itself if the judgment sought would be satisfied out of the public treasury or would interfere with public administration and therefore is barred by sovereign immunity
• specific relief against an officer as an individual will be granted if the officer acted ultra vires (beyond his authority)

Question 32

Full Faith and Credit Clause

Answer 32

• certain state court judgments must be recognized in other states

Applies only if:
- the court that rendered the judgment had jurisdiction over the parties and the subject matter
- the judgment was on the merits AND
- the judgment is final