Federalism

Question 1

Relative spheres of federal and state powers - exclusive federal powers - power of states expressly limited

Answer 1

Some enumerated powers are exclusively federal because the constitution limits or prohibits the use of the power by the states. For example, treaty power or coinage of money.

Question 2

Relative spheres of federal and state powers - exclusive federal powers - inherent federal powers

Answer 2

Other enumerated powers are exclusively federal because the nature of the power itself is such that it can only be exercised by the federal government. For example, declaration of war or federal citizenship.

Question 3

Relative spheres of federal and state powers - exclusive state powers - generally

Answer 3

Under the 10th amendment, all powers, not granted to the federal government or prohibited to the states are reserved to the states or the people. Note, however, the federal powers are given an expensive interpretation, and thus little power is exclusive.

Question 4

Relative spheres of federal and state powers - exclusive state powers - states have general police powers

Answer 4

The fact of the 10th 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 suspect or quasi suspect classification.

Question 5

Anti-commandeering principle - tax or regulation applying only to the states

Answer 5

The 10th amendment limits, Congress is power to require the states to act in a particular way. In other words, Congress can’t come, dear, the states by requiring them to enact state laws or enforce federal laws.

Similarly, if Congress passes attacks 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. 

Question 6

Anti-commandeering principle - non-coercive spending conditions

Answer 6

Not spending conditions are problematic. Non-coercive spending conditions don’t violate the anti-commandeering principle. These conditional grants are sometimes referred to as grants with strings attached.

Congress can incentivize state or local officials to voluntarily assist in administering state laws by providing federal dollars for doing so. For example, background checks or immigration enforcement.

Question 7

Anti-commandeering principle - exception to taxes or regulations applying only to the state

Answer 7

Under the 14th amendment enforcement powers, Congress may restrict states from discriminating and violation of equal protection or depriving rights protected by due process

Question 8

-commandeering principle - tax or regulation applying both to state and private entities

Answer 8

The anti-commandeering rule does not apply when Congress regulates an activity in which both the states and private actors engage. Therefore, 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.

Question 9

Relative spheres of federal and state powers - intergovernmental immunities and taxation - state taxation and regulation of federal government

Answer 9

Based on the supremacy clause, states cannot interfere with or control the operations of the federal government. This is often called the intergovernmental immunity doctrine.

Thus, states can’t regulate the federal government or its agents while performing their federal functions. For example, estate can’t require a member of the armed forces to have a drivers license to drive military equipment in the state.

Neither may a state 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.

Question 10

supremacy clause - generally

Answer 10

Because 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. 

Question 11

supremacy clause - express preemption

Answer 11

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 12

supremacy clause - implied preemption - conflict between state and federal law requirements

Answer 12

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 preemptive.

Question 13

supremacy clause - implied preemption - state prevents achievement of federal objective

Answer 13

If a state or local law prevents achievement of a federal objective, it will also be held to be implied preemptive. This is true, even if the state law was inacted for some valid purpose, and not to frustrate the federal law.

For example, state law, providing for suspension of drivers license of person who failed to pay off an auto accident case judgment, regardless of the persons, discharge and bankruptcy, is invalid. 

Question 14

supremacy clause - implied preemption - field preemption

Answer 14

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 non-conflicting. The courts will look at the regulatory scheme to determine whether Congress intended to preempt to the entire field.

For example, if federal laws are comprehensive, or an agency was created to oversee the area, preemption may be found. 

Question 15

supremacy clause - presumption against preemption

Answer 15

In all preemption cases, but especially in cases involving a field traditionally, within the power of the states, like regulations involving health, safety, or welfare, courts will start with a presumption that the historic state police powers are not to be superseded, unless that was the clear and manifest purpose of Congress.

Question 16

Relative spheres of federal and state powers - absence of federal and state powers

Answer 16

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.

Question 17

Relative spheres of federal and state powers - interstate compact clause

Answer 17

The interstate compact clause concerns agreements between the states. If the agreement increases the states power at the expense of the federal power, congressional approval is required.

Question 18

Privileges and Immunities Clause (Art IV) - generally

Answer 18

The article for interstate privileges and immunities clause prohibits discrimination by a state against non-residents.

Note: corporations and aliens are not protected by this clause. In contrast, corporations and aliens are protected by the equal protection and do process clauses the 14th amendment, and they also claim a law violates the commerce clause.

Question 19

Privileges and Immunities Clause (Art IV) - only important commercial activities and fundamental rights protected

Answer 19

The interstate privileges and immunities clause of article for prohibits discrimination by a state against a nonresident 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, estate cannot charge a nonresident commercial fisherman substantially more for commercial fishing license than resident commercial fisherman.

Question 20

Privileges and Immunities Clause (Art IV) - important state interest required

Answer 20

If the state law burdens and 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 nonresident either caused 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 21

Privileges and Immunities Clause (Art IV) - relationship to commerce clause

Answer 21

Although the article for privileges and immunities clause and the dormant commerce clause may apply different standards and produce different results, they tend to mutually reinforce each other. Consequently, they both have to be considered an analyzing bar exam questions.

Question 22

14A privileges of national citizenship

Answer 22

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.

Question 23

Regulation of interstate commerce - by congress

Answer 23

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

Question 24

Regulation of interstate commerce - state regulation of commerce in the absence of congressional action

Answer 24

If Congress has not enacted laws regarding the subject, estate 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.this is often reflected as the dormant commerce clause.

Question 25

Regulation of interstate commerce - state regulation of commerce in the absence of congressional action - discriminatory regulations

Answer 25

State or local regulations that discriminate against interstate commerce to protect local economic interest are almost always invalid. For example, New York cannot ban California wines, or text them at a higher rate than local wines.

Question 26

Regulation of interstate commerce - state regulation of commerce in the absence of congressional action - discriminatory regulations - important state interest

Answer 26

A discriminatory state or local law may be valid if it is necessary to achieve an important, non-economic state and there are no reasonable nondiscriminatory alternatives available.

For example, state code prohibit importation of live bait fish because parasites could have a detrimental affect on its own fish population. However, a state could not prohibit export of live bait fish when no major state interest would be involved.

Question 27

Regulation of interstate commerce - state regulation of commerce in the absence of congressional action - nondiscriminatory laws

Answer 27

If a nondiscriminatory state law, that is a law that treats local and out of state interest alike, burdens interstate commerce, it will be valid unless the burden outweighs the promotion of a legitimate local interest. The court will consider whether less restrictive alternatives are available.

For example, an Iowa statute banning trucks over 60 feet was held to be invalid because the state showed no significant evidence of increase safety and the burden on commerce was substantial.

Question 28

Regulation of interstate commerce - state regulation of commerce in the absence of congressional action - nondiscriminatory laws - state control of corporations

Answer 28

A different standard may apply to statutes adopted by the state of incorporation, regulating the internal governance of a corporation. 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.

Question 29

Regulation of interstate commerce - state regulation of commerce in the absence of congressional action - exceptions - congressional approval

Answer 29

Congress may permit state regulations that would otherwise violate the dormant commerce clause. Likewise, Congress may prohibit state regulations that could otherwise be a palled under the commerce clause. Congress may not, however, permit states to violate other constitutional provisions. 

Question 30

Regulation of interstate commerce - state regulation of commerce in the absence of congressional action - exceptions -state as market participant

Answer 30

They state or local government may prefer its own citizens in receiving benefits from government programs or and 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 resources after that.

For example, Alaska violated the commerce clause when it imposed a contractual requirement on purchases of state owned timber that the timber be processed in Alaska before being shipped out of state.

Question 31

Regulation of interstate commerce - state regulation of commerce in the absence of congressional action - exceptions - favoring government performing traditional government functions

Answer 31

The Supreme Court applies a more lenient standard when a law favors government action that involves a performance of a traditional government function, such as waste disposal. Discrimination against interstate commerce in such a case is permissible because it is likely motivated by legitimate objectives rather than economic protectionism.

Question 32

21A State control over intoxicating liquor - intrastate regulation

Answer 32

Given the 21st amendment, state governments have wide latitude over the importation of liquor and the conditions under which it is sold or used within the state. However, regulations that constitute only an economic preference for local liquor manufacturer may violate the commerce clause.

Question 33

21A State control over intoxicating liquor - interstate regulation

Answer 33

Liquor in interstate commerce is subject to the commerce clause

Question 34

21A State control over intoxicating liquor - federal power

Answer 34

Congress may regulate economic transactions involving liquor, for example, sales of alcoholic beverages, through the federal commerce power like antitrust laws or by conditioning grants of money. For example, highway funds given only to states with a minimum drinking age of 21.

Question 35

Regulation of foreign commerce

Answer 35

With a few minor exceptions, the power to regulate foreign commerce lies exclusively with Congress. 

Question 36

Power of states to tax interstate commerce - generally

Answer 36

The same general considerations that apply to state regulation of commerce apply to state taxation of commerce. Congress has complete power to authorize or forbid state taxation that affects interstate commerce.

Question 37

Power of states to tax interstate commerce - discriminatory taxes

Answer 37

Unless authorized by Congress, state taxes that discriminate against interstate commerce, for example, tax on out-of-state businesses, higher than tax on in-state businesses, violate the commerce clause. Note that these taxes may also violate other constitutional provisions like the privileges and immunities clause or the equal protection clause.

Question 38

Power of states to tax interstate commerce - nondiscriminatory taxes

Answer 38

A nondiscriminatory tax will be valid if the following requirements are met:

Substantial Nexus: to be valid, the tax must apply to an activity having a substantial Nexxus to the taxing state. A substantial Nexxus exist when a business itself to the privileges of doing business in the state. Physical presence in the state is not necessary.

Fair Apportionment: to be valid, the tax must be fairly apportioned, according to a rational formula. However, the taxpayer has the burden of proving unfair apportionment. This may also violate equal protection.

Fair relationship: to be valid, the tax must be fairly related to the services or benefits, provided by the state.

Question 39

Power of states to tax interstate commerce - use taxes - permissible in buyer’s state

Answer 39

Use tax are imposed on goods purchased outside the state but used within it. They are valid.

Question 40

Power of states to tax interstate commerce - use taxes - state may force seller to collect use tax

Answer 40

An interstate seller may be required to collect a used tax if the seller has a substantial nexus with the taxing state. For example, it maintains offices in the taxing state. A physical presence is not required to establish a substantial nexus. 

Question 41

Power of states to tax interstate commerce - sales taxes

Answer 41

Sales taxes are taxes imposed on the seller of goods for sales consummated within the state. They generally do not discriminate against interstate commerce, rather the issue usually involves whether there is a substantial Nexxus between the taxpayer and the taxing state or whether the tax is properly apportioned.

Question 42

Power of states to tax interstate commerce - ad valorem property taxes - generally

Answer 42

Ad valorem property taxes are based on the assessed value of the property in question. 

Question 43

Power of states to tax interstate commerce - ad valorem property taxes - no tax on commodities in court of interstate commerce

Answer 43

Commodities in interstate transit, such as widgets in a shipping container on a truck or train, or entirely exempt from state taxation.

When does interstate transportation begin? When the cargo is delivered to an interstate carrier or actually starts its interstate journey

Break in transit: a break in the continuity of transit does not destroy the interstate character of the shipment, unless the break was intended to end or suspend the shipment

When does the interstate shipment end? Usually when the cargo reaches its destination. After that, the goods are subject to local tax.

Question 44

Power of states to tax interstate commerce - ad valorem property taxes - tax on instrumentalities used to transport goods interstate

Answer 44

The validity of ad valorem property taxes, on instrumentalities of commerce, like trucks or airplanes, depend on:

Whether the instrumentality has acquired a taxable situs in the taxing state. That is, whether there are sufficient contact with the taxing state to justify the tax.

And

Whether the value of the instrumentality has been properly apportioned, according to the amount of the contacts with each taxing state. 

Question 45

Power of states to tax interstate commerce - ad valorem property taxes - tax on instrumentalities used to transport goods - taxable situs

Answer 45

An instrumentality has a taxable situs in the state if it receives benefits or protections from the state. There may be more than one taxable situs.

Example: an airplane was held to have a taxable situs in a state, even though the airline owned no other property in the state, because the airline made 18 regularly scheduled flight daily from a rented depot in the state. 

Question 46

Power of states to tax interstate commerce - ad valorem property taxes - tax on instrumentalities used to transport goods - apportionment requirement

Answer 46

A tax apportioned on the value of the instrumentality will be upheld if it fairly approximates the average physical presence of the instrumentality in the taxing state. The taxpayers domiciliary state tax, the full value of instrumentalities used in interstate commerce, unless the taxpayer can prove that defined part of the tax item has acquired a taxable site elsewhere. 

Question 47

Power of states to tax interstate commerce - privilege, license, franchise, or occupational taxes

Answer 47

These so-called doing business taxes are generally permitted. Such taxes may be measured by a flat amount or buy a proportional rate based on contact with the taxing state. In either case, the basic requirements must be met: 1) the activity must have a substantial Nexus to the taxing state 2) the tax must be fairly apportioned 3) the attack must not discriminate against interstate commerce 4) and the tax must relate to services provided by the state.

Question 48

Power of states to tax interstate commerce - privilege, license, franchise, or occupational taxes - when a question involves state taxation that affects interstate commerce, you should ask:

Answer 48

Does the question refer to any federal legislation that might forbid the state tax or preempt the Field, or authorize state taxation?

If neither of these possibilities is dispositive, does the state tax discriminate against or unduly burden, the free flow of interstate commerce? If the state tax discriminates or is unduly burdensome, (substantial Nexus, unfair portion, or no fair relationship) it is invalid.

Question 49

Power of states to tax foreign commerce

Answer 49

The import-export clause and the commerce clause greatly limit the states power tax foreign commerce. 

Question 50

Inter-sovereign litigation - suits by US against a state

Answer 50

The United States may sue a state without its consent

Question 51

Inter-sovereign litigation - suits by a state against the US

Answer 51

Public policy forbids a state from suing the United States without its consent. Congress can pass legislation of permits the United States to be sued by a state in given situations. 

Question 52

Inter-sovereign litigation - federal officer as defendant - limitation

Answer 52

A suit against the federal officer is deemed to be brought against the United States itself if the judgment saw would be satisfied out of the public treasury or would interfere with public administration, and therefore is barred by sovereign immunity.

Question 53

Inter-sovereign litigation - federal officer as defendant - specific relief against officer

Answer 53

Specific relief against an officer as an individual will be granted, if the officer acted ultra vires, meaning beyond his authority. 

Question 54

Inter-sovereign litigation - suits by one state against another

Answer 54

One state may sue another state without the latter’s consent. The Supreme Court has exclusive original jurisdiction. 

Question 55

Full faith and credit clause

Answer 55

By virtue of the full faith and credit clause, certain state court judgments must be recognized in other states. This rule applies only if:

The court that rendered the judgment has jurisdiction over the parties and the subject matter (if the issue of jurisdiction was litigated in one state, that ruling must be recognized in other states too)

The judge was on the merits

And

The judgment is final