Federalism Flashcards
What is preemption?
The Supremacy Cl states that the Const AND the laws/treaties made p/t it are the SUPREME LAW OF THE LAND
Valid federal law/treaties OVERRIDES (preempts) inconsistent state law
State law that has a HIGHER std than the federal law is OK as you can comply with BOTH
What are 3 key ways in which preemption can operate to override an inconsistent state law?
1) Express preemption: When Congress has authority to act, it can state that its pwr is EXCLUSIVE in a field; all state/local laws in that area are preempted
2) Implied preemption: nws silence in the statute, state/local laws can be preempted IF…it is impossible for someone to SIMULTANEOUSLY comply w/ both fed and state laws
NOTE: General rule is that states can grant their citizens GREATER PROTECTIONS (i.e. more strict), UNLESS
(i) Congress intended otherwise
(ii) state law impedes achievement of a federal OBJECTIVE (i.e. “field preemption”)
(iii) Congress evidences a clear INTENT to preempt state law (e.g. fed immigration law)
3) Intergovernmental immunity: States may not tax/regulate the fed gov’t for a federal activity
What is the Dormant commerce cl?
Negative implications of the commerce cl
It’s the principal that state/local laws are unconstitutional IFthey place an UNDUE burden on interstate commerce
What is the Privileges and Immunities Cl of Art. IV?
No state of municipality may deny CITIZENS OF OTHER STATES the privileges and immunities it affords ITS OWN CITIZENS w/o a substantial justification
NOTE: corporations and aliens CANNOT sue under P&I of Art. IV (CITIZENS only)
E.g. Can regulate that police officers have to live in state
Non-E.g. Can’t regulate that city contracting project require certain % of locals
What is the Privileges and Immunities cl of the 14th Am?
Preserves a person’s RIGHT TO TRAVEL from one state to another
NOTE: Durational residence requirements often fails under STRICT SCRUTINY (e.g. must be in state 1 year
What is the proper analysis if a state/local law does NOT discriminate against out-of-staters?
FIRST: the Privileges and Immunities Cl of Art. IV DOES NOT APPLY (b/c there is NO discrimination)
SECOND: If the law burdens interstate commerce, it violates the Dormant Commerce Cl IF its BURDEN on interstate commerce outweighs the BENEFITS of the law
What is the proper analysis if a state/local law DOES discriminate against out-of-staters?
FIRST: If the law discriminates vs. out-of-staters w/ regard to important economic activities(e.g. earning a wage) OR civil liberties, the law violates the P&I Cl of Art. IV, UNLESS it is NECESSARY to achieve an important gov’t purpose
SECOND: If the law discriminatory law burdens interstate commerce, it violates the Dormant Commerce Cl UNLESSit is
(i) NECESSARY to achieve an important gov’t purpose; AND
(ii) the gov’t has shown that there is NO LESS discriminatory alternative
TWO EXCEPTIONS where law would be upheld NWS:
(i) If Congress approves the law then it’s OK
(ii) State is a market participant (where the state/local gov’t CAN prefer its own citizens in receiving benefits form gov’t programs OR dealing w/ gov’t owned businesses)
When can a state tax interstate commerce?
A state may ONLY tax activities IF:
1) A subtl nexus b/t the product or activity to be taxed AND the state
2) It’s not based solely on interstate commerce AND
3) it is fairly apportioned
States may NOT use their tax systems to help in-state businesses (e.g. a tax credit IF purchase ethanol from an in-state business)
What is the requirement of Full Faith and Credit?
Cts in one state MUST give “full faith and credit”(that is they MUST ENFORCE all jdmts of cts in another state), SO LONG AS…
1) the ct that rendered or issued the jdmt had pjx AND smjx;
2) the jdmt was on the merits; AND 3) the jdmt was final
What factors do courts consider regarding whether fed law preempts state law?
(i) Was preemption clear and manifest purpose of Congress;
(ii) Comprehensiveness of fed program or existence of fed agency; and
(iii) Whether field traditionally within power of states.
When can a state tax ad valorem?
When the item arrives into the state
Who has the burden of establishing that an instrumentality has acquired a taxable situs outside his domiciliary state?
Taxpayer
NOTE: State MAY apportion tax based on: (i) miles traveled within the state compared to the miles traveled out of state and/or (ii) average number of instrumentalities in the state on tax day.
