Federalism

Question 1

Explain express federal preemption.

Answer 1

If a federal statute says that federal law is exclusive in the field, it preempts any state law.

Question 2

Does federal law preempt state law if the two statutes are mutually exclusive? Explain.

Answer 2

Yes. If two laws are mutually exclusive, it is impossible to comply with both. Thus, the federal law wins out.

Question 3

If a state law __________________ of a federal objective, federal law preempts.

Answer 3

Impedes the achievement of

Question 4

If Congress evinces ____________________, federal law preempts state law.

Answer 4

A clear intent to preempt state law

Question 5

True or False: States may set environmental standards stricter than the federal gov’t so long as Congress has no prohibited them from doing so.

Answer 5

True

Question 6

States may/may not tax and/or regulate federal gov’t activity.

Answer 6

May not

Question 7

Describe the effect of the dormant commerce clause.

Answer 7

If state or local law places an undue burden on interstate commerce, it will be held unconstitutional unless it is necessary to achieve an important gov’t interest (when discriminatory) OR it benefits outweigh its burdens (when non-discriminatory)

Question 8

What is another phrase the bar examiners might use to make reference to the dormant commerce clause?

Answer 8

Negative Implications of the CC

Question 9

The _________ of Article IV applies only when state or local gov’t is discriminating against out of staters.

Answer 9

Privileges and Immunities Clause

Question 10

The Privileges and Immunities Clause of Article IV only when . . .

Answer 10

Only when state or local gov’t is discriminating against out of staters.

Question 11

The privilege and immunities clause of the 14TH AMENDMENT is ALWAYS the wrong answer unless the question involves. . . .

Answer 11

The question involves the RIGHT TO TRAVEL

Question 12

If a law discriminates against-out-of-staters AND burden interstate commerce, its violates the dormant CC UNLESS which two things a true?

Answer 12

It is necessary to achieve an important government purpose AND there is no less restrictive alternative.

Question 13

Generally, if a law discriminates against-out-of-staters AND burden interstate commerce, its violates the dormant CC UNLESS it is necessary to achieve an important government purpose AND there is no less restrictive alternative. What are the two exceptions?

Answer 13

Congressional approval

Market Participation Exception

Question 14

Explain the Market Participation Exception to the general rule that if a law discriminates against-out-of-staters AND burden interstate commerce, its violates the dormant CC UNLESS it is necessary to achieve an important government purpose AND there is no less restrictive alternative.

Answer 14

A state or local government may prefer its own citizens in receiving benefits from government programs OR in dealing with gov’t-owned businesses.

Question 15

Explain why it is permissible under the dormant CC for a public university to charge less tuition for in-state residents.

Answer 15

Under the Market Participation Exception to the Dormant CC, a state or local government may prefer its own citizens in receiving benefits from government programs OR in dealing with gov’t-owned businesses.

Question 16

If a law does NOT discriminate against out-of-staters but still burdens interstate commerce, it violates the dormant CC if . . .

Answer 16

If its burdens exceed its benefits.

Question 17

If a law discriminates against out-of-staters with regard to their ability to earn a livelihood, it violates the privileges and immunities clause of Article IV unless . . .

Answer 17

It is necessary to achieve an important gov’t purpose.

Question 18

True or false: Corporations can use the privileges and immunities clause of Article IV.

Answer 18

False.

Question 19

True or false: Aliens can use the privileges and immunities clause of Article IV.

Answer 19

False

Question 20

In order to claim protection of the privileges and immunities clause of Article IV, the law must discriminate against out-of-staters AND the discrimination must be with regard . . .

Answer 20

To fundamental rights or important economic activities.

Question 21

Why does an out-of-staters denial of access to document not trigger the P & I protections of Article IV?

Answer 21

Access to documents is not a fundamental right.

Question 22

How do the Dormant CC and the Immunities & Priv. Clause of Article IV differ with respect to corporations and aliens?

Answer 22

Corporations and aliens can sue under DCC

Corporations and aliens cannot sue under P and I

Question 23

How do the Dormant CC and the Immunities & Priv. Clause of Article IV differ with respect to the requirements of discrimination against out of staters?

Answer 23

DCC can, but does not require discrimination against out of staters in order to apply

P and I requires discrimination against out of staters

Question 24

How do the Dormant CC and the Immunities & Priv. Clause of Article IV differ with respect to exceptions?

Answer 24

DCC has two: Congressional Approval and The Market Participant Exception

P and I has none.

Question 25

Aside from the out-of-staters requirement, how do the Dormant CC and the Immunities & Priv. Clause of Article IV differ with respect to what is required to sue thereunder?

Answer 25

DCC requires burden on interstate commerce

P and I requires discrimination with regard to fundamental rights or economic activities.

Question 26

States may/may not use their tax system to help in-state businesses.

Answer 26

May not

Question 27

A state may only tax activities if what exists?

Answer 27

A substantial nexus to the state

Question 28

What must be true of state taxation of interstate businesses?

Answer 28

It must be fairly apportioned.

Question 29

What does full faith and credit mean (ignore elements)?

Answer 29

It means that courts in one state must give full faith and credit to judgments of courts of another state.

Question 30

Full Faith and Credit between states will be granted so long as . . . (3)

Answer 30

The court that rendered the judgment had jurisdiction over the parties and the subject matter (jurisdiction was ok)

The judgment was on the merits

The judgment is final.

Question 31

The basis idea of the P and I Clause of Article VI?

Answer 31

No state shall deny citizens of another state the P and I it accords its own citizens

Question 32

Analysis if the law does not discriminate. The P and I of Article IV does/doesn’t apply.

Answer 32

Doesn’t

Question 33

Analysis if the law does not discriminate. If the law burdens ISC, it violates the dormant CC IF . . .

Answer 33

Its burdens exceed its benefits.

Question 34

Analysis if the law does discriminate against out-of-staters. If the law burdens ISC, it violates the DCC unless . . .

Answer 34

It is necessary to achieve an important gov’t interest.

Question 35

Analysis if the law does discriminate against out-of-staters. If the law discriminates against out-of-staters with regard to their ability to earn a livelihood, it violates the P and I of Article IV unless . . .

Answer 35

It is necessary to achieve an important gov’t interest.

Question 36

If a state or local gov’t action does not discriminate against out-of-staters, balance which two things?

Answer 36

Benefit and burden