Federalism Flashcards
Explain express federal preemption.
If a federal statute says that federal law is exclusive in the field, it preempts any state law.
Does federal law preempt state law if the two statutes are mutually exclusive? Explain.
Yes. If two laws are mutually exclusive, it is impossible to comply with both. Thus, the federal law wins out.
If a state law __________________ of a federal objective, federal law preempts.
Impedes the achievement of
If Congress evinces ____________________, federal law preempts state law.
A clear intent to preempt state law
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.
True
States may/may not tax and/or regulate federal gov’t activity.
May not
Describe the effect of the dormant commerce clause.
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)
What is another phrase the bar examiners might use to make reference to the dormant commerce clause?
Negative Implications of the CC
The _________ of Article IV applies only when state or local gov’t is discriminating against out of staters.
Privileges and Immunities Clause
The Privileges and Immunities Clause of Article IV only when . . .
Only when state or local gov’t is discriminating against out of staters.
The privilege and immunities clause of the 14TH AMENDMENT is ALWAYS the wrong answer unless the question involves. . . .
The question involves the RIGHT TO TRAVEL
If a law discriminates against-out-of-staters AND burden interstate commerce, its violates the dormant CC UNLESS which two things a true?
It is necessary to achieve an important government purpose AND there is no less restrictive alternative.
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?
Congressional approval
Market Participation Exception
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.
A state or local government may prefer its own citizens in receiving benefits from government programs OR in dealing with gov’t-owned businesses.
Explain why it is permissible under the dormant CC for a public university to charge less tuition for in-state residents.
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.
If a law does NOT discriminate against out-of-staters but still burdens interstate commerce, it violates the dormant CC if . . .
If its burdens exceed its benefits.
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 . . .
It is necessary to achieve an important gov’t purpose.
True or false: Corporations can use the privileges and immunities clause of Article IV.
False.
True or false: Aliens can use the privileges and immunities clause of Article IV.
False
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 . . .
To fundamental rights or important economic activities.
Why does an out-of-staters denial of access to document not trigger the P & I protections of Article IV?
Access to documents is not a fundamental right.
How do the Dormant CC and the Immunities & Priv. Clause of Article IV differ with respect to corporations and aliens?
Corporations and aliens can sue under DCC
Corporations and aliens cannot sue under P and I
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?
DCC can, but does not require discrimination against out of staters in order to apply
P and I requires discrimination against out of staters
How do the Dormant CC and the Immunities & Priv. Clause of Article IV differ with respect to exceptions?
DCC has two: Congressional Approval and The Market Participant Exception
P and I has none.
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?
DCC requires burden on interstate commerce
P and I requires discrimination with regard to fundamental rights or economic activities.
States may/may not use their tax system to help in-state businesses.
May not
A state may only tax activities if what exists?
A substantial nexus to the state
What must be true of state taxation of interstate businesses?
It must be fairly apportioned.
What does full faith and credit mean (ignore elements)?
It means that courts in one state must give full faith and credit to judgments of courts of another state.
Full Faith and Credit between states will be granted so long as . . . (3)
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.
The basis idea of the P and I Clause of Article VI?
No state shall deny citizens of another state the P and I it accords its own citizens
Analysis if the law does not discriminate. The P and I of Article IV does/doesn’t apply.
Doesn’t
Analysis if the law does not discriminate. If the law burdens ISC, it violates the dormant CC IF . . .
Its burdens exceed its benefits.
Analysis if the law does discriminate against out-of-staters. If the law burdens ISC, it violates the DCC unless . . .
It is necessary to achieve an important gov’t interest.
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 . . .
It is necessary to achieve an important gov’t interest.
If a state or local gov’t action does not discriminate against out-of-staters, balance which two things?
Benefit and burden
