Federalism

Question 1

What is preemption?

Answer 1

The Supremacy Clause states that the Constitution AND the laws/treaties made pursuant to it are the SUPREME LAW OF THE LAND

Bottom line: valid federal law/treaties OVERRIDES (preempts) inconsistent state law

A state law that has a HIGHER standard than the federal law is OK as you can comply with BOTH

Question 2

What are key ways in which preemption can operate to override an inconsistent state law?

Answer 2

1) Express preemption: When Congress has authority to act, it can state that its power is EXCLUSIVE in a field; all state/local laws in that area are preempted
2) Implied preemption: notwithstanding silence in the statute, state/local laws can be preempted if
a) It is IMPOSSIBLE TO SIMULTANEOUSLY COMPLY with both laws

** NOTE: general rule is that states can grant their citizens GREATER PROTECTIONS, UNLESS Congress intended otherwise

b) the state law impedes the achievement of a federal OBJECTIVE (i.e. “field preemption”)
c) Congress evidences a clear INTENT to preempt state law (e.g. fed immigration law)
3) Intergovernmental immunity: States may not tax/regulate the fed government for a federal activity

Question 3

What is the dormant commerce clause?

Answer 3

AKA Negative implications of the commerce clause

It’s the principal that state/local laws are unconstitutional IFthey place an UNDUE burden on interstate commerce

Question 4

What is the privileges and immunities clause of Art. IV?

Answer 4

No state of municipality may deny CITIZENS OF OTHER STATES the privileges and immunities it affords ITS OWN CITIZENS without a substantial justification

NOTE: corporations and aliens CANNOT sue under PIC (CITIZENS only)

E.g. can regulate that police officers have to live in state

Question 5

What is the privileges and immunities clause of the 14A?

Answer 5

Preserves a person’s RIGHT TO TRAVEL from one state to another

Question 6

What is the proper analysis if a state/local law does NOT discriminate against out-of-staters?

Answer 6

FIRST: the Privileges and Immunities Clause of Art. IV DOES NOT APPLY because there is NO discrimination

SECOND: If the law burdens interstate commerce, it violates the Dormant Commerce Clause IF its BURDEN on interstate commerce outweighs the BENEFITS of the law

Question 7

What is the proper analysis if a state/local law DOES discriminate against out-of-staters?

Answer 7

FIRST: if the law discriminates vs. out-of-staters with regard to important economic activities(e.g. earning a wage) OR civil liberties, the law violates the PIC of Art. IV, UNLESS it is NECESSARY to achieve an important government purpose

SECOND: If the law discriminatory law burdens interstate commerce, it violates the Dormant Commerce Clause UNLESSit is

(i) NECESSARY to achieve an important gov’t purpose; AND
(ii) the government has shown that there is NO LESS discriminatory alternative

TWO EXCEPTIONS: 1) If Congress approves the law then it’s OK
2) The state is a market participant (the state/local government can prefer its own citizens in receiving benefits from government programs OR dealing with government owned businesses)

Question 8

When can a state tax interstate commerce?

Answer 8

A state may only tax activities if there is a SUBSTANTIAL NEXUS between the product or activtity to be taxed and the state

States may not use their tax systems to help in-state businesses (e.g. a tax credit IF purchase ethonol from an in-state business)

State taxation of interstate business must be FAIRLY APPORTIONED

Question 9

What is the requirement of Full Faith and Credit?

Answer 9

Courts in one state MUST give full faith and credit(that is they must ENFORCE all judgments of courts in another state), SO LONG AS…

1) the court that rendered or issued the judgment had jurisdiction;
2) the judgment was on the merits; AND
3) the judgment was final