Federalism

Question 1

What are the four broad federalism issues?

Answer 1

1. Preemption
2. Dormant commerce clause/privileges and immunities
3. State taxation of interstate commerce
4. Full faith and credit

Question 2

What are the three types of preemption?

Answer 2

Express preemption (federal law says its exclusive)

Implied preemption (federal law completely dominates in an area)

States may not tax or regulate federal government activity (may not pay a state tax from federal treasury)

Question 3

What are the rules for implied preemption?

Answer 3

1. If federal and state laws are mutually exclusive, federal law wins (States may set stricter environmental laws, unless Congress doesn’t prohibit)
2. If state law impedes the achievement of a federal objective, federal law wins
3. If Congress evidences a clear intent to preempt state law, federal law wins (immigration law fully occupies its field)

Question 4

What is the Dormant Commerce Clause?

Answer 4

A law is invalid if it places an undue burden on interstate commerce

Question 5

What is the Art. 4 P&I clause?

Answer 5

No state shall deny out-of-state persons the privileges and immunities it affords its own citizens.

(Anti-discrimination provision)

Question 6

What is the 14A P or I clause?

Answer 6

Protects right to travel

Question 7

When does P/I clause apply?

Answer 7

Only when a state or local government is discriminating against an out-of-state person

Question 8

How do you determine whether a state law discriminates against out of staters?

Answer 8

Does it treat OOS citizens from IS ones?

Question 9

How does the DCC or P&I analysis proceed if: law does NOT discriminate against out-of-staters?

Answer 9

1. A4 P&I does not apply

2. If law burdens interstate commerce, it violates the DCC if burdens exceed benefits

Question 10

How does the DCC or P&I analysis proceed if: law DOES discriminate against out-of-staters?

Answer 10

1. If law burdens interstate commerce, it violates the DCC, unless necessary to achieve an important government purpose (must be no less restrictive means; see also exceptions)
2. If the law discriminates against out-of-staters with regard to their ability to earn their livelihood, it violates P/I unless necessary to achieve important government purpose

Question 11

What are the exceptions to state burdens on interstate commerce?

Answer 11

1. Congressional approval
2. Market participant exception (may prefer own citizens in dealing with government-owned businesses/institutions, e.g., state college can charge IS residents less than OOS residents)

Question 12

How is an Art. 4 P&I question analyzed on the bar exam?

[this card makes explicit the parts of the Market Participant Exception in the “exceptions to state burdens” card]

Answer 12

1. The law must discriminate against out-of-staters
2. The discrimination must be with regard to fundamental rights or important economic activities (ability to earn a living)
3. Corporations and aliens cannot use the P/I clause
4. The discrimination must be necessary to achieve an important government purpose (no less restrictive means)

Question 13

What are the rules for state taxation of interstate commerce?

Answer 13

1. States may not use their tax systems to help in-state businesses
2. A state may only tax activities if there is a substantial nexus to the state
3. State taxation of interstate businesses must be fairly apportioned

Question 14

Full faith and credit: courts in one state must give full faith and credit to judgments of courts in another state, provided that: (3 things)

Answer 14

1. The court that rendered the judgment had jurisdiction over the parties and the subject matter;
2. The judgment was on the merits; AND
3. The judgment is final

Question 15

What is the first question in the analysis of whether DCC or P&I applies?

Answer 15

Does this law discriminate against OOS citizens?