Federalism

Question 1

What is the effect of the Supremacy Clause?

Answer 1

Federal laws takes supremacy over state law.

Question 2

What is Express Preemption?

Answer 2

When a federal statute explicitly states that the federal law is exclusive in the field

Question 3

When can Implied Preemption still be found, even though the Federal law is silent on its supremacy?

Answer 3

— The two laws are mutually exclusive

— State law impedes the achievement of the federal law objectives

OR

— Congress evidences a clear intent to occupy the field

Question 4

Can States enact laws that results in the Federal Government activity being taxed?

Answer 4

No

Question 5

What is the Article 4 Privileges and Immunities Clause?

Answer 5

Prohibits discrimination by a state against non-residents

Question 6

What is the 14th Amendment Privileges and Immunities Clause?

Answer 6

Relates to the states denying their citizens the right to travel, (so it’s rarely the correct answer on the MBE)

Question 7

Are corporations and aliens protected by the 4th Amendment Privileges and Immunities Clause?

Answer 7

No, only individuals

Question 8

To which two type of rights/actions does the 4th Amendment Privileges and Immunities Clause apply?

Answer 8

FUNDAMENTAL rights

And

Important Economic Activities

Question 9

What is the Dormant Commerce Clause?

Answer 9

A State or local law is unconstitutional if it places an UNDUE BURDEN on state commerce

Question 10

Can a State regulate interstate commerce?

Answer 10

Yes, but such regulation cannot create negative implications of the commerce clause.

Question 11

How will you know whether you’re being tested on the Negative Implications of the Commerce clause/Dormant Commerce Clause or the Commerce Power?

Answer 11

If it’s a state or local law that infringes on commerce, focus on the Dormant Commerce Clause.

If Congress is acting, then focus on the Commerce Power.

Question 12

Does the Dormant Commerce Clause require discrimination against out-of-staters for it to apply?

Answer 12

No, there just needs to be a burden on interstate commerce.

Question 13

Are there any exceptions to the Dormant Commerce Clause?

Answer 13

Yes:

— Congressional Approval

— Market Participation (e.g. state grants)

— Important, Non-Economic State Interest

Question 14

If the Government is burdening interstate commerce, when could this be acceptable?

Answer 14

If the court determines that the benefit of doing so exceeds the burden

Question 15

State the Outline for tackling an essay question on the whether a State or local government action discriminates against our-of-staters.

Answer 15

1. Does the state/local law discriminate against out-of-staters or treat them differently to local citizens

2(A). If it DOES NOT, then the Privileges and Immunities Clause does not apply.

2(B). So then you consider the Dormant Commerce Clause to understand whether the law still burdens interstate commerce.
— Weigh burden vs. benefit

3. If the law DOES discriminate against out-of-staters, then APPLY Article 4 Privileges and Immunities Clause

3(A). Discriminates because it Burdens Interstate Commerce.
— Is it necessary to achieve an important government purpose?
— There is no less discriminatory law that could achieve its objective.
— Remember Exceptions: (i) Congressional approval; (ii) market exception; and (iii) important, non-economic state interest

3(B). Discriminates because it interferes with out-of-stater’s ability to earn a living.
— Is it Necessary to achieve an important government purpose?

Question 16

What three things do you need to know about a state’s ability to tax interstate commerce?

Answer 16

1. States cannot use their tax system to help in-state businesses
2. States can only tax activities that have a substantial nexus to their state
3. State taxation of interstate companies must be fairly apportioned

Question 17

Who can provide advisory opinions?

Answer 17

Only State courts can advise on an applicant on how to interpret the law; not Federal courts.

Question 18

Does the Full Faith and Credit Clause apply to States only, Federal Government only, or both?

Answer 18

States only.

Question 19

What does the Full Faith and Credit Clause (of Article 4) provide?

Answer 19

That each state shall give full faith and credit to the judicial proceedings of every other state.

Question 20

What are the three requirements for the Full Faith and Credit Clause to apply to a judicial proceeding of another state court?

Answer 20

1. Court must have had SUBJECT MATTER JURISDICTION over the claim
   The
2. PERSONAL JURISDICTION over the parties, AND
3. Must have been a FINAL JUDGMENT on its merits.