Federalism

Question 1

What is the 10th amendment?

Answer 1

• powers not granted to federal govt. or prohibited to states are reserved to states
• gives general police power to states (unlike federal govt.) that get rational basis review unless implicate fundamental right or (quasi) suspect class.

Question 2

What is the anti-commandeering principle?

Answer 2

Congress cannot compel states to administer federal programs.

Question 3

What is the Supremacy Clause?

Answer 3

Federal law (including treaties and E.A.s) pre-empts inconsistent state or local law.

Question 4

What are the two kinds of pre-emption?

Answer 4

Express: congress says so

Implied:

(a) conflict: impossible to follow state and federal law or state law impedes federal law; or
(b) field: congressional intent to occupy the field by extensively regulating

Question 5

What is dormant commerce clause?

Answer 5

prohibits state laws that discriminate against or unduly burden interstate commerce

Question 6

What is the P and I clause of Art. IV?

Answer 6

Prohibits state laws that discriminate against out of state citizens with regards to:

(a) important commercial activities; or
(b) fundamental rights

Question 7

What are the differences between dormant commerce clause and P and I Art. IV?

Answer 7

DCC: protects all out-of-staters in interstate commerce

P and I Art. IV: protects US citizens (not aliens or corp.) in important commercial activities and fundamental rights

Question 8

What is the test for whether something violates Dormant commerce clause?

Answer 8

Discriminatory laws (favoring instate over OOS): invalid unless: (a) necessary to achieve important govt. purpose (unrelated to economic protectionism) and (b) no less discriminatory alternatives available

Non-discriminatory laws (treat in-state the same as OOS): invalid unless: burden on interstate commerce clearly outweighs non-protectionist benefits.

Question 9

What is the test for whether something violates P and I Art. IV?

Answer 9

Discriminatory laws invalid unless:

(a) substantial justification for the different treatment; and
(b) no less restrictive means to solve the problem

Question 10

What is the Privileges or Immunities Clause under 14A?

Answer 10

Protections fundamental right of national citizenship, including:

(a) right to enter state;
(b) equal treatment once become a permanent resident (can be a slight delay)

Question 11

What is the 11th amendment?

Answer 11

Prevents federal courts from hearing most actions by private individuals against states

*very narrow, with lots of exceptions

Question 12

What are the exceptions to the 11th amendment?

Answer 12

• federal govt sue state
• private individuals sue state
• state sue state
• private individual sue state official in equity for violating constitutional right
• private individual sue state official (as long as state official is paying out of own pocket)

Question 13

When is the only time Congress can abrogate the 11th amendment?

Answer 13

Where it passes laws that give private citizens right to sue state under post-Civil War amendments (13A, 14A, 15A)

• law must remedy actual constitutional violations

Question 14

What are the rules for inter-sovereign litigation?

Answer 14

US v. State: US may sue without state’s consent; state cannot sue US without its consent

State v. State: no consent needed. SCOTUS has exclusive, original jx

Question 15

What are the exceptions to the dormant commerce clause (apart from the test)?

Answer 15

• if state is acting as market participant (e.g. buying/selling, hiring labor, giving subsidies)
• when law favors government action that involves the performance of a traditional govt. function (e.g. waste disposal)

Question 16

Are state taxes on interstate commerce valid?

Answer 16

Discriminatory: No, unless authorized by Congress

Non-discriminatory: Valid if (a) substantial nexus to the activity being taxed and the state (e.g. business avails itself of the privilege of doing business in the state), (b) tax is fairly apportioned, and (c) tax is fairly related to the services or benefits provided by the state.

Question 17

Are use taxes (tax on goods used inside state, but purchased outside of it) by states permissible?

Answer 17

• Buyer’s state: if purchased outside of the state and used inside buyer’s state, use taxes are valid.
• Seller’s state: may be required to collect use tax if seller has substantial nexus with the taxing state (e.g. maintains offices in taxing state)

Question 18

Are “doing business” taxes (privilege, license, franchise, occupational) taxes allowable by state?

Answer 18

Yes, if:

• activity taxed must have substantial nexus to taxing state
• tax must be fairly apportioned
• tax can’t discriminate against interstate commerce
• tax must fairly relate to services provided by the state

Question 19

Are ad valorem (tax on the assessed value of some property) taxes valid?

Answer 19

Commodities: valid if property is no longer in interstate commerce

Instrumentalities: valid if instrumentality has taxable situs in state and is fairly apportioned