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Constitutional Law > Federalism > Flashcards

Federalism Flashcards

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1
Q

What is preemption?

A

Federal law trumps state law because the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.

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2
Q

What part of the Constitution states that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land?

A

The Supremacy Clause of Article VI

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3
Q

if a federal statute says that federal law is exclusive in a field then state and local laws are preempted. What is this describing?

A

Express preemption

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4
Q

What is express preemption?

A

if a federal statute says that federal law is exclusive in a field then state and local laws are preempted.

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5
Q

What are the three circumstances when implied preemption preempts state law?

A
  1. if federal law and state law conflict then Federal law preempts.
  2. If state law impedes the achievement of a federal objective, federal law preempts state law
  3. If Congress evidences a clear intent to preempt state law, federal law preempts state law
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6
Q

Can states tax or regulate the federal government?

A

States may not tax or regulate federal government activity (Inter-governmental immunity)

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7
Q

What is the dormant commerce clause?

A

Principle that a state or local law is unconstitutional if it places an undue burden on interstate commerce. (inferred form commerce clause)

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8
Q

What does the The privileges and immunities clause of Article IV’s say?

A

No state may deprive citizens of other states of the privileges and immunities it accords its own citizens.

(Privileges and immunities must be commercial or civil liberties)

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9
Q

When does the The privileges and immunities clause of Article IV apply?

A

Applies only when state or local government discriminates agaisnt an out of stater

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10
Q

What is the The privileges or immunities clause of the Fourteenth Amendment?

A

Protects the right to travel

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11
Q

What if there is an answer on the MBE stating The privileges or immunities clause of the Fourteenth Amendment?

A

It’s the wrong answer.

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12
Q

What if a state law discriminates against out of staters and burdens interstate commerce?
What does it violate?
What is the analysis?

A

If the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve an important government purpose

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13
Q

What are the exceptions to violating the dormant commerce clause if the law burdens interstate commerce?

A

i. Exception: Congressional approval
ii. Exception: The market participant exception. A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses.

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14
Q

Is a state run school charging less tuition to in state residents permitted under the dormant commerce clause? Why or why not?

A

Yes. Because of the market participant exception. A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses.

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15
Q

What is the analysis if a state law discriminates against out of staters with regard to ability to earn a livelihood?
What does it violate?
What is the analysis?

A

it violates the privileges and immunities clause of Article IV unless there is substantial justification for the regulation and it is the least restrictive means.

Substantial jusficiation=out of stater is problem or part of the problem the regulation is trying to solve

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16
Q

For the the privileges and immunities clause of Article IV to apply what must be true of the state law?

A

i) The law must discriminate against out-of-staters.

ii) The discrimination must be with regard to civil liberties or important economic activities.

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17
Q

Who cannot use the privileges and immunities clause of Article IV?

A

Corporations and aliens cannot use the privileges and immunities clause.

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18
Q

When is discrimination allowed under the privileges and immunities clause of Article IV? (what is the test?)

A

The state law may be valid if the state has a substantial justification for the different treatment and that there are no less restrictive means

1) Substantial justification
2) No less restrictive means

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19
Q

What if the state law does not discriminate against out of staters but does burden interstate commerce? (what is the test)

A

If the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits

20
Q

When there is a the privileges and immunities clause of Article IV issue on an essay what else do you ALWAYS discuss?

A

You also look at the dormantt comerce clause analysis.

21
Q

Dormant Commerce Clause summary

A
  • Does not require discrimination against out-of-staters in order to apply
  • Requires a burden on interstate commerce
  • Corporations and aliens can sue under it
  • Exceptions: Congressional approval and the market participant exception
22
Q

Privileges and Immunities Clause summary

A
  • Requires discrimination against out-of staters in order to apply
  • Requires discrimination with regard to civil liberties or important economic activities
  • Corporations and aliens cannot sue under it
  • No exceptions
23
Q

What may states not sue their tax system for?

A

States may not use their tax systems to help in-state businesses

24
Q

When is the only time a state can tax activities?

A

A state may only tax activities if there is a substantial nexus to the state

25
Q

When a state taxes interstate business how must it tax?

A

State taxation of interstate businesses must be fairly apportioned

26
Q

What is the Full Faith and Credit Clause?

A

Courts in one state must give full faith and credit to

judgments of courts in another state

27
Q

The full faith and credit clause only applies under cases satisfying what 3 elements?

A
  1. The court that rendered the judgment had jurisdiction over the parties and the subject matter.
  2. The judgment was on the merits.
  3. The judgment is final.
28
Q

Who does the constitution apply to?

A

The Constitution applies only to government action

29
Q

Does private conduct need to comply with the constitution?

A

Private conduct need not comply with the Constitution

30
Q

How can the constitution be applied to private conduct?

A

Congress, by statute, may apply constitutional norms to private conduct.

31
Q

What amendment prohibits race discrimination by private business?

A

The thirteenth amendment

32
Q

What can the commerce power be used for?

A

The commerce power can be used to apply constitutional norms to private conduct (Civil rights act of 1964, Ollie’s BBQ case)

33
Q

Generally, can section 5 of the fourteenth amendment be used to regulate private behavior?

A

No

34
Q

What are the exceptions when private conduct must comply with the Constitution?

A
  1. The public function exception. The Constitution applies if a private entity is performing a task traditionally, exclusively done by the government.
  2. The entanglement exception. The Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity
35
Q

If there are racially restrictive covenants can a court enforce them? Why?

A

No, Courts cannot enforce racially restrictive covenants. The entanglement exception

36
Q

Is there state action when the government leases premises to a restaurant that racially discriminates?

A

Yes, There is state action when the government leases premises to a restaurant that racially discriminates.

37
Q

Is there state action when a state provides books to schools that racially discriminate?

A

Yes, There is state action when a state provides books to schools that racially discriminate.

38
Q

Is there state action when a private school that is over 99% funded by the government fires a teacher because of her speech?

A

No, There is no state action when a private school that is over 99% funded by the government fires a teacher because of her speech.
Government subsidy is not enoughh by itself fo the constitution to apply.

39
Q

Is there state action when the NCAA orders the suspension of a basketball coach at a state university?

A

No, There is no state action when the NCAA orders the suspension of a basketball coach at a state university.

40
Q

Is there state action when a private entity regulates interscholastic sports within a state?

A

Yes, There is state action when a private entity regulates interscholastic sports within a state.

Only distiction with NCAA case, only operates in one state instead of NCAA all over country.

41
Q

Is there state action when a private club with a liquor license from the state racially discriminates?

A

There is not state action when a private club with a liquor license from the state racially discriminates.

42
Q

Who does the bill of right apply directly to?

A

The Bill of Rights applies directly only to the federal government

43
Q

How are the bill of rights applied to the states?

A

The Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the Fourteenth Amendment.

44
Q

What provisions of the bill of rights do not apply to state and local governments?

A
  1. The Third Amendment right to not have a soldier quartered in a person’s home.
  2. The Fifth Amendment right to grand jury indictment in criminal cases.
  3. The Seventh Amendment right to jury trial in civil cases.
  4. The Eighth Amendment right against excessive fines
45
Q

What is the rational basis test? Who has the burden of proof?

A

A law will be upheld if it is rationally related to a legitimate government purpose. The challenger has the burden of proof.

46
Q

What is Intermediate scrutiny? Who has the burden of proof?

A

A law will be upheld if it substantially related to an important government purpose. The government has the burden of proof.

47
Q

What is Strict scrutiny? Who has the burden of proof?

A

Law will be upheld if it is necessary to achieve a compelling government purpose. The government has the burden of proof.

Least restrictive alternate analysis is used. Means must be narrowly tailored

Constitutional Law (14 decks)

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