Federalism and Limits on State Power

Question 1

Pre-emption (Defined)

Answer 1

Supremacy clause allowing for federal law to be superior over conflicting state laws

Question 2

Dormant Commerce Clause: Defined

Answer 2

state laws are unconstitutional–even if Congress has not acted–when they have an undue burden on interstate commerce

Unless they further an important state interest (intermediate scrutiny (?))

Question 3

Dormant Commerce Clause: Exceptions

Answer 3

(1) Congress approves the state law
(2) Market participation
(3) Congress has entered the field (no longer dormant)

Question 4

Privileges and Immunities Clause

Answer 4

Prevents states from discrimination against out-of-state persons regarding constitutional rights and important economic activities

Question 5

Explicit Pre-Emption

Answer 5

Example: expressly stated within the statute

See Lorillard Tobacco Co. v. Reilly: even when working towards the same goal, Federal legislation that explicitly limits regulation to the Federal Government may pre-empt state laws.

Question 6

Implicit Forms of Preemption

Answer 6

(1) Field Preemption
(2) Conflict Preemption (two types)

Question 7

Field Preemption

Answer 7

The scheme of federal regulation is “so pervasive” as to make it reasonable that Congress left no room for States to supplement it

Factors:
(1) subject matter is something normally attributed to the state police powers
(2) completeness of the federal regulatory scheme
(3) whether having a federal and uniform policy to is more appropriate
(4) language indicating a purpose to pre-empt the field

Question 8

Conflict Preemption

Answer 8

(1) Compliance with both state and federal regulations is a physical impossibility

(2) Where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress

Question 9

Standards of Review (Privileges and Immunities)

Answer 9

Non-Discriminatory Law: intermediate scrutiny (narrowly tailored to advance the state interest)

Discriminatory Law: strict scrutiny (no available, less-invasive, reasonable alternative to pursue the interest)

Question 10

State Action Requirement

Answer 10

In order to apply the Constitution (per due process of the 14th Amendment), there is a general rule of application only to state actors versus private parties

Question 11

State Action Exceptions

Answer 11

Public Functions Exception: when a private party engages in conduct that is traditionally and exclusively carried out by the government

Entanglement Exception: when the government has authorized, facilitated or encouraged the private, unconstitutional conduct