Federalism and State Authority

Question 1

Negative Commerce Clause

Answer 1

• A state or local government may regulate intrastate commerce, as long as Congress has not enacted laws on the subject matter. If Congress has enacted laws on a particular matter, any state or local laws would be pre-empted by federal law.
• Notwithstanding the above, state and local governments generally CANNOT pass laws that:
(a) DISCRIMINATE against out-of-state commerce; OR
(b) place an UNDUE BURDEN on interstate commerce.

Question 2

Negative Commerce Clause–Law that DISCRIMINATE

Answer 2

Discriminatory Regulations: A law is deemed discriminatory when it is either (a) facially discriminatory, OR (b) the law has a discriminatory impact because it favors in-state commerce over out- of-state commerce. State and local laws that discriminate against out-of-state commerce are UNCONSTITUTIONAL, UNLESS:

(a) the burden on interstate commerce is narrowly tailored to achieve a legitimate, non-protectionist state objective (there are no less-discriminatory alternatives available); OR
(b) the state or local government is a “market participant” rather than a regulator of economic activity (a state may favor its own citizens regarding state programs, state businesses, or when it is the entity buying or selling goods).

The Supreme Court has held that states CANNOT use discriminatory means to accomplish even a legitimate environmental purpose (i.e. prohibiting the disposal of out-of-state waste in-state).

Question 3

Negative Commerce Clause–Law that create UNDUE BURDEN

Answer 3

Unduly Burdensome Regulations: State and local laws that are not discriminatory, but still place an undue burden on interstate commerce are UNCONSTITUTIONAL when (1) the burden on interstate commerce, (2) is clearly excessive to the putative benefits to the state/local government.

Question 4

Supremacy Clause & Preemption

Answer 4

• Under the Supremacy Clause of the U.S. Constitution, validly enacted federal law will always trump (preempt) conflicting state law. State law may be preempted either expressly or impliedly.
• Express preemption occurs when federal legislation specifically states that the federal law is exclusive. Implied preemption occurs through:
(a) direct conflict with state law;
(b) field preemption (when it appears from the law itself or its legislative history that the federal government intended to exclusively occupy a given field); OR
(c) when the state law substantially interferes with the objective of the federal law.