Federalism and the Federal System

Question 1

What types of powers are exclusively federal?

Answer 1

Expressly limited in the Constitution (treaty power, coining money)
Inherently federal in nature: waging war, granting federal citizenship

Question 2

What powers are exclusively state powers?

Answer 2

All powers not delegated to the federal government are reserved to the states (few powers actually exclusive)

Question 3

When does federal law supersede or preempt local/state law?

Answer 3

Under the Supremacy Clause, federal law pre-empts inconsistent state and local law:

(1) express pre-emption where Congress expressly provides in the statute that states may not adopt laws concerning the subject matter (narrowly construed)
(2) Implied
(a) Conflict pre-emption exists where (i) state law conflicts with federal law requirements, or (ii) state law frustrates/impedes a federal objective
(b) Field pre-emption exists where federal law/regulatory scheme has occupied the entire field to the exclusion of state or local regulation regardless of conflict (look to intent/comprehensiveness)

Question 4

What is the interstate compact clause?

Answer 4

if an agreement between states increases the states’ power at the expense of the federal government, congressional approval is required

Question 5

Can the US sue a state without its consent?

Answer 5

yes

Question 6

Can a state sue the US without its consent?

Answer 6

no; congress can pass legislation waiving its sovereign immunity though

Question 7

Can a federal officer be sued?

Answer 7

A suit against a federal officer is a suit against the US if the judgment sought would be satisfied out of the public treasury or if it would interfere with public administration.
Specific relief may be granted where officer acted ultra vires

Question 8

Can one state sue another without consent?

Answer 8

Yes (SCOTUS has exclusive original jurisdiction)

Question 9

When can Congress subject state and local government entities to taxation and regulation?

Answer 9

Valid when the law or tax applies to both public and private sector. Example: minimum wage

When only applied to public sector entities, may be limited by 10A. EXCEPTIONS: regulations to prevent violations of civil liberties, imposition of conditions on the grant of money.

NOTE: since striking down a federal reg of local govt entities almost never happens, it is almost always a wrong answer on the MBE

Question 10

When can the federal government attach strings to grants of money to the states?

Answer 10

These conditions do not violate the 10A merely because Congress lacks the power to directly regulate the subject of the spending program so long as the conditions are

(1) clearly stated
(2) directly related to the purpose of the program
(3) not unduly coercive

Question 11

Can Congress require state executive officials to enforce federal laws?

Answer 11

No — this is commandeering/upsets the dual sovereignty structure

Question 12

Can states tax federal instrumentalities?

Answer 12

Not directly absent Congress’s consent
Indirect non discriminatory taxes are permissible so long as they do not unreasonably burden the federal government (state income tax on federal employees is ok)
States may not regulate the federal government or its agents while performing their federal functions

Question 13

What is prohibited by Art IV’s Privileges and Immunities Clause?

Answer 13

Discrimination by a state against a nonresident (this only protects natural persons and not corporations or aliens) is PROHIBITED where:

(1) it concerns fundamental rights, which includes not only civil liberties but rights relating to important commercial activities like pursuit of a livelihood, and
(2) the discrimination is intentionally protectionist

UNLESS: the state can show

(1) a substantial justification for the different treatment
(2) no less restrictive means to solve the problem

**mutually reinforced by dormant commerce clause and considered together

Question 14

What is the “dormant commerce clause”?

Answer 14

States may not discriminate against or unduly burden interstate commerce (though may, absent Congressional enactments, regulate local aspects of interstate commerce).

Question 15

When is a state law invalid for discriminating against interstate commerce?

Answer 15

If a state law discriminates against interstate commerce, it is INVALID unless –

(1) It (a) furthers an important, noneconomic state interest and (b) there are no reasonable nondiscriminatory alternatives
(2) the state is acting as a market participant (may prefer its own citizens when buying, selling, hiring labor, or giving subsidies)
(3) Congress has permitted it (may not permit civil liberties violations)

Question 16

When is a nondiscriminatory state law invalid for substantially burdening interstate commerce?

Answer 16

If it does not discriminate against interstate commerce but substantially burdens it, the law is valid unless the burden on interstate commerce substantially outweighs the non-protectionist benefits.

EXCEPTION: States have wider latitude to regulate the internal governance of a corporation even where it substantially impacts interstate commerce based on their strong interstate and long history of doing so.

Question 17

On the bar, when presented with a question involving state regulation affecting interstate commerce, you should analyze it this way.

Answer 17

(1) Is there any federal legislation superseding, pre-empting, or authorizing the state regulation?
(2) Does it discriminate against interstate or out of state commerce?
(3) Does it substantially burden it?

Question 18

What does the 14A Privileges or Immunities Clause protect?

Answer 18

States may not deny their citizens the privileges or immunities of national citizenship. Corporations are not protected. These protected rights include the fundamental right to interstate travel (the right to enter and leave and the right to equal treatment upon permanent residency); the right to petition the federal government for redress of grievances; the right to vote for federal officers.

Question 19

When will a nondiscriminatory state tax affecting interstate commerce be valid?

Answer 19

(1) if the activity has a substantial nexus to the taxing state, which occurs when a business avails itself of the privilege of doing business in a state (physical presence unnecessary)
(2) the tax is fairly apportioned according to a rational formula (burden on taxpayer to show unfairness)
(3) tax is fairly related to services or benefits provided by the state

Question 20

What is the scope of permissible imposition of state use taxes?

Answer 20

Use taxes (tax on goods purchased out of state but used within it) are usually valid unless higher than the sales tax. An interstate seller may be required to collect a use tax if they have a substantial nexus with the taxing state.

Question 21

When is a state sales tax affecting interstate commerce valid?

Answer 21

Generally valid if there is a substantial nexus to the state and properly apportioned

Question 22

When is state ad valorem tax (tax on assessed value) on a commodity permissible?

Answer 22

When the property is no longer in interstate commerce. Commodities in interstate transit are entirely exempt from this. Interstate transit when cargo has reached its destination

Question 23

What are “doing business” taxes and when are they permissible?

Answer 23

Privilege, license, franchise or occupational taxes. May be flat or proportional. Generally permissible. Basic requirements:

(1) activity taxed must have substantial nexus to taxing state
(2) tax must be fairly apportioned
(3) must fairly relate to services provided by the state

Question 24

When a question involves state taxation affecting interstate commerce, you should analyze it this way.

Answer 24

1. Is there any federal legislation in the question forbidding, preempting or authorizing the tax?
2. Does it discriminate against or unduly burden (no substantial nexus, unfair apportionment or no fair relationship) the flow of interstate commerce?