Federalism-Based Limits on State Authority

Question 1

Negative Commerce Clause

Answer 1

A state MAY regulate commerce so long as Congress has NOT enacted laws on the subject matter.
− If such laws are enacted, then any state/local law would be pre-empted by federal law.

BUT States CANNOT pass laws that:

a) Discriminate against out-of-state commerce; OR
b) Place an undue burden on interstate commerce.

Question 2

Discriminatory Regulations

Answer 2

Laws that are facially discriminatory or have a discriminatory impact are unconstitutional UNLESS:

a) burden is narrowly tailored to achieve a legitimate, non-protectionist state objective, AND no less-discriminatory alternatives are available); OR
b) state is a market participant rather than a regulator of economic activity.

Question 3

Unduly Burdensome Regulations

Answer 3

Laws that are not discriminatory, but 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 govt.

*Courts apply this balancing test on a case-by-case basis.

Question 4

Supremacy Clause & Preemption

Answer 4

a validly enacted federal law will always preempt conflicting state law. It is either:

• Express Preemption OR
• Implied Preemption (3 parts)

Question 5

Express Preemption

Answer 5

occurs when federal law specifically states it is exclusive.

Question 6

Implied Preemption

Answer 6

occurs when:

(a) direct conflict with state law;
(b) field preemption (appears from the law itself or legislative history); OR
(c) state law substantially interferes with the objective of federal law.

Question 7

Incorporation Doctrine

Answer 7

Most Amendments are applicable to the States by incorporation through the 14th Amend. Due Process Clause.

Exceptions:

• 3rd Amend. – freedom from quartering soldiers.
• 5th Amend. – indictment by a grand jury.
• 7th Amend. – jury trial in civil cases.
• 8th Amend. – excessive fines.

The 14th Amend. (equal protection) is incorporated into the 5th Amend. Due Process Clause, making it applicable to the Federal Govt.