Federalism, Preemption and the Dormant Commerce Clause - Oct. 10 and 12

Question 1

In addition to the federal government’s immunity from state taxation and regulation, what are the main federalism-based limits on state authority? (Q)

Answer 1

In addition to the federal government’s immunity from state taxation and regulation, the main federalism-based limits on state authority are:

the Dormant Commerce Clause, which limits the states’ ability to burden interstate commerce; and,

the preemption doctrine, under which federal law generally trumps conflicting state laws.

All three federalism-based limits on state authority derive from the Supremacy Clause.

Question 2

What does the Dormant Commerce Clause prohibit? (Q)

Answer 2

The Dormant Commerce Clause, also called the negative Commerce Clause, prohibits states from unjustifiably burdening or discriminating against interstate commerce. The Commerce Clause provides that the federal government has the power to regulate interstate commerce. The negative implication is that the states generally do not have the power to regulate interstate commerce.

The dormant aspect of the Commerce Clause means that a state cannot:

impede or interfere with interstate commerce (i.e., burden) or
favor local, in-state commerce over out-of-state commerce (i.e., discriminate).

Question 3

In the context of the Dormant Commerce Clause, what is a legitimate local objective that a state law may serve? (Q)

Answer 3

In the context of the Dormant Commerce Clause, legitimate local objectives include the subjects of the state’s police power—the general health, safety, and welfare of the state’s citizens. A state may pass regulations that affect interstate commerce, if, among other requirements, those regulations serve legitimate local objectives.

Protection of local economic interests is not a legitimate objective. State laws serving no purpose other than economic protectionism are invalid per se.

Question 4

If a state law facially discriminates against out-of-state interests, what requirements must be met for the law to be constitutional under the dormant aspect of the Commerce Clause? (Q)

Answer 4

To be constitutional under the Dormant Commerce Clause, a state law that facially discriminates against out-of-state interests must:

advance a legitimate local purpose and
be the least discriminatory way of achieving that purpose.
Pure economic protectionism (i.e., shielding in-state interests from out-of-state competition) is never a legitimate purpose. Purely protectionist laws are virtually per se invalid. Even if a state has a purportedly legitimate interest in discriminating against out-of-state interests, that interest will be given the strictest scrutiny. To meet the second half of the test, discriminating against out-of-state interests must be essential to achieving the state’s objective. Like the first part of the test, whether there are any possible nondiscriminatory alternatives will be given the strictest scrutiny.

Question 5

Concerned about the survival of local wild mountain trout, a state government prohibited selling locally caught wild mountain trout to out-of-state purchasers. A restaurant operated just across the state line and regularly purchased wild mountain trout from suppliers in the state. However, the ban on sales to out-of-state purchasers caused the restaurant a significant trout-supply problem that impacted the restaurant’s business. The restaurant sued, arguing that the ban violated the Dormant Commerce Clause.

Does the ban violate the Dormant Commerce Clause? (Q)

Answer 5

Yes. The ban violates the Dormant Commerce Clause. The ban facially discriminates against out-of-state interests and is virtually per se invalid. States cannot unjustifiably burden or discriminate against interstate commerce. A law that facially burdens or discriminates against out-of-state interests is constitutional only if the regulation:

advances a legitimate local purpose and

is the least discriminatory way of achieving that purpose.

This test creates a rule of virtually per se invalidity that requires the strictest scrutiny.

Here, the ban facially discriminates against out-of-state interests. The conservation of a native fish population is a legitimate local purpose that is advanced by the ban. However, because less discriminatory means also exist to advance this purpose, such as limiting the total number of fish that can be caught, the ban violates the Dormant Commerce Clause.

Question 6

What must a state seeking to defend a state law against a Dormant Commerce Clause challenge prove if the challenged law does not facially discriminate against interstate commerce? (Q)

Answer 6

If a state law does not facially discriminate against interstate commerce, a state defending the law from a Dormant Commerce Clause challenge must show that:

the law advances a legitimate local objective,
the law is rationally related to the objective, and
the burdens imposed on interstate commerce are not clearly excessive as compared to the local benefits.
In determining whether the state interest outweighs the effect of the regulation, courts consider the extent of the burden on interstate commerce; the local benefits to the state; and the availability of reasonable, adequate, and nondiscriminatory alternatives. State laws imposing severe burdens on interstate commerce tend to be unconstitutional, even if they advance legitimate local interests. State laws imposing incidental burdens tend to be upheld, unless the burdens are clearly excessive in relation to the putative local benefits.

Question 7

In a Dormant Commerce Clause case, how does the court weigh the state’s interest against the burden on interstate commerce imposed by the state law? (Q)

Answer 7

In a Dormant Commerce Clause case, to determine whether the state’s interest outweighs the burden on interstate commerce imposed by the state law, the court will consider:

the extent of the burden or discrimination on interstate commerce;
the local benefits to the state, and
the availability of reasonable, adequate, and nondiscriminatory alternatives.
The state must prove is that its interest in the legitimate local objective is not outweighed by the law’s discriminatory effect on interstate commerce. State laws imposing severe burdens on interstate commerce tend to be unconstitutional under the Dormant Commerce Clause, even if they advance legitimate local interests. In contrast, state laws imposing only incidental burdens on interstate commerce tend to be upheld, unless the burdens are clearly excessive in relation to the putative local benefits.

Question 8

If a state regulation only incidentally impacts interstate commerce, what elements will a court balance to determine whether the regulation violates the dormant aspect of the Commerce Clause? (Q)

Answer 8

If a state regulation only incidentally impacts interstate commerce, a court will balance the regulation’s burden on interstate commerce against its legitimate local benefits to determine whether the regulation violates the dormant aspect of the Commerce Clause.

The court will find a violation if the burden imposed on interstate commerce is clearly excessive when weighed against legitimate local benefits. Health, safety, and welfare benefits are local benefits that are legitimate.

Question 9

A state government enacted a law limiting the length of trains to no more than 100 total cars. Trains longer than 100 cars needed to be reconfigured before entering the state or else be re-routed to avoid entering the state at all. The law’s legislative history said that the legislature believed shorter trains were safer because shorter trains required shorter braking times to stop. However, safety data showed that the most dangerous aspect of freight-train operation was the initial crossing of a train on a street or highway, not the inability to brake quickly. Having more short trains entering crossings was more dangerous than having fewer long trains because of the increased risk of automobile-train collisions.

Does the state law violate the Dormant Commerce Clause? (Q)

Answer 9

Yes. The state law violates the Dormant Commerce Clause. If a facially neutral state law incidentally impacts interstate commerce, the law will violate the Dormant Commerce Clause if the burden the law places on interstate commerce is clearly excessive when weighed against legitimate local benefits.

Here, because the law does not distinguish between interstate and intrastate trains, it is not facially discriminatory. However, forcing all trains in a multi-state region to reconfigure or re-route is a serious burden on interstate train transportation. These burdens are weighed against any legitimate local benefits. However, this law increases the risk of automobile-train collisions. The local benefits are, at most, minimal. The law’s burden on interstate commerce is clearly excessive relative to any local benefits. Thus, the law violates the Dormant Commerce Clause.

Question 10

May states ever pass laws that affect interstate commerce? (Q)

Answer 10

Yes. States may pass laws that affect interstate commerce if those laws are rationally related to a legitimate local objective, and the state’s interests in those local objectives are not outweighed by the burden or discrimination the laws place on interstate commerce. In determining whether the state interest outweighs the effect of the regulation, courts consider:

the extent of the burden or discrimination on interstate commerce;
the local benefits to the state; and
the availability of reasonable, adequate, and nondiscriminatory alternatives.
State laws imposing severe burdens on interstate commerce tend to be unconstitutional, even if they advance legitimate local interests. State laws imposing incidental burdens tend to be upheld, unless the burdens are clearly excessive in relation to the putative local benefits.

Question 11

May a state adopt policies governing the state’s direct participation in a market that favor local interests over out-of-state interests without violating the Dormant Commerce Clause? (Q)

Answer 11

Yes. A state may adopt policies governing the state’s direct participation in a market that favor local interests over out-of-state interests without violating the Dormant Commerce Clause. Under the market-participant exception, if a state is acting as a market participant rather than as a sovereign regulator, then the state can adopt and enforce policies that burden or discriminate against interstate commerce without violating the dormant Commerce Clause. This exception applies to both state and local governments.

However, the state may only regulate direct transactions in the immediate market in which it is buying or selling. The state may not attempt to regulate indirect transactions occurring before its sale or purchase in upstream markets or occurring after its sale or purchase in downstream markets.

Question 12

A state operated its own colleges. The state also provided a property-tax exemption for a private college if 51 percent of its students were in-state residents. However, the law denied the exemption to all other private colleges because at least 50 percent of the students at those private colleges were not in-state residents. A private college in the state sought to claim the property-tax exemption, but it was denied because 75 percent of its students were from out-of-state. The college sued the state arguing that this denial violated the Dormant Commerce Clause. The state responded that it was in the market of providing college services. The state claimed that this meant the market-participant exception protected it from any Dormant Commerce Clause liability.

Does the market-participant exception to the Dormant Commerce Clause apply to the state? (Q)

Answer 12

No. The market-participant exception does not apply. The Dormant Commerce Clause generally prohibits states from discriminating against out-of-state interests. However, under the market-participant exception, a state can adopt and enforce policies as part of its direct participation in a market that discriminate against out-of-state interests without violating the Dormant Commerce Clause. This exception only applies to actions taken as an ordinary market participant, like preferring in-state suppliers. Imposing a tax is virtually always a sovereign action.

Here, the state is in the market of providing college services. However, most colleges do not impose taxes on other colleges. This tax was imposed by the state in its sovereign capacity, not in its role as fellow provider in the market of college services. Therefore, the market-participant exception does not apply.

Question 13

For state regulations that impact interstate commerce, does the market-participant exception apply to both direct markets and related markets that are downstream from the direct market? (Q)

Answer 13

No. The market-participant exception does not apply to both direct markets and related markets that are downstream from the direct market. The reach of the Dormant Commerce Clause is limited to a state’s direct transactions in an immediate market and does not extend to state activity in a related, downstream market.

Thus, even if the state is acting as a participant in a particular market, the state cannot impact or regulate downstream transactions in a way that discriminates against out-of-state interests. Restrictions on downstream markets are treated as regulatory in nature and subject to the same rules that apply to any other facially discriminatory state regulations that burden interstate commerce.

Question 14

In the context of evaluating a state tax on interstate commerce under the Dormant Commerce Clause, under what circumstances does a taxed person or entity have a substantial nexus with the state? (Q)

Answer 14

A taxed person or entity has a substantial nexus with the state if the business on which the tax is based constitutes a substantial availment of the privilege of conducting business within the state. Substantial availment can be based on the volume of business conducted, and may include both physical delivery of goods and a significant online presence. The validity of the tax does not depend on whether the taxpayer has an actual physical presence within the state. The substantial nexus requirement limits the reach of the state’s taxing authority to prevent undue or unnecessary burdens on interstate commerce.

Question 15

May a state tax interstate commerce without violating the Dormant Commerce Clause? (Q)

Answer 15

Yes. A state government may impose a tax on interstate commerce without violating the Dormant Commerce Clause if the tax:

is applied to a person or activity that has a substantial nexus with the state,
is fairly apportioned,
does not discriminate against interstate commerce, and
is fairly related to the services provided by the state.
The U.S. Supreme Court has reasoned that the fair apportionment and nondiscrimination requirements prohibit taxes that impose an unfair share of the tax burden on interstate commerce. The substantial nexus and fairly related requirements limit the reach of a state’s taxing authority to prevent undue burden on interstate commerce.

Question 16

What does the Supremacy Clause provide? (Q)

Answer 16

The Supremacy Clause establishes the Constitution, federal statutes, and treaties as the highest law of the land. This clause establishes a hierarchy of law under which valid federal law preempts state law in the event of a conflict, regardless of the relative wisdom of the competing federal and state policies or the strength of the state’s regulatory interest versus that of the federal government.

The Supremacy Clause is one of the most important constitutional manifestations of federalism, as it explains that the laws of the federal government trump the laws of the states.

Question 17

What is preemption? (Q)

Answer 17

Under the doctrine of preemption, valid federal law will preempt, meaning supersede or replace, conflicting state law. Preemption may be express or implied. The doctrine of preemption originates in the Constitution’s Supremacy Clause, which establishes the Constitution, federal law, and treaties as the highest law of the land.

Question 18

Does the existence of the Dormant Commerce Clause stem from the Supremacy Clause? (Q)

Answer 18

Yes. The Supremacy Clause is essentially the rationale behind the Dormant Commerce Clause. The supremacy of federal laws on interstate commerce over state laws yielded the Dormant Commerce Clause’s restrictions on state laws burdening or discriminating against interstate commerce.

Question 19

If a state law conflicts with a valid federal statute or treaty, is the state law preempted? (Q)

Answer 19

Yes. If a state law conflicts with a valid federal law, then the state law is preempted and invalidated by the conflicting federal law. Under the Supremacy Clause, federal laws and ratified treaties are the supreme law of the land.

Question 20

What is express preemption? (Q)

Answer 20

Express preemption occurs when a federal statute expressly states that it preempts applicable state law. Statutes using an express-preemption strategy may use language such as “notwithstanding state law to the contrary,” “despite any state law to the contrary,” or state that the federal law “supersedes any and all state laws.”

Question 21

What is conflict or obstacle preemption? (Q)

Answer 21

Conflict or obstacle preemption occurs when a federal statute supersedes a conflicting state law that:

renders it impossible to comply with the federal statute and the state statute simultaneously or
presents an obstacle to Congress’s purposes or objectives in the federal law.

If that type of conflict exists, the state law must be superseded by the federal law. This type of preemption is different from express preemption, in which Congress explicitly states that state laws on the subject are preempted.

Question 22

What is field preemption? (Q)

Answer 22

Field preemption occurs when the scheme of federal legislation is so pervasive that a person can reasonably infer that Congress left no room for the states to regulate (such as in the field of immigration law). In that case, any state statute related to that field must be superseded by the federal scheme.

Question 23

The federal government enacted extensive and pervasive regulation of the safety requirements of atomic energy in the United States, including the operation of nuclear power plants. However, hearing stories about safety issues in nuclear power plants in foreign countries, a state’s citizens became concerned about a nuclear power plant that operated within the state. To ease those citizens’ concerns, the state decided to enact some of its own safety requirements for the operation of nuclear power plants.

Does field preemption invalidate the state’s regulation of nuclear power plants? (Q)

Answer 23

Yes. Field preemption invalidates the state’s regulations. Field preemption occurs if the federal government has regulated an area so completely and thoroughly that no room exists for additional state regulation.

Here, federal regulation of the safety requirements for nuclear power plants is so pervasive that it occupies the entire field. Because Congress has occupied the field, field preemption invalidates any state laws that also try to regulate nuclear-power-plant safety, even if the state regulations do not actually conflict with either the objectives of federal law or the means Congress used to achieve those objectives. The only way this state law could avoid field preemption is if an express savings clause said that state regulations of nuclear energy are allowed. Because there is no saving clause, field preemption invalidates the state’s regulations.

Question 24

What is regulatory preemption? (Q)

Answer 24

Regulatory preemption recognizes that, to the extent that federal regulations validly issued by an agency have the force of law, they are entitled to the same preemptive effect as federal law. A federal regulation with the force of law will supersede an inconsistent state law.

Nonbinding agency regulations and materials, however, do not preempt state law.

Question 25

A lawyer was registered to practice before the United States Patent and Trademark Office (USPTO). Pursuant to its authority under a federal statute, the USPTO had promulgated licensing regulations for practitioners to practice before it, and the lawyer had met all of them. The lawyer drafted patent applications on behalf of inventors and presented arguments to the USPTO on why the agency should grant the applications. The lawyer was not a member of the bar in the particular state where he worked. The state’s bar association initiated an action against the lawyer for the unauthorized practice of law in the state.

Can the state bar association require the lawyer to be a member of its bar to give patent advice to individuals in the state? (Q)

Answer 25

No. The state cannot require the lawyer to be a member of its bar to give patent advice in the state. Under regulatory preemption, federal regulations validly issued by an agency are entitled to the same preemptive effect as federal law. Thus, a federal regulation with the force of law will supersede an inconsistent state law.

Here, the lawyer’s ability to practice before the USPTO is governed by USPTO regulations validly promulgated pursuant to federal law. To the extent that state law holds that the lawyer cannot practice before the USPTO, the state law must yield to validly issued federal regulations. If a lawyer is authorized to appear before a federal agency in a representative capacity, a state cannot require that the lawyer also be a member of the state’s bar to engage in the same work. Thus, the state cannot require this lawyer to be a bar member.

Question 26

Under the Supremacy Clause, in what ways can a state law can be preempted by federal law? (Q)

Answer 26

Under the Supremacy Clause, a state law can be either expressly or impliedly preempted by federal law. Express preemption occurs if Congress enacts a statute that clearly and directly states that the statute is preempting any conflicting state laws. Implied preemption occurs if a state law either:

impedes the ends or means of a federal law (i.e., conflict or obstacle preemption) or
attempts to regulate an area already occupied by federal law (i.e., field preemption).
Regulatory preemption occurs when a state law is inconsistent with a federal regulation having the force of federal law.

Question 27

What is the difference between field preemption and conflict preemption? (Q)

Answer 27

Conflict preemption involves an implied conflict with a specific law or regulatory scheme, while field preemption involves an implied conflict with an entire subject area of law. Field preemption occurs if Congress has regulated a subject so completely and thoroughly that no room exists for additional state regulation. Conflict preemption occurs if:

it is impossible to comply with both the state and the federal law or
the state law obstructs the federal law’s objectives.
It is possible for a given state law to be preempted under both conflict preemption and field preemption.

Question 28

Federal law gave the U.S. Coast Guard broad regulatory authority over the operation of ships using the waters of the United States. Federal statutes and U.S. Coast Guard regulations specifically addressed the safety and operation of oil tankers. Federal law had regulated vessel safety for many years and the regulations were both comprehensive and complex. The federal laws and regulations made it clear that their intent was to create a uniform set of standards governing all oil tankers. A state imposed its own safety regulations for the operation of oil tankers using the state’s navigable waterways.

Are the state’s tanker-safety regulations subject to both implied conflict preemption and field preemption? (Q)

Answer 28

Yes. The state regulations are subject to both implied conflict and field preemption. Implied conflict preemption occurs if:

it is impossible to comply with both the state and the federal law or
the state law obstructs the federal law’s objectives.
Field preemption occurs if the federal government has regulated an area so thoroughly that no room exists for state regulation.

Here, federal regulations set safety requirements for operating oil tankers. Even if the state regulations supplement the federal ones, the state regulations still interfere with the federal government’s intent to have one uniform system. The state regulations are conflict preempted. Federal law also comprehensively regulates this area. Because no room exists for additional state regulation, field preemption also occurs. Thus, the state regulations are subject to both implied conflict and field preemption.

Question 29

Can Congress authorize states to regulate in ways that would otherwise be preempted by a federal law? (Q)

Answer 29

Yes. Congress can authorize states to regulate in ways that would otherwise be preempted by a federal law. To do this, Congress can include an express saving clause in a federal law that authorizes state regulations that would otherwise be preempted. If a savings clause applies to a state law, then even if the state law conflicts with federal law in some way, the state law will not be invalidated on preemption grounds.

Question 30

Congress enacted a comprehensive workplace-safety law. This law included a savings clause that allowed states to submit a plan to the federal government for voluntarily enacting an equivalent state workplace-safety law. The saving clause also said that if a state’s plan was accepted, then the state was allowed to adopt workplace-safety regulations that met or exceeded the applicable federal safety standards. A state chose not to submit a plan to the federal government. However, the non-plan state decided to enact a law that established a workplace-safety standard that was more demanding than the applicable federal standard.

Is the non-plan state’s workplace-safety law preempted? (Q)

Answer 30

Yes. The non-plan state’s workplace-safety law is preempted. Congress can include a saving clause in a statute that allows states to regulate that subject without being preempted. If a saving clause only allows state laws under some conditions, then state laws that do not meet those conditions are field preempted. To the extent that a state law conflicts with or supplements an existing federal law, that state law is conflict preempted.

Here, under the saving clause, being a plan state is a condition of passing state workplace-safety regulations. Any regulations from non-plan states are preempted under field preemption. Further, any state standards that conflict with or supplement a federal standard interfere with the means selected by the federal government to achieve workplace safety are conflict preempted. Thus, under both field and conflict implied preemption, the law is preempted.

Question 31

Can Congress give authority to the states to enact laws and regulations that impact interstate commerce? (Q)

Answer 31

Yes. Under its Commerce Clause power, Congress can affirmatively give authority to the states to enact laws and regulations impacting interstate commerce. The U.S. Supreme Court has required Congress to demonstrate its intent to authorize states to burden or discriminate against interstate commerce in unmistakably clear terms.

Generally, if Congress has not said anything, the dormant aspect of the Commerce Clause prevents states from regulating interstate commerce. If Congress has been silent, it is because Congress deliberately chose to not regulate and that choice must be respected. A state cannot make a different choice and usurp Congress’s power to regulate interstate commerce if Congress has been silent on an issue.

Question 32

Congress enacted a statute that authorized state governments to regulate the insurance industry. A state enacted a law governing companies that sold life insurance in that state. This new state law stated that any company that sold life insurance in the state must have either incorporated in the state or have done business through a locally-incorporated subsidiary. An out-of-state insurance company sued to invalidate the law. The company argued that the state law discriminated against out-of-state companies and, therefore, unconstitutionally burdened interstate commerce. The company claimed that the state law violated the Dormant Commerce Clause.

Can the Dormant Commerce Clause invalidate this state law? (Q)

Answer 32

No. The Dormant Commerce Clause cannot invalidate this state law. The Dormant Commerce Clause prohibits states from discriminating against out-of-state companies or otherwise burdening interstate commerce. However, if Congress affirmatively authorizes state regulation of a particular economic activity, then state regulations of that activity are rendered immune from Dormant Commerce Clause review.

Here, a law discriminating against out-of-state insurance companies would normally violate the Dormant Commerce Clause. However, Congress affirmatively authorized the states to regulate insurance. This state law governing companies selling life insurance within the state is a state regulation of insurance that falls under the authority granted by Congress. Thus, the Dormant Commerce Clause cannot invalidate this state law because the law is immune from Dormant Commerce Clause review.

Question 33

What is federalism? (Q)

Answer 33

Federalism is the constitutional concept that certain governmental functions should be the responsibility of the individual states and certain functions should be the responsibility of the federal government.

The Constitution creates a system of federalism in the United States, in which two levels of government—federal and state—share control. Both federal and state governments have the power to make laws and enjoy some individual autonomy from one another.

Question 34

What are intergovernmental immunities? (Q)

Answer 34

Under the American system of federalism, intergovernmental immunities are the protections that keep the federal and state governments from improperly interfering with the exercise of one another’s powers.

The federal government is generally immune from regulation and direct taxation by the states via the Supremacy Clause. State governments have partial immunity from federal regulation or taxation that interferes with state sovereignty and thus violates the Tenth Amendment.

Question 35

What immunities does the federal government enjoy from actions by state governments? (Q)

Answer 35

The federal government is generally immune from regulation and direct taxation by the states. Federal immunity from state laws derives from the Constitution’s Supremacy Clause and is sometimes referred to as intergovernmental immunity.

The federal government may waive its immunity by consenting to state regulation or direct taxation. The federal government is not immune from indirect taxation that is not discriminatory or unreasonably burdensome.

Question 36

Congress passed a law allowing the federal government to build a dam on federal lands located within a state. The state government sought to stop construction of the dam because the federal government did not apply for or obtain the necessary construction permits from the state government.

Can the state require the federal government to obtain state construction permits to build a dam inside the state? (Q)

Answer 36

No. The state cannot require the federal government to obtain state construction permits to build a dam inside the state. Although in general, state laws can apply to federal employees and properties, state laws do not apply if they would interfere with federal law or its objectives. The federal government is generally immune from regulation by the states. This federal immunity from state laws derives from the Supremacy Clause and is sometimes referred to as intergovernmental immunity.

Here, requiring a state permit for the federal dam would give the state the ability to interfere with and control whether and how the federal government could proceed with construction on the federal government’s own land. The federal government is immune from this type of interference with its objectives under the Supremacy Clause. Thus, the state cannot require a construction permit for the federal dam.

Question 37

Does the Supremacy Clause of the U.S. Constitution provide a general immunity from state law for federal employees acting within the scope of their employment duties? (Q)

Answer 37

No. The Supremacy Clause of the U.S. Constitution does not provide a general immunity from state law for federal employees acting within the scope of their employment. The general body of state law applies to all federal employees, including military personnel, unless:

a state law directly conflicts with a federal law or
Congress has expressly preempted the application of that type of law to federal employees.
Under the Supremacy Clause, the states cannot pass laws that impede federal laws or the objectives of federal laws. This is sometimes called the doctrine of intergovernmental immunity or federal immunity from state law. However, the Supremacy Clause does not provide a general immunity that protects federal employees from all state laws just because the employee is engaged in a federal-government duty.

Question 38

A federal postal employee, in the process of delivering the mail, was arrested by a local police officer for driving while intoxicated in violation of state law.

The postal employee moved to dismiss the state criminal charges. The employee argued that, as a federal employee engaged in the discharge of her official duties, she was immune from arrest by state or local police officers.

Is the federal postal employee immune from the state criminal charges because she was performing official federal duties at the time of the arrest? (Q)

Answer 38

No. The federal postal employee is not immune from the state criminal charges. Under the Supremacy Clause, the states cannot pass laws that impede federal laws or the objectives of federal laws. However, federal employees are not immune from the reach of state law. State background laws apply to federal employees unless the state law:

conflicts with a federal law or
is expressly preempted by federal legislation.
This is true even if a federal employee is performing official federal duties.

Here, the state drunk driving law constitutes a valid background law that a state can apply to federal postal employees. This law does not conflict with a federal law or policy, nor has Congress expressly immunized federal postal employees from state drunk driving laws. Thus, the postal employee is not immune from the criminal charges even if she was performing official duties.

Question 39

May the states impose taxes on federal property without the express consent of Congress? (Q)

Answer 39

No. Unless a state has express congressional consent, a state may not:

directly tax the United States or its instrumentalities, or
forfeit or seize federal-government property for failure to pay a state tax.
Imposing taxes on the federal government’s property can frustrate or destroy federal interests. The Supremacy Clause states that the states cannot interfere with federal interests in this manner. This is sometimes referred to as the doctrine of intergovernmental immunity or federal immunity from state law. However, the federal government can choose to waive this immunity and consent to direct state taxation.

Question 40

Can Congress give the states authority to tax federal property or activities? (Q)

Answer 40

Yes. Congress can give the states authority to tax federal property or activities if Congress provides its affirmative and express consent. However, if a state does not have affirmative, express congressional consent, a state is not allowed to either:

directly tax the United States or its instrumentalities or
forfeit or seize federal-government property for failure to pay a state tax.

Question 41

What does the Tenth Amendment provide? (Q)

Answer 41

The Tenth Amendment provides that powers not expressly delegated to the federal government or prohibited to the states in the Constitution are reserved to the states or the people. This is one means by which the Constitution allocates power between the federal and state governments in the federalist system. State governments have police powers to pass laws to protect the general health, safety, and welfare of people and property within their jurisdictions, provided those laws are constitutional.

In contrast, the federal government has no police power to protect the health, safety, and welfare. An attempt by the federal government to exercise police powers would violate the Tenth Amendment. The exception is in places of exclusive federal jurisdiction like territories, military installations, and government property. There, the federal government has an enumerated police power.

Question 42

What immunities does the state government enjoy from actions by the federal government? (Q)

Answer 42

In general, the Tenth Amendment protects attributes that are integral to a state’s sovereign status and involve functions essential to a state’s separate and independent existence. States are not generally immune from regulation, taxation, or civil suit by the federal government. However, states have partial immunity when federal regulation or taxation violates the Tenth Amendment by interfering with state sovereignty.

The federal government may not compel a state to enact legislation or execute federal law and may not commandeer state executive or legislative officials (though Congress may attempt to induce action through conditional spending). However, the anti-commandeering doctrine does not prohibit the federal government from commandeering state judicial officers. In fact, the Constitution obligates state courts to enforce federal law.

Question 43

Congress voted to admit an island as a new state to the union. Congress wanted the new state to relocate its capital to a city near a major military base on the island.

May Congress direct the state to relocate its state capital to a particular city? (Q)

Answer 43

No. Congress may not direct the state to relocate its state capital to a particular city. The U.S. Constitution gives Congress broad discretion to admit or decline to admit new states to the union. However, once it is admitted, a state has its own protected, sovereign status. The Tenth Amendment protects attributes of state sovereignty that:

are integral to a state’s sovereign status and
involve functions essential to a state’s separate and independent existence.
Here, a state’s authority to determine the location of its capital city, the geographical heart of the state government, is integral to a state’s sovereignty. The location of the capital city also involves governing functions that are essential to the state’s status as a new, separate state in the union. Thus, Congress may not command this new state to relocate its state capital to a particular city.

Question 44

Can Congress require a state legislature to enact state legislation to implement a federal law? (Q)

Answer 44

No. Congress cannot commandeer state governments by requiring them to enact a state law to implement a federal law. Congress can:

impose direct regulations that are within its constitutional authority to enact and
offer incentives to state legislatures to enact state laws.
However, Congress cannot command a state legislature to pass a state statute.

Question 45

Concerned about the failure of the states to address the problem of teen suicide, Congress enacted a law requiring all states to establish teen-suicide-prevention programs. Congress claimed the law was necessary to promote the general welfare of the nation. The law gave the states broad discretion to determine how their programs were structured. One state sued, alleging that this federal law violated the Tenth Amendment to the U.S. Constitution.

Does this federal law violate the Tenth Amendment? (Q)

Answer 45

Yes. This federal law violates the Tenth Amendment. The federal government cannot commandeer the state legislatures by forcing them to enact particular state laws. Doing so would be an unconstitutional invasion of the state’s sovereignty. However, Congress can offer states an incentive to voluntarily adopt legislation. The incentive can be financial or regulatory in nature, as long as it:

is clearly stated,
is not unduly coercive (the state can freely choose to accept or reject the deal),
relates to the activity being subsidized, and
is not otherwise unconstitutional.
Here, the law does not give the states an incentive or offer the states a choice to enact legislation. Rather, the law commandeers the states by coercing them implement a federal law. Thus, under the Tenth Amendment, this federal law is an unconstitutional violation of the state’s sovereignty.

Question 46

Congress enacted a law that required states to impose mandatory annual testing for all automobile drivers who were 70 years and older. If a state failed to enact a law imposing the mandatory testing within a year, then that state’s share of federal highway funds would be reduced by 10 percent until the state enacted the legislation. One state did not adopt a law imposing the mandatory testing. After one year, the federal government reduced that state’s annual highway-fund allocation by 10 percent. The state sued, arguing that the federal law requiring mandatory driver testing violated the Tenth Amendment to the U.S. Constitution.

Is the state correct? (Q)

Answer 46

No. The state is incorrect. The federal government can condition a state’s receipt of federal funds on enacting state laws without violating the Tenth Amendment if the condition:

is clearly stated,
is not unduly coercive (the state can freely choose to accept or reject the deal),
relates to the activity being subsidized, and
is not otherwise unconstitutional.
Here, Congress conditioned the state’s receipt of highway funds on enacting a state mandatory-driver-testing law. Congress did not order the state to enact the law. The condition for funding was clear, related to the activity being subsidized (highway safety), and was not otherwise unconstitutional. While withholding 10 percent of federal funds could be coercive, a state could function without those funds. The condition is not unduly coercive, and the federal law did not violate the Tenth Amendment. Thus, the state is incorrect.

Question 47

Can Congress require local and state law enforcement officers to enforce federal laws? (Q)

Answer 47

No. Congress cannot commandeer state executive officers by requiring them to enforce federal statutes. Congress can offer financial incentives to encourage state and local law enforcement agencies to assist with the enforcement of federal laws. However, Congress cannot directly command state or local officers to enforce federal laws.

Question 48

If Congress, under its Commerce Clause power, passes a law that does not specifically exclude the states from its reach, does that law automatically apply to the states? (Q)

Answer 48

No. If Congress, under its Commerce Clause power, passes a law that does not specifically exclude the states from its reach, the law does not automatically apply to the states. Congress must affirmatively include a plain statement that unambiguously indicates that the regulation applies to the states.

For laws passed under Congress’s Commerce Clause powers, courts will not assume that Congress meant to invade the area of state sovereignty. If the law is silent, or if there is any ambiguity about whether Congress meant for a law passed under its Commerce Clause power to apply to the states, then that law does not apply to the states.

Question 49

Does the Tenth Amendment to the U.S. Constitution prevent the federal government from regulating the states as market participants that buy or sell goods and services? (Q)

Answer 49

No. The Tenth Amendment does not prevent the federal government from regulating the states as market participants that buy or sell goods and services. For a law to apply to the states as market participants, Congress must include an unambiguous and plain statement indicating that the law is meant to apply to state market participants. As long as the federal law contains that clear, plain statement, the federal law governs both private and state entities that participate in the market.

However, the Tenth Amendment does prevent Congress from regulating the states in their sovereign capacities. If a state is acting to regulate a market, then the state is acting in its sovereign capacity rather than as a market participant.

Question 50

Congress enacted a new disclosure statute. Under this new statute, any entities that sold bonds to the public must have made certain mandatory disclosures in the bond-offering prospectus. Congress included a plain and unambiguous statement in the statute which stated that the law’s disclosure provisions applied to states that sold bonds to the public. One state sold bonds to the general public but it did not make the mandated disclosures in the bond-offering prospectus. The federal government sought to enforce the new mandatory-disclosure requirement against the state. The state argued that the Tenth Amendment to the U.S. Constitution gave the state immunity from having to comply with this federal law.

Is the state correct? (Q)

Answer 50

No. The state is incorrect. The Tenth Amendment prevents Congress from regulating the states in their sovereign capacities. However, the Tenth Amendment does not prevent the federal government from regulating the states as market participants that buy or sell goods and services. For a law to apply to the states as market participants, Congress must include an unambiguous and plain statement indicating that the law is meant to apply to state market participants. If the law contains such a statement, then the Tenth Amendment does not apply.

Here, the federal law does not regulate the states in their sovereign capacities. Rather, the law regulates the states only as participants in the bond market. Further, the law contains a plain statement that makes it clear that the law is meant to apply to state bond market participants. The Tenth Amendment does not apply. Thus, the state is incorrect.