Federalism safeguards

Question 1

Supremacy Clause

Answer 1

Generally, especially in cases involving traditional police powers there is a presumption that state law is not preempted unless congress has a clear and manifest purpose to do so

Question 2

Preemption doctrines

Answer 2

1) Express: when federal law explicitly forbids the challenged state/local regulation
2) Conflicting: when federal and state/local regulations are mutually exclusive
3) Frustration of purpose: the state/local law disrupts the purposes for a federal law (think dead beat dads statute)
4) Field: when congress reserves a regulatory area for exclusive federal control (rarely used b/c such broad impact, look for a large regulatory scheme)

Question 3

Dormant commerce clause: regulations/laws

Answer 3

1) in absence of federal regulation, state/local govt may regulate interstate commercial activities so long as the regulation does not discriminate against or unduly burden interstate commerce
2) a state or local regulation that discriminates against out of state econ. actors or activities must meet strict scrutiny
3) a non-discriminatory regulation will be invalid if the burden on interstate commerce outweighs the benefits in furthering the legit govt interest

Question 4

DCC taxes

Answer 4

1) state taxes that discriminate against out of state businesses will be subject to strict scrutiny
2) non-discretionary taxes taxes on out-of-state businesses will be valid only if
(a) taxed activity has a substantial nexus to the state
(b) the tax is fairly apportioned to apply only to the taxpayer’s business activities within the state

Question 5

DCC exceptions

Answer 5

1) congressional authorization takes it out of DCC realm because congress is now acting, and is not dormant
2) when the state/local govt is a market participant but needs to be in the same market as the regulation or action (think AK timber case)

Question 6

Privileges and Immunities Clause (P&I)

Answer 6

1) commonly paired with the DCC
2) state and local governments cannot explicitly discriminate against out of state citizens as to important commercial activities or civil liberties
3) strict scrutiny
4) must actually discriminate not just burden or even unduly burden
5) doesn’t apply to corporations or aliens