Limits on state regulatory power

Question 1

Where is the doctrine of preemption found?

Answer 1

Art VI

Question 2

Varieties of preemption

Answer 2

express and implied

Question 3

express preemption

Answer 3

clause states that state laws are superceded or precluded; clear congressional intent

Question 4

types of implied preemption

Answer 4

1. field
2. conflict
   a. impossibility
   b. obstacle

Question 5

field preemption

Answer 5

C has regulated area so much there is no room for the state to supplement or complement law

Question 6

field preemption aspects

Answer 6

1. clear showing that C meant to occupy entire area

2. presumption against for traditionally local concerns

Question 7

impossibility preemption

Answer 7

impossible to comply w/ both state and fed laws

Question 8

obstacle preemption/ frustration of purpose

Answer 8

C enacted a complete scheme of regulation and the state law interferes

Question 9

dormant commerce clause

Answer 9

forbids state protectionism

Question 10

3 major federalism doctrines placing structural limits on states

Answer 10

1. doctrine of preemption
2. dormant commerce clause
3. privileges and immunities clause of Art IV

Question 11

Where is the doctrine of preemption found?

Answer 11

derives from the Supremacy clause of Art VI, cl 2

Question 12

What does the dormant commerce clause say?

Answer 12

w/o authorization, states can’t regulate in a way that discriminates against or unduly burdens interstate commerce

Question 13

What is the scope of the DCC?

Answer 13

same as commerce clause: channels, instrumentalities, substantial effect

Question 14

Lopez frameword

Answer 14

1. does the regulate discriminate against interstate commerce
   a. yes–rigorous means-end scrutiny
   b. no–determine if undue burden on interstate commerce
   i. if so, unconst.

Question 15

rigorous means-end scrutiny

Answer 15

ends must be legitimate and only means

Question 16

When is discrimination permissible under DCC?

Answer 16

when the state has no alternative means of protecting a legitimate state interest

Question 17

Pike balancing test

Answer 17

determine if the burden on interstate commerce outweighs the benefit to the regulating state

Question 18

What is the level of scrutiny of DCC if the state has a legitimate interest and no alternatives?

Answer 18

quite deferential

Question 19

What are the exceptions to the DCC?

Answer 19

congressional authorization

market participation doctrine

Question 20

What did Prudential Insurance Co. v. Benjamin show?

Answer 20

DCC is only relevant if C silent. If C says states can regulate an area, then they can do so even if it is discriminatory

Question 21

market participation doctrine

Answer 21

exception to DCC when govt is buyer or seller and at least 1 other party is a private entity/individual

Question 22

To whom does the Privileges and Immunities Clause of Art IV §2 apply?

Answer 22

only to states

Question 23

What did Kassel v. Consolidated Freightways show?

Answer 23

where state regulation clogs channels of commerce, violates DCC

Question 24

What level of scrutiny is applied to P and I clause?

Answer 24

intermediate scrutiny

Question 25

Analysis of P and I clause.

Answer 25

1. Is it a state or local law being challenged ?
2. Is the P a citizen?
3. Does the law discriminate on the basis of state residency?
4. Is the discrimination w/ respect to a protected right?
5. Is the law “substantially related” to a “substantial” state interest?
6. Are non-residents a peculiar source of harm against which the law aims to protect?

Question 26

What does the P and I clause do?

Answer 26

equality provision that restrains states from favoring their citizens

Question 27

Who is a “citizen” for P and I clause?

Answer 27

a natural person/ not corp

born in US or naturalized

Question 28

What rights does P and I clause protect?

Answer 28

fundamental rights

those bearing on the vitality of a nation as a single entity

Question 29

examples of rights protected by P and I

Answer 29

right to earn a livelihood

right to raise children in manner parents choose

Question 30

doctrinal standard for discrimination to NOT violate P and I clause

Answer 30

“substantial state interest” that is “substantially related” to the interest

Question 31

What did the Camden case decide?

Answer 31

discrimination impermissible whether by local, municipal, or state govt

Question 32

Are there exceptions to P and I clause?

Answer 32

no market participant exception