NEED TO KNOW Flashcards
Test for pre-emption
Pre-emption may be either express or implied, and is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. Absent explicit pre-emptive language, we have recognized at least two types of implied preemption: field preemption, where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, and conflict pre-emption, where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
Express Preemption
Congress can made federal laws exclusive in a field, and the clearest way to do this is to expressly preclude state or local regulation in the area. Thus, some federal laws contain clauses that expressly preempt state and local laws. (e.g., ERISA – “supersedes any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.”)
Implied Preemption
Conflicts Preemption
Field Preemption
Conflicts Preemption
If a federal and a state law are mutually exclusive, so that a person cannot comply with both, the state law is deemed preemptive. The difficulty often lies in determining whether the laws actually conflict.
Field Preemption
Preemption is also found where federal law wholly occupies a field. Even though federal law does not expressly preempt state law, preemption will be found if there is a clear congressional intent to have federal law occupy a particular area of law. (e.g., immigration)
Three Part Methodology: Privileges and Immunity
- Is there a protected privilege or immunity?
a. Conceptually, framers meant to encompass everything in DOI but cases really only deal with right to work or some type of economic right - Is there discrimination in regard to that protected privilege or immunity based on state or local citizenship or residency?
If you lack either one of the two, there is no violation of the clause
If the answer to both is “yes,” you apply a form of intermediary scrutiny in the form of a means/end test. - This test asks whether the government has “a substantial reason for the difference and treatment,” and whether the “discrimination practice against non-residents bears a substantial relationship to the State’s objective.”
Need first two before can go to 3rd test. Means end test
Dormant Commerce Clause
- Has Congress authorized the state(s) to discriminate against/burden interstate commerce? If yes, then state action is apparently constitutional; if no, go on to next step of methodology.
- Is the state action in question a “regulation” of commerce, or is it instead
a. a subsidy?
States are free to subsidize in a discriminatory way- Thus, if the state is subsidizing instead of regulating, there is no violation of the dormant commerce clause.
b. within the Market Participant Doctrine (MPD)?
If the state acts as a market participant within the limits of the market participant doctrine, it is NOT limited by the DCC.
IF THE ACTION BY THE STATE/LOCAL GOVERNMENT IS NOT PERMITTED UNDER QUESTIONS 1 OR 2, GO ON TO QUESTION 3:
- Does the state regulation discrimination against interstate commerce?
Often it is obvious whether the state is discriminating: particularly if the regulation explicitly classifies based on the geographic origin, source, or destination of the good or service in question. Thus, FACIAL discrimination–a law that explicitly classifies based on geography–will generally be viewed as discriminatory.
Sometimes it will be claimed that a facially neutral law is discriminatory because it has a disparate effect/impact (discrimination in effect), or because the legislature had a protectionist/discriminatory purpose (discrimination in intent/purpose). Often effects/intent discrimination is NOT sufficient, in itself, to render a law discriminatory under the DCC.
If no discrimination is found against IC, go on to number 4. If yes:
a. Means/End Balancing. The state must identify permissible, non-protectionist ends/goals. Then, the court asks whether the means–which is the regulation in question–actually works, in two senses: a. Does it work: does the regulation actually further the permissible end; and b. Alternatives? Are there less discriminatory means, or non-discriminatory means, which would serve the permissible ends equally well?
b. IF a significant, permissible state end survives means-end testing, then the Court will balance. As we discussed, balancing generally involves weighing incommensurables (i.e., comparing apples and oranges, or determining whether a table is heavier than it is tall). Nonetheless, the Court will balance the State’s ends (as they have survived means/end testing) against the burden on interstate commerce. The court, in short, will balance the local benefits against the negative impact on IC.
4. IF the state regulation does not discriminate against IC, the Court may ask if the state regulation burdens IC. A non-discriminatory burden on IC occurs when a state regulation applies equally to all (without regard to geographically origin, destination, etc.), but nonetheless slows IC.
Non-discriminatory burdens on IC are often constitutional; indeed, some Justices take the position they should always be constitutional, to avoid the judicial subjectivity involved in balancing.
If a burden on IC is found, the court generally applies means-end testing as described above in regard to discrimination against IC, except that the Court is generally more lenient toward the state in burden cases. Next, if a state end survives means-end testing, the court will balance. The classic balancing test in burden cases is stated as follows: “Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”
