P&I, DCC, Contracts Clause Flashcards
Who does the Article IV Privileges and Immunities Clause protect/against whom? What does it protect? When does it apply?
The Article IV P&I Clause protects nonresidents against discrimination by a state.
The clause protects nonresidents’ rights relating to commercial activities (such as the right to pursue a livelihood) and civil liberties.
The clause applies when state laws are intentionally protectionist in nature.
Under Article IV P&I, a state act that discriminates against nonresidents’ is invalid unless _______?
The state act achieves an important government purpose and there are no less discriminatory means available.
True or false: under Article IV P&I, a state’s discriminatory act is upheld if the state is itself a market participant.
False. There is no market participant exception to P&I protection.
What does Fourteenth Amendment Privileges and Immunities Clause protect? What are some examples of these rights? Who is NOT protected?
Rights of national citizens. Right to petition the federal government, the right to vote for federal officers, the right to interstate travel. Corporations are not protected.
True or false: Congress has the exclusive power to regulate foreign commerce.
True.
Describe the Dormant Commerce Clause.
If Congress has not preempted the area, a state may regulate activities affecting interstate commerce but MUST NOT discriminate against out-of-state economic interests or unduly burden interstate commerce.
Under DCC, a state act that discriminates against out of state economic interests is invalid unless ______? (4 exceptions)
1) The state act furthers an legitimate state interest and there are no nondiscriminatory means available. (tough burden to satisfy).
2) The state is acting as a market participant (buying, selling, subsidizing)
3) The state action is to perform a traditional government function.
4) Congress has explicitly consented to state regulation that would otherwise violate the DCC.
If a state act applies equally to both instate and out of state actors (is not discriminatory), but unduly burdens interstate commerce, is it presumptively invalid?
Yes, unless the state interest outweighs the burden on interstate commerce.
True or false: the Article IV P&I Clause is narrower in scope than the DCC. Why?
True. The P&I Clause applies only to protect civil liberties and fundamental commercial activities. The P&I Clause does not protect corporations or aliens.
True or false: the DCC protects only humans who are US citizens.
False. The DCC protects corporations and aliens. DCC protects ALL out of state parties.
What are three ways a state tax regulating interstate commerce can be unduly burdensome?
1) The tax has no substantial nexus with the state. The type of business taxed does not really do business in the state.
2) The tax is not fairly apportioned. The tax does not follow a rational formula.
3) The tax is not fairly related to the services and benefits provided by the state.
Two ways an action may qualify as state action, even if carried out by private entities?
1) Traditional public function: the activity is traditionally and exclusively within the jurisdiction of the state (but in this case has been delegated to the private entity)
2) Significant state involvement in activity (enforcing restrictive covenants, allowing private entities to act under color of law) SOME step beyond merely granting or acquiescing to some private action.
What is the Contract Clause? (in brief)
The Contract Clause limits the ability of states to enact laws that retroactively impair the rights of parties in preexisting contracts.
What level of scrutiny applies to laws that affect preexisting private contracts?
Intermediate scrutiny.
What level of scrutiny applies to laws that affect preexisting public contracts?
Strict scrutiny.
