Relation of Nation and States in Federal System

Question 1

Exclusive Federal Powers

Answer 1

Power of States Expressly Limited. Some powers are exclusively federal because the Constitution limits or prohibits the use of the power by state (e.g., treaty power, coinage of money).

Inherent Federal Powers. Other powers are exclusively federal because the nature of the power itself is such that it can be exercised only by the federal government (e.g., declaration of war, federal citizenship)

Question 2

10th Amendment Exclusive State Power

Answer 2

Reserved Powers. The 10th Amendment provides that all powers not assigned by the Constitution to the federal government are reserved to the states, or to the people.

Federal Regulation. The federal government has virtually unlimited power to regulate the states. Generally, Congress may regulate the states so long as it is exercising an enumerated power. While Congress cannot command state legislatures to enact specific legislation or administer federal regulatory programs, it may encourage state action through the use of its taxing and spending powers (e.g., Congress can condition federal highway funds on the state’s requiring a minimum drinking age of 21).

Question 3

Dormant Commerce Clause

Answer 3

The Dormant Commerce Clause refers to a constitutional principle that is inferred from the Commerce Clause (not specifically enumerated).

If Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action does NOT:

Discriminate against out-of-state commerce;
Unduly burden interstate commerce;
OR
Regulate wholly out-of-state activity.

Legislation that violates any of the above requirements is generally deemed unconstitutional UNLESS:

The state is acting as a market participant rather than a market regulator;

The legislation favors state or local government entities that are performing a
traditional government function;

OR

Congress explicitly permits the legislation.

Question 4

As to whether state law unduly burdens interstate commerce…

Answer 4

A state law that DISCRIMINATES against interstate commerce in a way that operates as a tariff or trade barrier against out-of-state interests is subject to strict scrutiny and is virtually per se unconstitutional.

A nondiscriminatory state law (i.e., the law applies equally to in-state and out-of-state participants) that imposes an incidental burden on interstate commerce will be unconstitutional if the burden it imposes is clearly excessive in relation to the putative local benefits.

Question 5

Supremacy Clause

Answer 5

The Supremacy Clause provides that federal law is the “supreme law of the land.” Any state law that directly or indirectly conflicts with a federal law is void under the Supremacy Clause.

Question 6

Supremacy Clause express v. implied preemption

Answer 6

Express Preemption. Federal law expressly preempts state law when:

The Constitution makes the federal power exclusive; OR

Congress has enacted legislation that explicitly prohibits state regulation in the same area.

Implied Preemption. Federal law implicitly preempts state law when:

Congress intended for federal law to occupy the entire field (intent to occupy a field can be inferred from a framework of regulation so pervasive that Congress left no room for states to supplement it or when there is a federal interest so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject);

The state law directly conflicts with the federal law (e.g., requiring conduct that is forbidden by the federal law or making it impossible to comply with both); OR

The state law indirectly conflicts with the federal law by creating an obstacle to or frustrating the accomplishment of the federal law’s purpose.