Residual State Powers—and Their Limits (Dormant Commerce Clause) - Interstate Privileges and Immunities and Federal Preemption of State Law

Question 1

U.S. Constitution, Art. IV, §2

Answer 1

The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

Question 2

U.S. Constitution, Art. VI, §2

Answer 2

Supremacy Clause

Question 3

Two-Step Analysis of Interstate Privileges and Immunities

Answer 3

1. The court asks whether a state discriminated against out-of-staters with regard to “‘privileges’ and ‘immunities’ bearing upon the vitality of the Nation as a single entity.”
2. If it has, the court then asks whether the state has a good reason for the discrimination, and whether the discrimination closely fits the asserted justification.

Question 4

Supreme Court of New Hampshire v. Piper

Answer 4

States must have a substantial reason for discriminating against noncitizens and the discrimination must have a substantial relationship to the state’s objective

Question 5

Supreme Court of New Hampshire v. Piper

Issue

Answer 5

Whether New Hampshire’s rule to only admit state residents to its bar violated the Privileges and Immunities Clause.

Question 6

Supreme Court of New Hampshire v. Piper

Facts

Answer 6

Piper lived near the Vermont/ New Hampshire border. She qualified for, took and passed the NH bar exam with the intention of becoming a New Hampshire resident, but then found becoming a resident would be difficult because of personal matters. Her petition to waive the residency rule was denied.

Question 7

Supreme Court of New Hampshire v. Piper

Reasoning

Answer 7

Practicing law is a fundamental right under the Privileges and Immunities Clause. It’s important to the national economy and sometimes parties near out-of-state counsel for unpopular federal claims. Although lawyers are officers of the court, they have no political power so states don’t have to fear them taking control of the government. Appellant’s claims do not meet the substantiality test.

Question 8

Supreme Court of New Hampshire v. Piper

Holding

Answer 8

New Hampshire’s rule violates the Privileges and Immunities Clause.

Question 9

Examples of Rights Protected by the Privileges and Immunities Clause

Answer 9

• The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise
• To claim the benefit of the writ of habeas corpus
• To institute and maintain actions of any kind in the courts of the state
• To take, hold and dispose of property, either real or personal.

Question 10

Express Preemption

Answer 10

The statute states that the federal law preempts the state law.

Question 11

Implied Field Preemption

Answer 11

The federal law is so pervasive that Congress left no room for state legislation. [“congressional intent to occupy an entire field”] Gade dissent (pg. 671)

Question 12

Implied Conflict Preemption

Answer 12

There’s no physical way to comply with both the federal and state law, or the state law is an obstacle to the full accomplishment of the federal law.

Question 13

Gade v. National Solid Wastes Management Association

Answer 13

State law regulating occupational health and safety issues that are not approved by the Secretary of Labor are preempted by the OSA Act, even if they serve more than one purpose.

Question 14

Gade v. National Solid Wastes Management Association

Issue

Answer 14

Whether OSHA preempted Illinois’s Hazardous Waste Crane and Hoisting Equipment Operators Licensing Act and the Hazardous Waste Laborers Licensing Act

Question 15

Gade v. National Solid Wastes Management Association

Facts

Answer 15

The National Solid Wastes Management Association sought to enjoin IL from enforcing the licensing acts claiming that OSHA preempted them. The OSH Act’s goal was to protect workers and the licensing acts were meant to protect workers and the general public

Question 16

Gade v. National Solid Wastes Management Association

Reasoning\

Answer 16

Congress’s intent was that workers would only have one set of rules, and state law may not interfere with federal law. The Illinois laws interfere with Congress’s goal and so are implicitly in conflict with the OSH Act. § 18(b) preempts state law unless the state takes over and submits its own plan and the Secretary approves it. § 18(a) states that state law that’s not regulated by the OSH Act is not preempted. § 18(c) says that state plans will be approved only if they “are required by compelling local conditions” and “do not unduly burden interstate commerce.” § 18(f) says the secretary may withdraw her approval. Taken as a whole, the OSH Act does not allow states to supplement it with their own law. This is true of state laws that have dual purposes.

Question 17

Gade v. National Solid Wastes Management Association

Holding

Answer 17

“In sum, a state law requirement that directly, substantially, and specifically regulates occupational safety and health is an occupational safety and health standard within the meaning of the Act. That such a law may also have a nonoccupational impact does not render it any less of an occupational standard for purposes of pre-emption analysis. If the State wishes to enact a dual impact law that regulates an occupational safety or health issue for which a federal standard is in effect, § 18 of the Act requires that the State submit a plan for the approval of the Secretary. . . .” (pg. 668).