STATE POWER AND REGULATION

Question 1

State Power and Regulation Checklist

Answer 1

• Supremacy Clause
  
  • Express Preemption
  • Implied Preemption
    
    • Conflict Preemption
    • Object Preemption
    • Field Preemption
• Contracts Clause
  
  • Private Contracts
  • Public Contracts
• Privileges and Immunities
• Dormant Commerce Clause
  
  • Discrimination
    
    • Exceptions
      
      • Market Participant
      • Express Congressional Approval
  • Unduly Burden to Interstate Commerce

Question 2

Supremacy Clause

Answer 2

The Supremacy Clause provides that the Constitution, the laws of the U.S., and all U.S. treaties are the supreme law of the land, superseding any conflicting state and local laws.

Question 3

Supremacy Clause - Express Preemption

Answer 3

A federal law can preempt state and local laws by expressly providing that state and local governments may not legislate within a particular area.

Question 4

Supremacy Clause - Implied Preemption

Answer 4

If a federal law does not expressly prohibit the enactment of state and local laws, the federal law will still preempt state and local laws under the following circumstances:

(i) conflict preemption
(ii) object preemption, or
(iii) field preemption

Question 5

Supremacy Clause

Implied Preemption - Conflict Preemption

Answer 5

Conflict preemption occurs when a congressional act or federal law preempts any conflicting state or local law. However states may enact laws that are narrower than, but in compliance with, federal law.

Question 6

Supremacy Clause

Implied Preemption - Object Preemption

Answer 6

Object Preemption occurs when state law obstructs or interferes with a federal law’s objective.

Question 7

Supremacy Clause

Implied Preemption - Field Preemption

Answer 7

Field preemption occurs when state or local laws are preempted if Congress demonstrates its intent to occupy the entire field.

Question 8

Contracts Clause

Answer 8

The Contracts Clause prevents states from passing legislation that would retroactively impair the obligation of contracts. The Contracts Clause only applies to existing contracts.

Question 9

Contracts Clause - Private Contracts

Answer 9

If state legislation substantially impairs a private contract, the government’s impairment must be reasonable and necessary to achieve an important government purpose.

Question 10

Contracts Clause - Public Contracts

Answer 10

If state legislation interferes with a contract to which the state is a party, the government’s impairment must be reasonable and necessary to achieve an important government purpose that could not be accomplished through less restrictive means.

Question 11

Privileges and Immunities

Fourteenth Amendment Privileges and Immunities

Answer 11

States may not intentionally discriminate against out of state residents by passing legislation that restricts civil liberties or commercial activities. However, discriminatory state laws will be valid if the state can show that there is a substantial reason for the difference in treatment because

(1) the out of state residents are a source of the problem that the government is attempting to resolve, and
(2) no less restrictive means exist to achieve the important government interest

Question 12

Dormant Commerce Clause

Answer 12

Where Congress has not already regulated within interstate commerce, state and local laws may regulate interstate commerce, only if the state legislation does not (i) directly discriminate against out of state commerce or (ii) unduly burden interstate commerce.

Question 13

Dormant Commerce Clause - Discrimination

Answer 13

Under the DCC, a law that discriminates against out of state commerce is presumed invalid unless the state can show

(1) it furthers an important state interest, and
(2) there are no other non-discriminatory alternatives to achieve that interest

Question 14

DCC - Discrimination Exceptions

Market Participant

Answer 14

A state is a market participant when it is hiring, selling, or purchasing goods. If a state is acting as a market participant, the state is permitted to prefer its own citizens and discriminate against out-of-state commerce.

Question 15

DCC - Discrimination Exceptions

Express Congressional Approval

Answer 15

Congress may expressly give permission to states to enact legislation that discriminates against out of state commerce.

Question 16

DCC - Unduly Burden to Interstate Commerce

Answer 16

Even if a law is non-discriminatory, it may still be invalid if it places an undue burden on interstate commerce. Courts will balance the government interest with the harm to interstate commerce.