STATE POWERS & LIMITATIONS Flashcards
What is the State Power?
“The 10thAm. provides that powers not granted to the Federal Gov. nor prohibited by the Constitution, are reserved for the states or the people.”
States need only prove that they had a legitimate interest in passing the law.
Note:This is referred to as state’s “police power.” Police power is broad and extends to all types of laws governing the state. Laws on gun possession, state taxes, state rules on dividing property upon divorce, making certain types of domestic pets legal, etc. The states can do what they want, as long as they do not violate the Constitution or step on the toes of Congress. This is where the limitations come in and you’ll be learning that in a second.
MBE TIP-TAXING: States do have the ability to imposes taxes from their police power. However, their taxing power is not plenary like it is for Congress.
Ex: States cannot tax in a way that interferes with interstate commerce and violates the dormant commerce clause. So, states are allowed to tax as long as they do not overstep their boundaries. Also, states cannot directly tax the federal govt. States can tax federal employees as long as it is not discriminatory, and they are also taxing non-federal employees as well.
What are the States’ Power Limitations?
- Preemption
- Dormant Commerce Clause 3. Privileges and Immunities
- Contracts Clause
What IS PREEMPTION, What are the types and what clause establish it?
The SUPREMACY CLAUSE states that the Constitution is the supreme law of the land. Any state law that directly conflicts with federal law, impedes the objectives of federal law, or regulates an area traditionally occupied by Congress, will be preempted by federal law. Supremacy issues arise when government powers are concurrent and Congress has acted or passed legislation.
The types are:
a) Express Preemption
b) Implied Preemption
What is EXPRESS PREEMPTION?
State and local laws are preempted (deemed unconstitutional) there is explicit language in a federal law that specifically states that the law will preempt all state law.
Note: Express preemption is easy to analyze but also easy to overlook. Look for your fact pattern to have a federal statute containing language like this, “This federal statute preempts all state and local laws relating to…”
What is IMPLIED Preemption?
Per the Supremacy Clause, a federal law will preempt a state law if the state law:
1) Directly conflicts with existing federal law –> If the federal and state laws are mutually exclusive, federal law preempts state law.
Note: Mutually exclusive just means it’s a direct conflict and both laws cannot co-exist without conflicting the other.
Note: State laws that are more restrictive than federal laws will be deemed constitutional. State laws that are less restrictive, will be unconstitutional.
2) Impedes the objective of a federal law, or
Notes: You have to dig a bit for this analysis. Look at why the federal law exist, not just what it’s regulating. Also, a state law that furthers the federal objective, even if it is more restrictive, will not be preempted.
3) Relates to a matter that falls within a preempted field –> If the state law relates to a matter that falls within a [preempted field], then the state law is preempted.
Note: Field preemption is rare. The best argument from precedent is immigration. You can make a stretch argument on an essay if Congress has made many laws regarding a particular field (regulatory scheme)
Note: A federal law cannot preempt the state law if the federal law in unconstitutional. This requires an inquiry into the source of power/limitations for the federal law.
What is the DORMANT COMMERCE CLAUSE?
The Dormant Commerce Clause restricts the states and local govt. from regulating activity that affects interstate commerce if the regulation is
1) Discriminatory against out-of-staters, or
2) Unduly burdensome on interstate commerce.
What is the 1ST Step to Analyze DCC when the law discriminate against out-of-staters?
If the state law discriminates against out-of-staters, then the state law is unconstitutional unless it meets the STRICT SCRUTINY TEST which has 2 elements:
1) the regulation is necessary to achieve an important NON-economic govt. interest.
[Important non-economic govt. interest] –> How to analyze? : Identify the govt. interest (purpose for passing the law) and determine whether it’s “important” or not. Keep in mind that this element usually fails if the law is a product of economic protectionism. What the heck is economic protectionism? Economic protectionism occurs when a state passes a law that protects their institutions or their residents from economic competition.
2) There are not other alternatives and An exception applies.
What are the EXCEPTIONS Available to the States’ regulations that do not meet the Strict Scrutiny test?
If the state law does not pass the scrutiny, the discrimination may still be ok if one of the exceptions applies:
1) Market participant.
A state may discriminate against out-of-staters when the state law allows the state to act as a buyer or seller in the market. Regarding buying, this exception applies if the law is regulating only the state’s purchasing conduct and not private parties. –> In other words: Just like you can decide you only want to buy from California farmers, the state of California can do that too. But again, this exception applies if the statute is ONLY regulating the state’s buying and selling decisions. If it regulates state actors and private parties, this exception does not apply.
2) Congressional approval –> A state may discriminate against out-of-staters when the state law is expressly approved by Congress.
Note: This is simple, and there is no rule for it. If Congress approves the state’s discriminatory law, then all mighty Congress has made the state law ok. You need specific facts saying Congress has approved the specific discriminatory action for this to be met
3) Traditional public function:
A state may discriminate against out-of-staters when the state law is performing a function traditionally given to the states under their powers.
Ex: Public universities that charge lower tuition to in-state citizens as opposed to out-of-state citizens.
Note: In all of the rules, I mentioned out-of-staters. These rules also apply to local laws that discriminate against out-of-towners.
Ex: LA County passes law that residents of its county must buy their produce from LA County farmers. This law discriminates against farmers from other counties in Los Angeles.
What is the 2ND Step to Analyze the DCC ?
Does the state law unduly burden interstate commerce? Even if the state law makes it pass question #1, the law will still be unconstitutional if it unduly burdens interstate commerce. The law is unduly burdensome if the law’s benefit to the state is outweighed by the negative impact on interstate commerce.
Notes:
1. Remember! In order for the state law to survive a dormant commerce clause attack, it must pass both hurdles.
a) The discrimination hurdle and b) The unduly burdensome hurdle.
- When discussing DCC on an essay, start with rule for Commerce Clause. See LF Sample Answer for July 2018.
- When DCC is being tested, always watch out for a Privileges & Immunities and Equal Protection.
Define the Privileges & Immunities under article 4. [Privileges and Immunities is represented in both Article 4 and the 14thAmendment.]
● Article 4 - Privileges and Immunities of Article 4 prevents a state or city from discriminating against noncitizens regarding their fundamental rights, and notably their economic rights like the right to earn a living. If the state does discriminate against non-citizens in such a way, the law is only constitutional if
1) The state can show that the non-residents are at least part of the problem the govt. is attempting to solve, and
2) The law at hand is the least discriminatory means available.
Notes:
a. Corporations and aliens /noon-citizens are not protected by this clause.
b. This clause, just like Dormant Commerce Clause, can be triggered when the state passes a law that’s essentially an economic protectionism law. So, keep that in mind when you are doing your issue spotting.
c. Easy way to remember Article 4 Privileges and Immunities is, resident vs. non-resident. Article 4 is triggered when the law is discriminating against resident vs. non-resident with regards to fundamental rights/economic interests.
Define the Privileges & Immunities under 14th Amendment. [Privileges and Immunities is represented in both Article 4 and the 14thAmendment.]
14th Am. Privileges or Immunities prohibits states from denying their own citizens rights of national citizenship.
Note: This is commonly triggered by durational residency requirements. In other words, when state laws discriminate old residents vs. new residents, which then interferes with the right to travel.
Ex: California says you must be a citizen of California for at least 15 years to be eligible for state welfare assistance and other state given benefits.
Ex: California only gives a license to practice law in their state to those who have lived in California for at least 3 years.
