The Federal System: RELATIVE SPHERES OF FEDERAL AND STATE POWER

Question 1

EXCLUSIVE FEDERAL POWERS

Answer 1

• Some powers are exclusively fed (ex. treaty power, coinage of money, & duty on imports, declaration of war, federal citizenship, naturalization, & borrowing money on US credit).
• Any state exercise of these powers would undermine the federal system.
• On exam, do not allow states to take actions that might touch upon foreign relations.

Question 2

EXCLUSIVE STATE POWERS

Answer 2

• Federal gov has only those powers granted to it by Constit
• State govs have “unlimited” powers, all powers not prohibited to them by Constit.
• 10th Amend: all powers not delegated to fed gov by Constit are reserved to states (or to the people).
• However, given the expansive interpretation of fed powers (ex. commerce power), little state power is exclusive.

Question 3

CONCURRENT FEDERAL AND STATE POWER—SUPREMACY CLAUSE

Answer 3

• Most governmental power is concurrent, belonging to both states & fed gov.
• Thus, it is possible for states & fed gov to pass legislation on same SM.
• When this occurs, Supremacy Clause: fed law is supreme, & state law is rendered void if it is preempted.
• State law may be preempted expressly/impliedly.

Question 4

Express Preemption

Answer 4

• Fed law may expressly provide that states may not adopt laws concerning SM of fed legislation.
• Note: will be narrowly construed.

Question 5

Implied Preemption

Answer 5

• Even if fed law does not expressly prohibit state action, state laws will be impliedly preempted if they actually conflict w/ fed reqs, prevent achievement of fed objectives, or Congress has preempted entire field.

Question 6

Implied Preemption: Actual Conflict Between State and Federal Law Requirements

Answer 6

• A valid act of Congress/fed regulation preempts any state/local action that actually conflicts w/ fed rule
• Whether by commanding conduct inconsistent w/ that required by fed rule, or by forbidding conduct that federal rule is designed to foster.

Question 7

Implied Preemption: State Prevents Achievement of Federal Objective

Answer 7

• State law will also be impliedly preempted if it interferes w/ achievement of a fed objective.
• This is true even if state/local law was enacted for some valid purpose & not merely to frustrate fed law.

Question 8

Implied Preemption: Field Preemption

Answer 8

• State/local law may also be preempted if it appears Congress intended to “occupy” entire field, thus precluding any state/local regulation.
• Cts will look at fed regulatory scheme to deduce Congress’s intent.
• Ex. if fed laws are comprehensive/federal agency is created to oversee the field, there’s preemption

Question 9

Presumption Against Preemption

Answer 9

• In all preemption cases, especially any involving a field w/in state’s power (ex. regulations for health, safety, or welfare), it will start w/ presumption that state police powers are not to be replaced unless that’s the clear & manifest purpose of Congress.

Question 10

ABSENCE OF FEDERAL AND STATE POWERS

Answer 10

• Some powers are denied to both Congress & states
• Ex: Qualifications Clauses, setting qualifications to serve in Congress, are exclusive & cannot be altered by Congress/states.
• Ex: State-imposed term limit for members of Congress invalid
• Ex: State law instructing each member of its congressional delegation to support a constitutional amendment for term limits, & providing that failure to do so be noted on ballot, was invalid b/c it imposes a substantive qualification rather than regulates “manner” in which elections are held

Question 11

INTERSTATE COMPACT CLAUSE

Answer 11

• States may enter into agreements/compacts w/ other states w/ consent of Congress.
• Not all agreements between states are “compacts” requiring congressional consent.
• Compact Clause reaches only interstate agreements that increase state’s political power at expense of fed supremacy (ex. agreement where one state cedes territory to another state).
• Congressional consent not required for multistate tax compact b/c compact does not give member states any powers they could not exercise in its absence
• SC has the power to interpret such compacts
• Member states do not have final authority over interpretation.

Question 12

INTERSOVEREIGN LITIGATION: SUITS BY THE UNITED STATES AGAINST A STATE

Answer 12

• US may sue a state w/o its consent.

Question 13

SUITS BY STATE AGAINST UNITED STATES—UNITED STATES MUST CONSENT

Answer 13

• Public policy forbids a state from suing US w/o its consent.
• Congress can pass legislation allowing US to be sued by a state in given situations.

Question 14

FEDERAL OFFICER AS DEFENDANT

Answer 14

Limitation
- Suits against fed officer are brought against US itself if judgment would be satisfied out of public treasury/ would interfere w/ public admin - not permitted.

Specific Relief Against Individual Officer
- Specific relief against officer as an individual will be granted if officer acted ultra vires (beyond one’s legal authority):
(1) Beyond his statutory powers; or
(2) Valid power was exercised in an unconstitutional manner.

Question 15

SUITS BY ONE STATE AGAINST ANOTHER

Answer 15

• One state may sue another state w/o latter’s consent.
• SC has exclusive original jurisdiction

Question 16

INTERGOVERNMENTAL TAX AND REGULATION IMMUNITIES: FEDERAL TAXATION AND REGULATION OF STATE OR LOCAL GOVERNMENTS

Answer 16

• 10th Amend: powers not delegated to US by Constit, nor prohibited to states, are reserved to states.
• This reservation of power is often a restriction on Congress’s power to regulate the states.

Question 17

Tax or Regulation Applying to State and Private Entities—Valid

Answer 17

• SC will not likely strike down on 10th Amend grounds a tax/regulation that subjects states/local govs to regulations/taxes that apply to both public & private sector.
• In such cases, states’ interests are best protected by states’ representation in Congress.

Question 18

Tax or Regulation that Applies Only to States

Answer 18

• However, 10th Amend does limit Congress’s power to regulate states alone by requiring states to act in a particular way.
• Congress may not compel states to enact/enforce a regulatory program.
• Ex. Fed statute requiring states to either regulate radioactive waste/take title to it is beyond Congress’s power
• If Congress passes a tax that does not apply to private businesses but merely taxes state gov entities, there is a possibility the Ct would use 10th Amend to prohibit the tax.

Question 19

Exception—Civil Rights

Answer 19

• Congress may use its power under 14th & 15th Amends to restrict state activities that it determines would violate civil liberties of persons w/in the state.

Question 20

Exception—Spending Power Conditions

Answer 20

• Congress may also “regulate” states through spending power by imposing conditions on grant money to state/local govs (grants w/ strings).
• Conditions will not violate 10th Amend if conditions:
  (i) Clearly stated;
  (ii) Relate to program’s purpose; &
  (iii) Not unduly coercive.

Question 21

What Is “Unduly Coercive”?

Answer 21

• Condition that goes beyond mere “incentive” & turns into “compulsion”/“undue influence” violates principles of federalism.
• However, the Ct has not set out a brightline test for making this determination.
• Ex. Law that threatens to withhold from states current Medicaid funding if they do not greatly expand Medicaid programs amounts to a “gun to the head,” given the law threatens to withhold about 10% of an average state’s total budget

Question 22

Commandeering State Officials

Answer 22

• 10th Amend prohibits Congress from commandeering state officials by requiring states to regulate their own citizens.
• Ex. Striking portions of a fed gun law that required state law enforcement officers to collect from gun dealers reports regarding prospective handgun purchasers & to conduct background checks on them
• However, the Ct has allowed Congress to regulate states by prohibiting them from performing certain acts.
• Ex. Upholding fed act that bars states (& private resellers) from disclosing personal info required on drivers’ license applications

Question 23

STATE TAXATION AND REGULATION OF FEDERAL GOVERNMENT

Answer 23

• Based on Supremacy Clause: States cannot interfere w/ or control operations of fed govt.
• Intergovernmental immunity doctrine
• Prohibits state laws that regulate US directly/ discriminate against fed gov, unless fed gov has clearly & unambiguously waived immunity.
• A state law that indirectly increases costs for fed gov is allowed only if it imposes those costs in a neutral, nondiscriminatory way

Question 24

No Direct Tax on Federal Instrumentalities

Answer 24

• State tax levied directly against property/operation of fed gov w/o consent of Congress is invalid.

Question 25

Nondiscriminatory, Indirect Taxes

Answer 25

• Nondiscriminatory, indirect taxes on fed gov/its property are permissible if they do not unreasonably burden fed gov

Question 26

State Regulation of Federal Government

Answer 26

• States cannot regulate fed gov activities w/o Congress consent
• Instrumentalities & agents of fed gov are immune from state regulations relating to performance of their fed functions.

Question 27

PRIVILEGES AND IMMUNITIES CLAUSES: INTRODUCTION

Answer 27

2 Privileges and Immunities Clauses:
(1) 14th Amend Privileges or Immunities Clause
(2) Interstate Privileges and Immunities Clause of Article IV.
- 14th Amend clause protects attributes of US citizenship & is rarely applicable.
- Article IV provision prevents some discrimination by states against nonresidents, & is usually more relevant on bar exam.

Question 28

ARTICLE IV—PRIVILEGES OF STATE CITIZENSHIP

Answer 28

• Interstate Privileges & Immunities Clause: “Citizens of each state shall be entitled to all Privileges & Immunities of citizens in the several states.”
• Thus, it prohibits discrimination by a state against nonresidents.

Question 29

Corporations and Aliens Not Protected

Answer 29

• Corporations & aliens are not citizens of a state for Privileges and Immunities Clause.

Question 30

Only “Fundamental Rights” Protected

Answer 30

• Interstate Privileges & Immunities Clause prohibits discrimination by a state against nonresidents of the state when discrimination concerns “fundamental rights”—i.e., rights relating to important commercial activities (such as pursuit of a livelihood) or civil liberties.
• However, Clause applies only if discrimination is intentionally protectionist in nature.
• Ex. state law limiting Freedom of Info Act requests to state citizens did not violate Privileges & Immunities Clause when it interfered w/ nonresident’s vocation of obtaining property records for clients, b/c there was no evidence that discrimination was protectionist in nature
• The following protectionist measures have been struck down:

(1) Statute charging nonresident commercial fishermen substantially more for commercial fishing license than resident commercial fishermen ($2,500 vs. $25)
- Vast difference between resident & nonresident recreational hunting license constitutional since no essential commercial activity involved

(2) Statute giving resident creditors priority over nonresident creditors as to assets of foreign corporations in receivership proceedings

(3) Statute/ct rule requiring state residency to be licensed to practice law w/in the state

(4) State income tax only on nonresidents who earn money w/in the state and

(5) State law requiring private sector employers to give hiring preference to residents absent a closely related substantial justification (see below)
- But states may require person to be a resident to hold gov employment

Question 31

Substantial Justification Exception

Answer 31

• A state law discriminating against nonresidents may be valid if state has substantial justification for different treatment.
• Must show that nonresidents either cause/are part of the problem it is attempting to solve, & that there are no less restrictive means to solve problem.
• Stated another way, law must be necessary to achieve an important government purpose.

Question 32

Note—Relationship to Commerce Clause

Answer 32

• Although Article IV Privileges & Immunities Clause & Commerce Clause may apply different standards & produce different results, they tend to mutually reinforce each other.
• Consequently, they both have to be considered in analyzing bar exam questions.

Question 33

FOURTEENTH AMENDMENT—PRIVILEGES OF NATIONAL CITIZENSHIP

Answer 33

• 14th Amend Privileges or Immunities Clause prohibits states from denying their citizens the privileges & immunities of national citizenship, such as right to petition Congress for redress of grievances, right to vote for federal officers, right to enter public lands, right to interstate travel, & any other right flowing from the distinct relation of a citizen to US Gov

Question 34

Corporations Not Protected

Answer 34

Corporations are not citizens & are not protected

Question 35

Bill of Rights Not Included

Answer 35

• Fundamental rights protected against federal abuse (first 10 Amends) are not privileges/immunities of national citizenship w/in meaning of 14th Amend; nor are other basic rights as right to live, work, & eat
• Thus, the guarantees of Bill of Rights are protected from state action only by Due Process & Equal Protection Clauses of 14th Amend

Question 36

Right to Travel and the Privileges or Immunities Clause

Answer 36

• Right to travel, protected by 14th Amend, includes the right of newly arrived citizens to enjoy the same privileges & immunities as are enjoyed by other citizens of the state.