Federalism Flashcards
PREEMPTION
What is preemption?
RULE: The Supremacy Cl states that the Const AND the laws/treaties made p/t it are the SUPREME LAW OF THE LAND
BOTTOM LINE: valid federal law/treaties OVERRIDES (preempts) inconsistent state law
Note: A state law that has a HIGHER std than the federal law is OK as long as it is possible that a person can comply with BOTH AND as long as federal regulation in the field is NOT exclusive
PREEMPTION: 3 Methods
What are 3 key ways in which preemption can operate to override an inconsistent state law?
1) EXPRESS PREEMPTION: When Congress has authority to act, it can state that its pwr is EXCLUSIVE in a field;
→ If there is express preemption then ALL state/local laws in that area are preempted
2) IMPLIED PREEMPTION: nws silence in the statute, state/local laws can be preempted IF…
A. Mutually Exclusive: It is IMPOSSIBLE for someone to SIMULTANEOUSLY comply w/ both fed and state laws
→ example: Fed Maple syrup labeling law requiring labeling and WI state law that bans all labeling – literally impossible to comply w/both
NOTE: The general rule is that states can grant their citizens GREATER PROTECTIONS (i.e. states can be more strict), UNLESS Congress intended otherwise
B. Impeded Fed Objective: If the state law impedes the achievement of a federal OBJECTIVE
→ example: Fl law that denied unemployment claims to employees that filed grievances w/the NLRB was disallowed through conflict preemption
→ i.e. “Conflict Preemption”
C. Congress evidences a clear INTENT to preempt state law
→ example: e.g. fed immigration laws
→ i.e. “Field Preemption”
3) PREMPTION b/c of INTERGOVERNMENTAL IMMUNITY: States may not tax/regulate a federal gov’t activity
→ example: McCullough vs. MD – M.D not allowed to levy selective tax on Federal Bank – “The power to tax is the power to destroy”
RULE: It is unconstitutional to pay a state tax from the Federal Treasury
→ example: Stores on Army Bases that are run by the army are not taxed b/c this would essentially be paying of taxes from federal treasury
DORMANT COMMERCE CLAUSE
What is the dormant commerce cl?
** USUALLY 2-3 Questions on this topic on the BAR EXAM **
“DORMANT COMMERCE CLAUSE: — A/k/a:
“Negative implications of the commerce clause”
Dormant Commerce Clause = A state/local law WILL BE unconstitutional IFit places an UNDUE burden on interstate commerce
Note: The commerce clause has 2 MEANINGS:
- Commerce Clause = Authorization for Congress to ACTand regulate interstate commerce; OR
- Dormant Commerce Clause = Authorization for Congress to LIMIT what state and local gov’ts may do
***EXAM TIP: Focus on the actor in the question. IF:
(i) Congress is acting — then this may be a regular commerce clause issue
BUT, IF
(ii) State or Local Actor — then this may be a dormant commerce clause issue where the action could be held unconstitutional IF it places an undue burden on interstate commerce
P and I CLAUSE OF ARTICLE IV
What is the privileges and immunities cl of Art. IV?
P and I Clause of Art IV = an anti-discrimination clause that applies ONLY when the state or local Gov’t is discriminating against out of state citizens
“No state of municipality may deny CITIZENS OF OTHER STATES the privileges and immunities it affords ITS OWN CITIZENS w/o a substantial justification”
NOTE: corporations and aliens CANNOT sue under P and I of Art. IV (CITIZENS only)
Allowable denial to out-of-state citizens: States can mandate that police officers have to live in the state
P and I CLAUSE OF 14th AMENDMENT
What is the privileges and immunities cl of the 14th Am?
P and I Cl of 14th A.: Preserves a person’s RIGHT TO TRAVEL from one state to another
On Bar EXAM just know that – this clause is ALWAYS the WRONG answer UNLESS the question is dealing w/a PERSON’S RIGHT TO TRAVEL
STEP 1 of Analysis
ASK: Does the state law discriminate against out-of staters?
IF NO DISCRIMINATION:
What is the proper analysis if a state/local law does NOT discriminate against out-of-staters?
IF NO DISCRIMINATION:
FIRST: the Privileges and Immunities Cl of Art. IV DOES NOT APPLY (b/c there is NO discrimination)
SECOND: If the law burdens interstate commerce, it violates the Dormant Commerce Cl IF its BURDEN on interstate commerce outweighs the BENEFITS of the law
→ example: Illinois rqmt for curved mud guards was not discriminatory b/c it applied to all truckers BUT the burden on interstate commerce was much greater than any potential benefit
BUT If the law DOES NOT burden interstate commerce, then not a P and I issue.
STEP 1 of Analysis
ASK: Does the state law discriminate against out-of staters?
IF YES DISCRIMINATION:
What is the proper analysis if a state/local law DOES discriminate against out-of-staters?
IF YES DISCRIMINATION:
FIRST: if the law discriminates vs. out-of-staters w/ regard to important economic activities(e.g. earning a wage) OR civil liberties, the law violates the P and I Cl of Art. IV, UNLESS it is NECESSARY to achieve an important gov’t purpose
IF NOT THE ABOVE THEN
SECOND: If the discriminatory law burdens interstate commerce, it violates the Dormant Commerce Cl UNLESSit is:
(i) NECESSARY to achieve an important gov’t purpose – Purpose must be permissible; AND
(ii) the gov’t has shown that there is NO LESS discriminatory alternative
→ example: State of Maine allowed to ban a certain fish from being brought in from out of state b/c they said that it contained a parasite that could hurt the existing habitat
THIRD: Even if the discriminatory law unduly burdens interstate commerce it may be allowed under one of TWO EXCEPTIONS where law would be upheld NWS:
- Congressional Approval: If Congress approves the law then it’s OK
- Market Participation Exception: The state/local gov’t CAN prefer its own citizens in receiving benefits from gov’t programs OR dealing w/ gov’t owned businesses
→ example: preferential college tuition to instate residents at state colleges (sponsored by state gov’t)
→ Basic Rule: Gov’t owned and operated institutions may prefer in-state-businesses
STATE TAXATION OF INTERSTATE COMMERCE
When can a state tax interstate commerce?
RULE:
- States may NOT use their tax systems to help in-state businesses
→ example: Cannot have a tax credit based on making a purchase from an in-state business - A state may ONLY tax activities IF there is a substantial nexus b/t the product or activity to be taxed AND the state
→ example: CA cannot tax a business that only operates in NY - State taxation of interstate business MUST be fairly apportioned
→ example: tax could be based on un-state revenue of based on miles driven in the state
FULL FAITH AND CREDIT
What is the requirement of Full Faith and Credit?
Full Faith and Credit = Courts in one state MUST give “full faith and credit”to judgments of courts in another state —that is they MUST ENFORCE all jdmts of cts in another state), SO LONG AS…
1) the ct that rendered or issued the jdmt had pjx AND smjx;
2) the jdmt was on the merits; AND
3) the jdmt was final
Summary of When Principles and Immunities Clause of Article IV will Apply
For the Principles and Immunities Clause of Article IV will Apply:
(i) The law must discriminate against out-of-staters.
(ii) The discrimination must be with regard to fundamental
rights or important economic activities.
(iii) Corporations and aliens cannot use the privileges and
immunities clause.
(iv) The discrimination must be necessary to achieve an
important government purpose
