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Flashcards in 4. Federalism Deck (17)
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What does federalism concern?

Limits on state and local government because of the existance of the federal government and other states


What is express pre-emption?

Where a federal statute says that federal law is exclusive in a field


What is implied pre-emption?

Where a federal and state law clash, the federal law wins


Regarding pre-emption, what can states do, unless Congress prohibits it?

Set environmental and safety standards which are stricter than federal law


What happens if state law impedes the achievement of a federal objective?

It is deemed pre-empted


What can congress do to impliedly pre-empt state law?

Evidence is clear intent to pre-empt state law, e.g. immigration


Can states tax activity of the federal government? How come?

No, because it is unconstitutional to pay state tax out of the federal treasury


What does the dormant commerce clause provide?

State or local law is unconstitutional if it places an undue burden on interstate commerce


What does the privileges and immunities clause of Article IV provide?


No state can discriminate against out-of-staters regarding fundamental rights or important economic activities


What does the privileges or immunities clause of Fourteenth Amendment concern?

The right to travel


When does the P&I clause apply?

When a state is discriminating against out-of-staters, i.e. not residents


If a state law does not discriminate against out of staters, but burdens interstate commerce, what is the consequence?

It will violate the dormant commerce clause if its burden exceeds its benefit


Where a law burdens interstate commerce, what must be shown for it not to violate the dormant commerce clause?

That the law is necessary to achieve an important government purpose


Where a law burdens interstate commerce, in addition to it being necessary to an important government purpose, what must also be shown?

That there is no less discriminatory way of achieving the same purpose


What are two instances where a law which discriminates against out-of-staters is okay?

1. State/local law approved by Congress

2. Government is acting as a market participant, i.e. buying/selling (not acting as a regulator)


Can corporations or aliens use the P&I clause?



What is the most likely way P&I will be tested on the bar? And what should we not be tricked by?

Out-of-stater's ability to earn a livelihood

Hobbies disguised as income-earners