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Flashcards in 4) Federalism Deck (28)
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fed gvt's power (gen):

limited -- only what const gives


state gvt's power (gen):

police power -- ie, can pass laws w/o IDing power source


ways const limits states powers

1) exclusive federal power (things const gives to fed gvt)
2) individual rights (state laws that violate indiv rights are invalid)
3) preemption


preemption: def

supremacy clause -- if C has power to regulate in some area, preempts state law.

inc. C can say "no state can regulate"


fed gvt: sovereign immunity

fed gvt can't be sued w/o consent (so states can't create liability right against feds)


taxation of fed gvt by state

can't interfere w performing fed functions


state gvts; sovereign immunity

generally can't sue them under 11A

but ok for feds to sue them!


taxation of state gvt by feds

immune if state is doing either:
1) unique state activities (things only states do), OR
2) essential gvt functions (things state must do to operate a gvt)

(ok tax if doing private-ish things like hospitals)


anti-comandeering doctrine: def

fed gvt can't make states act as sovereigns.

Feds can't:
1) require state legislature to pass certain laws
2) require state officials to enforce federal law


anti-comandeering doctrine: const source

10th am


anti-comandeering doctrine: state consent

still unconst


anti-comandeering doctrine: how to achieve state result

spending clause


anti-comandeering doctrine: EXCEPTION

NOT comandeering to forbit the states from doign something! Even if prohibition extends to state sovereign funcntions!

ex. ok prohibit race discrim in employment


dormant commerce clause: def

states can't discrim against out of state economic activity (ex. trying to give advantage to locals)


dormant commerce clause: approach

1) if an exception applies, do that
2) otherwise choose btwn 1 of 2 tests:
a) facial discrim
b) incidentally burdens


dormant commerce clause: facial discrim test

if state law discriminates on its face gainst OOS goods/actors, state must show:
1) compelling interest AND
2) necessity (only way achieve interest)

(strict scrutiny)

Maine fish parasite thing passed


dormant commerce clause: incidental burden on ISC test

if just incidental burden, state must show:
1) important state interest AND
2) no excessive burden on ISC (balance against local interests)

can't limit length of trucks but a smoke ordinance was ok


dormant commerce clause: exceptions

1) Congress approves
2) market participation doctrine


dormant commerce clause: exceptions: Congress approves: def

Congress can affirmatively authorize states to pass laws that woudl normalyl violate DCC and that's ok


dormant commerce clause: exceptions: market participation doctrine

when state participates in the market, it can discrim against other states


dormant commerce clause: state taxes

state taxes can't be discriminatory against OOS businesses nor excessive


state action requirement: def

const protects against GVTS (state or fed), not private indivs

result: must show state action


state action req: exceptions

1) public function
2) significant state invt
3) 13th am


state action req: exceptions: 13Am

prohibits action by private indivs too


state action req: exceptions: public function: def

private entity is carrying out TRADITIONAL GVT ACTIVITY


state action req: exceptions: public function: SC cases

"company town" can't have regulations that violate 14 Am

but does not apply to privately owned shopping center


state action req: exceptions: significant state invt: def

close state encouragement + support of private enterprise (usu: state wanted it done, controlling how it's done -- state hand in private glove)


state action req: exceptions: significant state invt: SC cases

private restaurant in gvt building w close rship, school athletic competitions both = yes

but, NOT just granting a liquor license or corporate charter