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Flashcards in 4) Federalism Deck (28)
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1

fed gvt's power (gen):

limited -- only what const gives

2

state gvt's power (gen):

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

3

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

4

preemption: def

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

inc. C can say "no state can regulate"

5

fed gvt: sovereign immunity

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

6

taxation of fed gvt by state

can't interfere w performing fed functions

7

state gvts; sovereign immunity

generally can't sue them under 11A

but ok for feds to sue them!

8

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)

9

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

10

anti-comandeering doctrine: const source

10th am

11

anti-comandeering doctrine: state consent

still unconst

12

anti-comandeering doctrine: how to achieve state result

spending clause

13

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

14

dormant commerce clause: def

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

15

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

16

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

17

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

18

dormant commerce clause: exceptions

1) Congress approves
2) market participation doctrine

19

dormant commerce clause: exceptions: Congress approves: def

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

20

dormant commerce clause: exceptions: market participation doctrine

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

21

dormant commerce clause: state taxes

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

22

state action requirement: def

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

result: must show state action

23

state action req: exceptions

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

24

state action req: exceptions: 13Am

prohibits action by private indivs too

25

state action req: exceptions: public function: def

private entity is carrying out TRADITIONAL GVT ACTIVITY

26

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

27

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)

28

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