federalism

Question 1

what is the supramacy clause?

Answer 1

the Constitution and the laws and treaties made pursaunt to it are laws of the land
- Federal law overrides or preempts inconsistent state laws

Question 2

3 different types of preemption

Answer 2

1) express preemption
2) implied preemption
3) states cannot charge tax to be paid out of federal treasury (aka states cannot tax feds)

Question 3

express preemption

Answer 3

when Congress has authority to act, it can state that its power is EXCLUSIVE in a field; if a federal statute stays that a federal law is exclusive in a field, then state and local laws are preempted

Question 4

implied preemption (2 types)

Answer 4

1) if it is not possibly for someone to SIMULTANEOUSLY COMPLY with both federal and state laws, state law is deemed preempted
2) if field traditionally left to states (health, safety etc) presumption that state police powers are NOT preempted unless CLEAR AND MANIFEST AND PURPOSE OF CONGRESS

Question 5

another name for dormant commerce clause

Answer 5

negative implications of the commerce clause

Question 6

what is the negative implications of commerce clause

Answer 6

principal that state or local laws are unconstitutional if THEY PLACE EXCESSIVE BURDEN ON INTERSTATE COMMERCE

Question 7

what does privileges and Immunites clause (4th amendment) mean

Answer 7

no state or municipality may deny citizens of other states the privileges and immunizes it affords its own citizens w/o substantial justification
- anti discrimination

Question 8

P&I for 14th amendment

Answer 8

used to preserve a persons right to travel from 1 state to another
- 14th amendment for P&I is wrong unless right to travel

Question 9

When the P&I applies.

Answer 9

When the law DISCRIMINATES against out-of-staters.
- if law discriminates against against out of state people with regard to their ability TO EARN A LIVING it violates the PI of 4th amendment UNLESS

1) it is necessary to achieve an important government purpose.

Question 10

what type of discrimination must be for PI of 4th amendment to apply?

Answer 10

1) ability to earn a living
2) discrimination must be with regard to FUNDAMENTAL RIGHTS OR IMPORTANT ECONOMIC ACTIVITIES
- ex: Commercial fishing, not just hobby to hunt.

Question 11

who does PI only apply to

Answer 11

citizens. Does not apply to corporations or aliens

Question 12

If the law does not discriminate against out of state what do you use?

Answer 12

dormant commerce clause.
1) if the law incidentally burdens interstate commerce, it violates the dormant commerce clause if its BURDEN on interstate commerce outweighs its BENEFIT

Question 13

if a law does discriminate when will it not violate the dormant commerce clause

Answer 13

1) if the law discriminates against interstate commerce, it violates the dormant commerce clause unless IT
2) is NECESSARY TO ACHIEVE AN IMPORTANT GOVERNMENT PURPOSE

Question 14

X/C when laws would violate dormant commerce clause but ok (2) `

Answer 14

1) Congress says it is ok
2) MARKET PLACE X/C: a state or local govt may prefer its on citizens in receiving benefits from government programs or in dealing with government owned business
Ex: state colleges give in state for citizens

Question 15

overview of Dormant commerce Clause

Answer 15

1) does NOT require discrimination on out of staters in order to apply
2) requires a burden on interstate commerce
3) corporartions and aliens CAN sue under it

x/c 1) congress approves (2) market place

Question 16

overview of P&I

Answer 16

1) REQUIRES discrimination against out of staters to apply
2) requires discrimination with regard to fundamental rights or important economic activities
3) corporations and aliens CANNOT sue under it

no X/C

Question 17

when may states NOT use their tax systems

Answer 17

to help in state business at expense of out of state businesses

Question 18

when may a state only tax activities if there is what

Answer 18

a substantial nexus b/w the product or activity to be taxed and the state

Question 19

States tax rights

Answer 19

States may impose doing business taxes, such as gross receipts tax on corporations in business, so long as tax DOES NOT UNDULY DISCRIMINATE OR UNDULY BURDEN INTERSTATE COMMERCE

• Tax will impose unfair burden UNLESS
  1) activity taxed has SUBSTANTIAL NEXUS to state
  2) tax is fairly apportioned AND
  3) fairly relates to services provided by state

Question 20

Does a federal regulation of advertisement of health or safety have anything to do with states interest in fraudulent advertisement regulation

Answer 20

NO so not preempted

Question 21

Durational residency requirements

Answer 21

where state requires new state citizens to live in state for period of time before they can get any benefits VIOLATES EPC
- need SS

Question 22

durational residency requirements dealing with right to travel

Answer 22

Most likely unconstitutional because burdens fundamental right to travel.
- Individual has a fundamental right to travel to state to state, state law that violates fundamental right is violated by EPC, subject to SS. `
-

Question 23

what does 10 amendment do

Answer 23

10th amendment reserves to the states the powers not granted to the federal government by the constitution.
- Limitation on federal government’s power to regulate the states

Question 24

when does 10 amendment not apply

Answer 24

does not bar enforcement of a regulation that applies to the states as well as to private sector.

Question 25

when does Congress have the power to abrogate sovereign immunity

Answer 25

under section 5 of 14th amendment NOT commerce clause