Kaplan Pgs 107-113 Nation And The States

Question 1

If a city fire department required that in order to be promoted firefighters had to pass a written exam, and for many years no black firefighters passed the exam. Then the city passed an ordinance instituting a racial quota system that required that two of every five firefighters that got promoted had to be black. If this is challenged for its constitutionality, what will happen?

Answer 1

This is affirmative action based on race, so it must pass strict scrutiny. The burden of persuasion is on the government to show that this is necessary to further a compelling interest and there are no less restrictive alternate means available

Question 2

Each state has a general police power, but does the federal government have a police power?

Answer 2

No

Question 3

How must the federal government legislate and how must the state government regulate?

Answer 3

– Federal: through one of its enumerated powers

– state: can regulate any health, safety, welfare, moral, or aesthetic interest through its police powers

Question 4

Can the federal government and its agencies be required to pay state taxes and abide by state regulations?

Answer 4

No. The federal government and its agencies are immune from state taxation and state regulation.

Although the states can collect a non-discriminatory tax on people who deal or contract with the federal government

Question 5

Federal lands such as military bases, Indian reservations, and FBI offices are subject to what authority?

Answer 5

The authority of the federal government except when Congress has ceded jurisdiction to the state

Question 6

In what to areas does a state have immunity from federal taxation?

Answer 6

– for unique stayed activities

- for essential government functions

Question 7

What is a good exam tip for the 10th amendment?

Answer 7

This is usually a red herring wrong answer choice unless the facts show that the federal government was commanding the states

Question 8

What is the anti-commandeering doctrine?

Answer 8

The 10th prohibits the federal government from using enumerated power to force a state legislature to pass a law or a state official to administer a federal program

Question 9

In essence, what is the dormant commerce clause?

Answer 9

Although Congress has the power to regulate interstate commerce, when Congress has not enacted legislation, the states are free to regulate local transactions that affect interstate commerce subject to certain limitations

Question 10

What are the two major rules under the dormant commerce clause?

Answer 10

– if a state law to discriminates ON ITS FACE between in-state and out-of-state, the state has to show that: the regulation serves a compelling state interest and is narrowly tailored
– if the state law INCIDENTALLY burdens interstate commerce: apply a balancing test where the law is upheld unless the burden imposed on interstate commerce clearly outweighs the local benefits

Question 11

What are the two major exceptions to the dormant commerce clause?

Answer 11

– Congress can affirmatively authorize states to legislate in areas that would usually violate the DCC
– states acting as market participants

Question 12

What is one way that states can enact ordinances that affect interstate commerce and those things will be upheld?

Answer 12

If they are legislating under their police power for the protection of the health, safety, and welfare of their citizens.

Ie: creating a smoke abatement ordinance in Michigan that affected ships travelling in interstate commerce was upheld as a valid health measure

Question 13

Who all does the DCC apply to?

Answer 13

Aliens, businesses and corporations, individuals

Question 14

When is a regulation likely to be held unconstitutional under the DCC?

Answer 14

If it furthers no ostensible benefit and it imposes a substantial burden on interstate commerce.

Ie: A state law that limits the length of trucks that can travel on state highways was held to be unconstitutional because the regulation unduly burdened interstate commerce and the state couldn’t show any significant safety benefit

Question 15

Is state taxation of interstate commerce permissible?

Answer 15

Yes, as long as the tax does not discriminate against or unduly burden interstate commerce.

In order to determine if it is valid there must be a substantial nexus between the activity that is taxed and the taxing state. This means the taxpayer must have sufficient contacts or presence within the taxing state, which must be more than minimum contacts.

Additionally, the tax must be fairly apportioned, cannot discriminate against interstate commerce, and must be fairly related to the services provided by the taxing state

Question 16

What is an ad valorem tax?

Answer 16

This is a state tax that is levied on goods that happen to be in the taxing state on the tax day when those goods are still in transit. This is not usually allowed unless: there is a taxable situs in the state and the tax is fairly apportioned to the amount of time that the equipment is in the state

Question 17

What is a sales tax and what is required for it to be valid?

Answer 17

This is a tax upon the transfer of title of goods consummated within the state.

If the sale is consummated within the state, the tax is valid (even if the buyer then takes the goods outside of the state) but if the sale is made to someone outside of the state, the sales tax is invalid (like if the seller delivered the goods to an out-of-state buyer)

Question 18

What is a use tax?

Answer 18

A tax on the use of goods within a state even though they were purchased outside of the state.

Whether this is OK depends on whether the interstate seller that gets the goods from outside of the state has a sufficient nexus within the taxing state. If he maintains offices in the taxing state or sends sale people into the state, that is a sufficient nexus. If there are no sales offices in the state and all selling is done by mail, that is not a sufficient enough nexus to justify the collection of a use tax

Question 19

What are “doing business” taxes?

Answer 19

These are measured by either a flat annual fee or a graduated rate in proportion to the amount of revenue derived from the taxing state. These taxes must relate to the benefits that are conferred by the taxing state on the interstate business.

Ie: a fee applied to airport users is constitutional because it bears a reasonable relationship to the use of the facilities

Question 20

What is a flat license fee and is it constitutional?

Answer 20

This is a fee levied by the state on drummers or solicitors that solicit local orders, fill them out of state, and ship them through interstate commerce. These are generally unconstitutional

Question 21

What is a license tax?

Answer 21

These are put on peddlers or itinerant sales people that actually sell and deliver a product within the state. These are valid as long as the tax is fairly apportioned with an equal application to local sales people