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FL & Fed Const Law Bar Exam 2020 > The federal System > Flashcards

The federal System Flashcards

1
Q

Express Preemption

A

Occurs when fed. law expressly states that its the only reg. allowed & st. reg. is prohibited

  • Fed. St. will exp. state that fed. law is exclusive in the area
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2
Q

Express Preemption - Environmental Standards

A

Environmental Standards - States may set enviro. stds stricter than fed. law unless clearly prohibited by congress

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3
Q

Implied Preemption

A

Can occur in 1 of 3 ways:

  1. Fed. law is in Direct Conflict w/ state law - State law will be invalidated
  2. State Law Substantially Impedes Fed. Objective - State law will be invalidated
  3. Field Preemption - If congress clearly conveys that it intends the fed. law to be the only regulation in the area, then any state law in the area is preempted
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4
Q

State Reg. of Interstate Commerce

A

Any st. law that has subst. effect on interstate commerce must not be protectionist or otherwise impose an undue burden on interstate commerce

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5
Q

Dormant Commerce Clause - Purpose

A

States can’t discriminate against out of state econ. actors

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6
Q

Dormant Commerce Clause

A

aka Negative Implications of the Commerce Clause

  • If congress hasn’t acted, a st. or local gov’t can reg. local aspects of interstate commerce unless:
    • st./local laws discrim. against out of staters or
    • place an undue burden on interstate commerce

Rule inferred from grant of power to cong. in com. clause to reg. interst. com.

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7
Q

Dormant Commerce Clause - Law Doesn’t Discrim.

A

Protectionist Laws - benefits in-st interest at the expense of out of state interests (Unconst.)

  • A st. law that discriminates against interstate commerce is protectionist (unconst.) unless it serves legit. local int. that can’t be served by nondiscrim. legis.
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8
Q

Dormant Commerce Clause - Law Doesn’t Discriminate

Exceptions

A

Exceptions:

  1. Nec. to Important Non-economic State Interest
  2. Congressional Approval
  3. Market Participant
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9
Q

Law Doesn’t Discriminate - Exception

Nec. to Important Non-Economic State Interest

A

If a state or local reg., on its face or in practice, is discrim. then the reg. may be upheld if the state or local gov’t can est. that:

  1. An important local interest is being served AND
  2. No other nondiscrim. means are avail. to achieve that purp.
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10
Q

Law Doesn’t Discriminate - Exception

Congressional Approval

A

Cong. can exercise its auth. under com. clause to permit a st. regulation that would otherwise violate the negative implications of the commerce clause

  • as long as the congressional leg. unmistakably grants such permission
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11
Q

Law Doesn’t Discriminate - Exception

Market Participant

A

A st. or local gov’t may prefer its own citizens when acting as a market participant

  • it can decide who it wishes to contract without regard to the restrictions of the Dormant commerce clause
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12
Q

Dormant Commerce Clause - Law Doesn’t Discriminate but there is an undue Burden

A

Even if state/local law isn’t discrim. the law will still violates dorm. com. clause if the state/local law places an undue burden on interstate commerce

  • Balancing Test
    • If the burden outweighs the benefits, the law will be struck down as unconstitutional
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13
Q

State Taxation of Interstate Commerce

A

Sup. Ct. has set out a 4 part test for state or local taxes on interstate commerce to be valid under the commerce clause

  • Doesn’t Discriminate - A st. or local gov’t is prohibited from using its tax system to discrim. against out of state competition in an effort to benefit local businesses
  • Substantial Nexus - by applied to an activity that has subst. nexus w/ the taxing st.
    • Requires significant or subst. activity within the taxing state
  • Fairly Apportioned to activities actually taking place in the taxing state AND
  • Fair Relationship to services provided by the taxing state
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14
Q

Exclusive Federal Powers

A
  1. Coin money
  2. enter into treaties
  3. Declare war
  4. Power over citizenship
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15
Q

Exclusive State powers

A

10th Amendment - All powers not assigned by the const. to the federal gov’t are reserved to the states

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16
Q

Concurrent Federal & State Laws and the Supremecy Clause

A

Fed. & St. governments can legislate the same area

  • Supremecy clause provides that federal law supersedes conflicting state law
17
Q

Federal Immunity from State Regulation

A

Fed. gov’t is immune from st. reg. interference

  • Taxation - States can’t tax fed. gov’t activity
    • unconst. to pay a st. tax out of fed. treasury
  • Regulation - States can’t reg. fed. activities
    • Immunity applies to US gov’t & fed. employees acting in the course of their fed. duties
18
Q

When can a federal gov’t sue a state?

A

At any time

  • Fed. gov’t has unlimited power over the states
19
Q

State Immunity - Define the Anti-Commandeering Doctrine

A

Congress can not make a state:

  1. Pass Laws OR
  2. Enforce Federal Law through regulatory program
20
Q

State Immunity - Anti-Commandeering Doctrine

If a state vol. passes a federal law or enforces a federal law, is it unconstitutional under the Anti-Commandeering Doctrine ?

A

YES

21
Q

What powers does the state have?

A

Police Power

22
Q

What is federal Sovereign Immunity ?

A

The federal gov’t can’t be sued without its consent

23
Q

State Action

A

Const. only applies to gov’t action (Actions of the gov’t & gov’t officials)

  • Generally not applicable to private conduct
24
Q

When can Congress apply the constiution to Private Action ?

A

via statute in certain situations

  • 13th Amendment - prohibit race discrim. under § 2 of the 13th Amend.
  • Commerce Clause - Congress can apply the const. norm of equality to priv. conduct under commerce clause (private racial discrim. that has subst. effect on interstate commerce)
  • § 5 of the 14th Amendment - Congress can’t reg. priv. conduct under § 5 of the 14th amend.
    • only applies to the states
25
Q

Exceptions to the Requirement of State Action

A
  1. Public Function Exception
  2. Entangled Exception
26
Q

Public Function Exception

A

Applies the const. to priv. entities acting in a way that you would expect the gov’t to do

  • Private entity is perf. task that has been trad. & exclusively perf. by gov’t
    • elections, parks, company towns
27
Q

Entagled Exception

A

Entity must comply w/ const. if the gov’t has:

  • commanded, auth.,
  • encouraged, or
  • facilitated the unconst. conduct.

Either gov’t must stop comm., auth.,encouraging, or facilitating the unconst. conduct or the priv. entity must cease the unconst. conduct

28
Q

Supreme Court has Found the Following to be state action

A
  • Courts enforcing racially restrictive covenants
  • Gov’t leasing space to priv. entity that racially discriminates
  • Gov’t providing free text books to schools that racially discriminates
  • Priv. entity reg. interscholastic sports within a state
29
Q

SCOTUS has found the following NOT to be state action

A
  • Gov’t subsidy insufficient for state action - priv. entity doesn’t have to follow const. just because it receives gov’t funding
  • NCAA orders suspension of Basketball Coach at a State Univ.
  • Private Club with Liquor License from state racially discriminates
  • Accreditation, Regulation & Partial Funding of University
    • Sup. Ct. precedent est. that accred., reg., and partial funding of univ. by the st. doesn’t render the univ. conduct st. A
30
Q

Application of the Bill of Rights

A

Only applies directly to the federal gov’t

  • Incorporated into Due Process Clause of 14th Amendment - BORs applicable to state & local gov’t through incorporation of DP clause of 14th Amendment
31
Q

Application of the Bill of Rights - Exceptions

A

The following BORs have not been incorp. by supreme court

  1. Right to Grand Jury Indictment in Crim. Cases (5th Amendment)
  2. Right to Jury trial in Civil Cases (7th Amendment)
  3. Right against Excessive Bail & Excessive FInes (8th Amendment)
32
Q

A state enjoys immunity from federal taxation if the tax is applied to what ?

A
  1. Unique activities of the state gov’t (e.g. state legislation)
  2. Essential gov’t functions
33
Q

When can federal government tax a state?

A

When there is a private-business counterpart to the activity the state is conducting

34
Q

If a federal law says that “no state shall do X” is it const.?

A

Yes, there is no prohibition on prohibitions

FL & Fed Const Law Bar Exam 2020 (18 decks)

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