Fed Power over State and Private Conduct

Question 1

What is Federal Preemption?

Answer 1

Federal Preemption occurs when a federal law takes precedence over state or local law due to the Supremacy Clause of the U.S. Constitution.

Question 2

Recite the Supremacy Clause.

Answer 2

Article 6, paragraph 2 of the U.S. Constitution states that the Constitution and all federal laws are supreme over any conflicting state or local laws.

Question 3

What is Express Preemption?

Answer 3

Express Preemption occurs when Congress explicitly makes federal law exclusive in a specific area, precluding any state regulation.

Question 4

What is Implied Preemption?

Answer 4

Implied Preemption occurs when federal law is intended to preempt state or local law, despite not being explicitly stated.

Question 5

What are the three types of Implied Preemption?

Answer 5

• Field Preemption
• Conflict Preemption
• State Laws that Impede a Federal Objective
• Preemption of State Taxtion/Reg of the Fed Govt

Question 6

Define Field Preemption.

Answer 6

Field Preemption occurs when Congress intends to occupy an entire field, precluding any state regulation in that area.

Question 7

What is Conflict Preemption?

Answer 7

Conflict Preemption occurs when state law makes it impossible to comply with both federal and state law.

Question 8

In the Floor & Ceiling Model for Conflict Preemption, what does the federal law set?

Answer 8

The federal law sets a floor (minimum standard) below which state law cannot go.

States cannot go below the floor or min standards that the fed govt sets ,but States can impose additional regulation

Question 9

What is the rule regarding State Laws that Impede a Federal Objective?

Answer 9

State law is invalid if it impedes the achievement of a federal objective and interferes with a federal goal.

◊ Ex. fed law gives you room to operate a biz in the country despite operating biz abroad while a state leaves less room to operate biz in state bc you are operating abroad–>the state’s posed an obstacle to congressional aim

Question 10

What happens if a state attempts to tax or regulate the federal government?

Answer 10

A state that attempts to tax or regulate the federal government is preempted due to the Supremacy Clause.

◊ So long as the state law is neutral and applied to the fed govt in the same manner as to all others the Q is whether the application of state law would interfere with the operation of the fed govt.

Question 11

What is the Dormant Commerce Clause?

Answer 11

The Dormant Commerce Clause prohibits certain state economic regulations that unduly burden interstate commerce.

Corporations and aliens are allowed to sue under the DCC for laws that burden interstate commerce

Question 12

What is the presumption regarding discriminatory state laws?

Answer 12

• There is a strong presumption against state laws that discriminate against out-of-staters
• AND will be upheld only if its necessary to achieve an important purpose.

Question 13

What is the presumption regarding nondiscriminatory state laws?

Answer 13

• If the law is nondiscriminatory then the presumption is in favor of upholding the law
• AND it will be invalidated only if it is shown that the law’s burden on interstate commerce outweigh its benefits.

See Balancing Test

Question 14

What is the Balancing Test for the Dormant Commerce Clause?

Answer 14

The Balancing Test assesses whether the benefits of the state law outweigh its burdens on interstate commerce.

Question 15

Define the Privileges and Immunities Clause.

Answer 15

Article 4 Section 2 states that The Privileges and Immunities Clause ensures that citizens of each state are entitled to the privileges and immunities of citizens in other states.

Question 16

What is the general rule regading the Privileges and Immunities Clause on the States?

Answer 16

• Serves as limiting the ability of state to discriminate against out of staters with regard to constitutional rights or important economic activities

Specifically focuses on whether the state law prevents out of staters their ability to earn a livelihood.

• trade or profession
• charges a discrimnatory fee
• mandates a preference to in-staters for employment

Question 17

What is the State’s burden of proof for discimination under the Privileges & Immunities Clause?

Answer 17

• Discrimination will only be allowed if it is substantially related to achieving a substantial State interest

only the citizens or out of staters (citizens) can sue under the P&I Clause

Question 18

What is the Incorporation Doctrine against the States?

Answer 18

The Incorporation Doctrine shows how the Bill of Rights applies to states through the Due Process Clause of the 14th Amendment.

Question 19

How is the Incorporation Doctrine applies to the Fed Govt?

Answer 19

The Equal Protection Clause in the 14th Amendment applies to the Fed Govt through the Due Process Clause of the 5th Amendment.

Question 20

What rights from the Bill of Rights are not incorporated?

Answer 20

• 3rd Amendment right to not have soldiers quartered in a home
• 5th Amendment right to grand jury indictment in criminal cases
• 7th Amendment right to jury trial in civil cases

Question 21

What is the State Action Doctrine?

Answer 21

• Any provision of the BofR is applicable to the States through the operation of teh 14th Amendment’s DP Clause, thus does not apply to private conduct.

The source is from the 14th Amendment in which no state may deprive any person of life, liberty, without due process of law.

Question 22

What is the Public Function Exception?

Answer 22

If a private entity performs a task that is traditionally, exlusively done by the govt, then the Con appies to that private conduct.

Question 23

the Public Function Exception applies to Private property as a “Town”…

Answer 23

where any company-owned town is equivalent of a municipality, thus the company must comply with the Con.

Question 24

What is the rule on content of speeches made at shopping centers under the Public Function Exception?

Answer 24

Shopping centers can prohibit content of speech that’s being made there thus 1st Amendment does not apply.

Question 25

What is the rule regardings parks under the Public Function Exception ?

Answer 25

A city cannot hand over control to a private entity in which parks are traditionally held to be a public function.

Question 26

What is the rule regarding state elections under the PF Exception?

Answer 26

court held that an election for govt office is a public function that must meet the con requirement for equal protection.

Question 27

What is the rule regardings Running & Regulating Schools under the PF Exception?

Answer 27

although education has long been a province of govt, SCOTUS does not apply the PF Exception in this area.

Question 28

What is the Entanglement Exception?

Answer 28

Private conduct must comply with the Constitution if the govt authorizes, facilitates, or encourages the unconstitutional conduct. ## Footnote applies when the govt is so involved with the activity that it cannot be seperated.

Question 29

Entanglement Exception applies to what 4 areas?

Answer 29

* 1. Government enforcement of actions; * 2. government licensing and regulation; * 3. government subsidies; and * 4. voter initiatives permitting discrimination

Question 30

What was the holding in Shelley v. Kraemer under the Entanglement Exception?

Answer 30

The court held that courts could not enforce racially restrictive covenants in private neighborhoods because court enforcement is considered state action.

Question 31

What does the Equal Protection Clause of the 14th Amendment apply to?

Answer 31

The Equal Protection Clause applies to the federal government through the Due Process Clause of the 5th Amendment.

Question 32

What is the significance of Lugar v. Edmonson?

Answer 32

It held that state action exists when private parties make extensive use of state procedures with the assistance of state officials.