Federalism Flashcards
(3 cards)
Preemption
The Supremacy Clause of Article VI provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.
Express preemption = Federal Wins
Implied preemption
* If federal and state laws are mutually exclusive, federal law preempts state law
* If state law impedes the achievement of a federal objective, federal law preempts state law
* If Congress evidences a clear intent to preempt state law, federal law preempts state law
States may not tax or regulate federal government activity (Intergovernmental immunity)
* Unconstitutional to pay a state tax from the federal treasury
The Dormant Commerce Clause & The Privileges and Immunities Clause of Article IV
Definitions
* The dormant commerce clause (Negative implications of the commerce clause): State or local law is unconstitutional if it places an undue burden on interstate commerce
* The privileges and immunities clause of Article IV: Limits states’ ability to discriminate with regard to privilege amd immunities of citizenship
* The privileges or immunities clause of the Fourteenth Amendment: Limited to right of travel (always wrong answer unless state is limiting the right to travel)
Does the state law discriminate against out-of-staters?
* No = P&I doesn’t apply
* No = Violates DCC if it burdens interstwte commerce & burdens exceed benefits
Analysis if the law does not discriminate
* The privileges and immunities clause of Article IV does not apply
* If the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits
Analysis if the law discriminates against out-of-staters
* If the law burdens interstate commerce, it violates the dormant commerce clause* unless it is necessary to achieve an important government purpose*
* Exception: Congressional approval
* Exception: The market participant exception. A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses.
* If the law discriminates against out-of-staters with regard to their ability to earn their livelihood, it violates the privileges and immunities clause of Article IV unless it is necessary to achieve an important government purpose
* i) The law must discriminate against out-of-staters.
* ii) The discrimination must be with regard to fundamental rights or important economic activities.
* iii) Corporations and aliens cannot use the privileges and immunities clause.
* iv) The discrimination must be necessary to achieve an important government purpose.
State Taxation of Interstate Commerce
- Can’t help in-state businesses
- Need substantial nexus (physical presence not required) A state may require that out-of-state businesses collect sales taxes, even if they do not have a physical presence with the state, so long as they have a substantial nexus to the state.
- State taxation of Interstate Businesses = Fairly Apportioned
