federalism Flashcards
(25 cards)
what is the supramacy clause?
the Constitution and the laws and treaties made pursaunt to it are laws of the land
- Federal law overrides or preempts inconsistent state laws
3 different types of preemption
1) express preemption
2) implied preemption
3) states cannot charge tax to be paid out of federal treasury (aka states cannot tax feds)
express preemption
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
implied preemption (2 types)
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
another name for dormant commerce clause
negative implications of the commerce clause
what is the negative implications of commerce clause
principal that state or local laws are unconstitutional if THEY PLACE EXCESSIVE BURDEN ON INTERSTATE COMMERCE
what does privileges and Immunites clause (4th amendment) mean
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
P&I for 14th amendment
used to preserve a persons right to travel from 1 state to another
- 14th amendment for P&I is wrong unless right to travel
When the P&I applies.
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.
what type of discrimination must be for PI of 4th amendment to apply?
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.
who does PI only apply to
citizens. Does not apply to corporations or aliens
If the law does not discriminate against out of state what do you use?
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
if a law does discriminate when will it not violate the dormant commerce clause
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
X/C when laws would violate dormant commerce clause but ok (2) `
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
overview of Dormant commerce Clause
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
overview of P&I
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
when may states NOT use their tax systems
to help in state business at expense of out of state businesses
when may a state only tax activities if there is what
a substantial nexus b/w the product or activity to be taxed and the state
States tax rights
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
Does a federal regulation of advertisement of health or safety have anything to do with states interest in fraudulent advertisement regulation
NO so not preempted
Durational residency requirements
where state requires new state citizens to live in state for period of time before they can get any benefits VIOLATES EPC
- need SS
durational residency requirements dealing with right to travel
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. `
-
what does 10 amendment do
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
when does 10 amendment not apply
does not bar enforcement of a regulation that applies to the states as well as to private sector.
