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Flashcards in Federalism Deck (10):


—limits on state and local power bc of the existence of federal power. Challenges to something the fed govt wants to do OR a challenge to a state or local govt


Preemption- express and implied

The supremacy clause provides that constitution is supreme law of the land. IF there’s a conflict, federal law wins

i. Express preemption – if fed statute explicitly says that federal law is exclusive in a field.
1. For ex fed meat labeling act allows only FDA to label meat

ii. Implied preemption
3 ways: mutually exclusive, impedes acheivement offederal objective, or clear intent to preempt (occupy the field, or look to legislative history)
1. even if fed statute is silent, can find implied preemptioin.
2. If fed law and stte law are mutually exclusive, fed law preempts state law. compliacnce with both is impssible.
a. ex. fed agency required label ingredients for all maple syrup. wisconson prohibited listing ingedients for maple syrup
b. states can set environmental standards stricter than fed law unless explicitly prohibited by congress
3. If state law impedes the achievement oof a federal objective, federal law preempts state law.
a. for ex. florida prohibitd unemployment benefits if they filed greivances wiith NLRB. interferes with federal objective.
4. If congress evidences clear intent to preempt state law, then it does
a. for ex legislative history.
b. immigration law is an example oof wholly occupying the field.


State prohibiton on taxing or regulating fed activity. Intergovernmental immunity

1. mccullogh v. md—state cant tax fed bank. power to tax = power to destroy.
2. unconstitutional to pay state tax from federal treasury
a. ex. state can tax mom and pop sure on federal land. tax owed by private co
b. contra: US govt has store on military base. state cant tax that store. bc taxes would be owed by the fed govt
3. state/local govt cant regulate feds by putting burden on feds
a. feds never have to comply w state pollution laws.
b. can’t require fed employees who drive as part of their jobs to have valid driver’s license.


Absence of federal and state powers

some powers are denied to both congress and the states, for ex, qualifications for serving in congress are set by constitution and can’t be altered by congress or the states


Interstate compact clause

must get congressional approval if theres an agreement between states which increases the states’ power at the expense of federal power.

exs.: an inter-state agency like port authority that regulates commerce, or inter-state price setting acts that regulate commerce


Privileges and immunities clause and dormant commerce clause and relation to the commerce clause

p&I and dormant commerce tend to reinforce each other.


Dormant commerce clause

iii. dormant commerce clause (negative implications of the commerce clause) –Basically commerce clause is gives congress exclusive rights to regulate interstate commerce—flip side of this is that states cannot do anything that unduly burdens interstate commerce.
1. authority for congress
2. limit on state and local governments

3. Rule: state laws cannot discriminate against interstate commerce, unless meeting market participant exception or SS

4. Analysis
1) preemption, 2) discrimination? or market participant / exception/ meets strict scrutiny 3) burden on interstate commerce? balance with state interest 3) ratification by congress?

a. Step 1: preemption: does the state regulation impinge on federal legislation
i. No DCC analysis needed if there’s preemption

b. Step 2: discrimination: does the state or local law discriminate upon interstate commerce
i. Look for economic protectionism
1. No defense that the State discriminates against both in-state and out-of state entities, it just has to disfavor some out-of-stater
ii. If YES, law is invalid unless either
1. Market participant exception: market participation or government benefits
a. States may favor own citizens for benefits from government programs (in state tuition, or charging less to in-staters for cement made by state-owned company)
b. States may favor own citizens in dealing with/ government businesses
2. Strict scrutiny:
a. Furthers important non-economic state interest and no less discriminatory means are available (Ex. ecological protection)
b. for ex: cant import out of state fish into Maine. might hurt indigenous species. Maine has interest in protecting natural resources and could limit outside fish.

c. Step 3: burden: does the non-discriminatory state or local law place a burden on interstate commerce?
i. Balance burdens on commerce vs. benefits of the law.
1. for ex Illinois requires curved mud trucks, but all other states required straight. Unconstitutional—substantial burden on interstate commerce. no evidence that curved are safer. even though nondiscriminatory, still a violation

d. Step 4: ratification: if congress approves, the law cannot violate the DCC. Congress can also consent to state laying duties on imports or exports.


P&I of Art IV

i. Privileges and immunities prohibits discrimination by a state against nonresidents when the discrimination concerns a fundamental right, i.e. rights relating to important commercial activities or civil liberties. Clause applies only if discrimination is intentionally protectionist.

1. No discrimination against out of staters

2. Analysis:
1) citizen individual? 2) discrimination? 3) important right to livelihood or fundamental right? 4) strict scrutiny

a. Step 1: citizen individual. Corporations and aliens cannot invoke P&O clause
i. They can only use DCC challenge

b. Step 2: discrimination
i. Look for language treating in-staters and out-of-staters differently

c. Step 3: Does it discriminate with regard to important economic activities or fundamental rights
i. Right to livelihood.
1. Can’t stop bar admission, can make it harder to earn elk-hunting license because that’s a hobby.
ii. Right to live in state, hold and dispose of property, marry

d. Step 4: strict scrutiny: important interest + necessity
i. Furthers an important state interest and no less discriminatory means are available.


Privileges or immunities clause of the 14th amendment—

1. Prohibits discrimination by state against its OWN citizens (can’t discriminate against new in-state residence)
2. Ex. a durational requirement of 1 yr for new in-state doctors to work in the state would be analyzed under POIC of 14.
3. Discrimination against out-of-state doctors would be analyzed under P&I of 4th. Or prohibition on welfare benefits for new in-staters.
4. always a wrong answer unless the question involves a right to travel.


State taxation of interstate commerce as a violation of the commerce clause

c. State taxation of interstate commerce- May be a violation of the commerce clause→ remember, states cannot do anything that burdens interstate commerce, that is the exclusive domain of congress. A tax on interstate commerce is therefore unconstitutional.
i. State/ local taxes cannot discriminate against interstate commerce or unduly burden it. Burdensome if the locality need for revenue does not outweigh the burden on interstate commerce. SC will consider:
1. States may not use their tax systems to help in state businesses.
a. For example tax breaks for in-state purchases or products made in states. Like in-state ethanol credit.
2. state may only tax activities if there is a substantial nexus to that state
a. for ex. CA cant tax a business only in NY that has no offices in the state
3. State tax of interstate business must be fairly apportioned.
a. CA can calculate percent of revenue only the part of revenue in CA of the national trucking co.
4. Sales taxes do not discriminate against interstate commerce,
a. Still must have substantial nexus between the taxpayer and the state and must still be properly apportioned.

5. Basically, a tax is valid under the commerce clause if
a. The tax doesn’t discriminate against interstate commerce
b. There is a substantial nexus between the activity and the state
c. Tax is fairly apportioned
d. Tax fairly relates to services provided by the states.