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Flashcards in Federalism Deck (26)
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Police powers are reserved to the _______

States. Grants broad authority to enact legislation for the general welfare. 


What is the Supremacy Clause?

Holds that if a federal law directly or indirectly conflicts with a state law, federal law will prevail (and state law declared void). Federal laws can either expressly or impliedly preempt state law. 

Article VI, paragraph 2


When does federal law expressly preempt state law?

When either:

  • Law is an exclusive power of the federal government (e.g. power to conduct foreign affairs); or
  • Regulation in that area has been expressly prohibited by federal government

⚠️ Note: express preemption laws are narrowly construed 


When does federal law impliedly preempt state law?

Courts will infer federal intention to preempt if: 

  1. State law hinders purpose of the federal law; 
  2. State law makes compliance with federal law impossible (i.e. impossible to comply with both at the same time); or
  3. Congress intended for federal government to occupy the entire field ("field preemption")



Can states create laws that are more rigorous than those set by the federal government?

Yes, in the absence of preemption, states can create more stringent laws than the federal government 


What is the Dormant Commerce Clause?

Since Congress has exclusive power to regulate interstate commerce, states are prohibited from discriminating against or unduly burdening interstate commerce even if Congress has not regulated the activity.

More Info: Dormant Commerce Clause


When does a state regulation violate the Dormant Commerce Clause?

If regulation: 

  1. Discriminates against out-of-state commerce; 
  2. Unduly burdens interstate commerce; or 
  3. Regulates wholly out-of-state activity 



When does a regulation discriminate against out-of-state competition

When it promotes the economic interests of its own residents at the expense of out-of-staters (e.g. imposing requirements on out-of-state companies but not in-state companies)


Under the Dormant Commerce clause, when are regulations that facially discriminate against out-of-state actors valid?


  1. Regulation is necessary to achieve important government interest and no reasonable, non-discriminatory alternatives are available (strict scrutiny);
  2. State is a market participant (i.e. acts like a business or consumer); or 
  3. Regulation involves traditional government function (e.g. trash collection), or 
  4. Congress has expressly authorized regulation (e.g. Congress explicitly states that regulation violates Dormant Commerce, but will allow it anyways) 



If a regulation is non-discriminatory, it may nonetheless be struck down if:

it unduly burdens interstate commerce


In general, can states tax interstate commerce?

Yes, as long as tax does not discriminate or unduly burden interstate commerce.


If you see a question about a possible discriminatory interstate tax, what different provisions of the Constitution could it violate?

  1. Commerce Clause;
  2. Privileges and Immunities Clause of Article IV (Comity Clause);
  3. Equal Protection; and
  4. Due Process of the Fourteenth Amendment


What is the 4-part test to decide whether a state tax on interstate commerce is valid? 

Tax must satisfy the Complete Auto test: 

  1. Tax must have substantial nexus to taxing state (i.e. activity being taxed must have significant relationship with the state); 
  2. Tax must be fairly apportioned;
  3. Tax cannot discriminate against interstate commerce; and
  4. Tax must be fairly related to the services provided by the state



What are the requirements for a state tax on foreign commerce to be valid?

Tax must:

  1. Satisfy the Complete Auto Test
    AND refrain from either: 
  2. Creating a substantial risk of international multiple taxation; or 
  3. Preventing the federal government from "speaking with one voice" regarding international trade or foreign affairs issues



Can states tax the federal government

No, unless taxes are incidental (e.g. taxes on federal employees) and do not burden the federal government 


Can the federal government tax the states



What are ad valorem taxes?

Taxes based on assessed value of the item. Cannot be imposed on goods in interstate transit; only when goods reach their final destination.


Can states tax "instrumentalities of commerce"? (e.g. trucks, trains, etc)

Yes, as long as:

  1. Instrumentality has sufficient contacts with taxing state; and 
  2. Tax is reasonably proportional to the time instrumentality has spent in the state 


What is the Privileges and Immunities Clause under Article IV? 

(also called the "Comity Clause")

Mandates that states cannot discriminate against the fundamental rights or esssential activities of out-of-state residents 

⚠️ Note: Privileges and Immunities does not apply to corporations. If you see discrimination against an out-of-state corporation, think Dormant Commerce Clause


What is considered a fundamental right or essential activity in regards to Privileges and Immunities?


  • Commercial rights (pursuit of employment, right to engage in business); 
  • Right to live
  • Right to travel;
  • Right to participate in judicial and political process 

⚠️ Note: This is not an exhaustive list



When is discrimination against out-of-state residents valid under Privileges and Immunities? 


  1. There is a substantial justification for the discrimination (e.g. protectionism or residents are the "peculiar source of evil" law was intended to fix:); and
  2. No less-discriminatory alternatives are available 


Distinguish Privileges and Immunities under Article IV vs. the 14th Amendment

Article IV: Prevents states from discriminating against non-residents

14th Amendment: prevents states from denying citizens the right to interstate travel (narrowly construed) 



Does Privileges and Immunities protect recreational rights?

No, only fundamental rights 

Ex. a restriction on hunting licenses for non-residents is valid 


Does Privileges and Immunities prohibit the state from discriminating against its own citizens?

No, only out-of-state citizens


If a state is discriminating against an out-of-state corporation, does the Dormant Commerce Clause or Privileges and Immunities apply?  

Dormant Commerce Clause.

Privileges and Immunities applies to persons, not corporations 


What is the Full Faith and Credit Clause (Article IV, Section 1)?

Requires that states respect the judgments of other states as long as they were valid final judgments on the merits