Glossary of Con Law Limitations On State Power

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Limitations On State Power: GEneral Principles
THere are limitaitons on state power that spring from 'federalism'; that is, the limitations that result from the relationship between the powers of the fed and state gov'ts there are three principal areas we cover 1: preemption 2: the dormant commerce cluase 3) the privileges & immunities clasue of Article IV
NOTE: other than federalism, state power is also limited by constitutaion protection for individauals (EG due process and equal proteciton rights) these are addresed in the deck under coeest IRT and 1AF
What determines whether a power of the fed gov't is exclusive
Three factors to consider:
1. Whether the constitution forbids a state from exercising the power (eg forming treaties, coining moniey, taxing imports and exports)
2. whether the constitution expressly grants the fed gov't an exclusive power; and
3. whether the power is one that, by its nature, could only be exercised by the fed gov't (eg borrowing money on the United States' credut, or conducting foregin affairs.
What powers does the Tenth Amendment reserve to the states
It reserves to the states (and the poeople) all powers not expressly delegatd to Congress by the Constitution; or prohbited to teh states
NOTE: the 10th amendment has very little practical effect today. it does not effectively limit COngress's commerce power, cinse Congress may even use that power to regulate the terms under which state an local gov'ts hire employees; furthermore the 10th doesn't effectively limit COngress's spending power, because even spending programs that seem purely local (bailing out a bankrupt city) would be considered for the 'general welfare"
howeer the amendment does have a couple of small effects 1) it prevents the fed gov't from compelling state or their officials to enact or enforce particular laws and 2) it gives rise to a constitutional doctirne of 'sovereing state immunity' under which states cannot be sued wihtout their consent in thir own courts by private parties.
Analyzing validity of state law
1. Is the law enacted within the states power (eg is it rationally related to police powers, invovling public health, safety, welfare, or morals)?
2. Does it improperly burden interstate commerce? and
3. does it violate any person's constitutional rights?
Note: the third question--is addressed under equal protection and due process
What doe sthe state have the power to protect under its 'police power'
the state has the power to proect the public health, welfare, safety and morals.

note that there is no federal police power (however, through its spending and interstate commerce powers, congress can accomplish many of the same goeals that the state accomplish through the police powers.
A state law directly contravenes a statute enacted by Congress. What clause in teh Constitution would provide the answer for which of the two will remain valid?
The supremacy clause of Article IV.
Note: most problems with teh SUpremacy Cluase coem abouwt whent ehre's no direct conflict between state and fed law; and the two merely address the same subject matter in different (but not explicitly inconsistent) ways. A direct conflict exists where one cannot comply wiht both fed and state regulations, or the objectives of the two conflict
When is there a direct conflict between state and fed law
when one cannot comply with both fed and state regulations or the objectives of the two conflict.
Nte; Most supremacy Clause problems invovle the CC
What does the Supremacy Clause do
It provides that any state or local law conflicting wiht a valid fed law must be struck down.
note that the Sup Clause does NOT provide a source of POWER for the fed gov't
What's the most common application of the Sup Clause?
Commerce Cluase Problems. In fact, the only time you use a cc analysis to decide the constitutionality of a state statute impacting interstae commerce is when there's no relevant fed legislation. 1
How do you analyze a supremacy Clause problem?
1. Did congress expressly authorize or prohibit state regulation (or does the const. expressly bar state action, eg coining mondey, conducting foregin affairs)?

IF so, that authorization or prohibition controls. If Not, go to Q2

2. Is there a direct conflict between the fed and state regulatio(eg joint compliance isn't possible, or the objectives conflict)? if so, fed law pre-empts. if there's NO direct conflict-- ie the fed and state stats merely cover the same subject matter- go to Q3

3. Was the fed law intended to occupy the entire field?
if so-- fed law wins-- if not- state law stands

NOTE: SC cases indicate that Congress will be deemed to have preempted an area wonly where its intent is unmistakable, or where the nature of the regulated subject matter does not permity any other conclusion.
A state stat regulates a field subject to concurrent state and fed regulation. Whatarethe four mostimportant factors that a fed court will look to in ascertaining whether COngress intended a fed law to pre-empt the field?
1. whether historically, the area has been regulatied manly be the states, or rather, mostly by the fed gov't
2. the pervasiveness of the fed regulation (eg, creating a fed agency with regulatory authroity);
3. the similarity between the state and fed law (the more they coincide, the more likely fed law intended to supersede state law;
4. the need for uniform fed regulation

note: naturally, Congress can expressly state its intent to preempt a field, or mandate that states will have the power to pass non-conflicting regulations, or announce its intent that a field won't be regulatined at all, but will be subject to market forces alone. THe four preemption factors only apply when there's no expressed intent
Analyzing state statutes affecting interstate commerce
1. is there relevant fed legislation? if so , there's a preemption issue, not a CC issue. IF NOT--
2. DOes the staute discriminate against interstate commerce (that is, does it either intentionally orunintentionally favor local economic interests over the economic interests of other state?)

if it does, the statute is invalid wihtout congress's consent to so discriminate, regardless of whether the burden would otherwise be permissible, unles either : A) it is designed to protect health and safety interests, it is reasonable, and no nondiscriminatory alternatives are available; or b) the state is a 'market participant' in which case it can discriminate in favor of local businesses as long asit doens't violate the interstate privileges& Immunities Cluase of Art IV (watch for this any time a sate or city interferes with private sector employment).

3. if the statute is non-discriminatory in both intent and effect, a balancing test is used to determine whether the burden on interstate commerce is unreasonable, thus invalidating the regulation; the burden on interstate commerce (Eg cost and difficulty of compliance, inefficiency created, existence of less-burdensome alternatives) vs the strength of the state interest in the regulation

NB: there is a strong presumption of validity of non-discriminatory statutes where the state interest is health, safety, or social welfare; on the other hand, a court is not likely to uphold the statuet where the state interest is seconomic ie aiding local business interests.

NOTE; Non-discriminatory regulation enjoyas a presumption of const. that can only be overcome by a clear showing that the state benfit is outweihed by a national interest in uniformity or hte free flow of commerce.

NOTE: Congress cannot authorize state violations of constitutioanal provisions other than the CC (EG, due process and qual protection
are there any circumstances under which states can regulate interstate commerce?
Yes. Non-discrim regulation is allowed as long as it meets this balancing test: the burden on interstate commerce (eg cost and difficulty of compliance, inefficiency created) is weighed agaisnt the strength of hte state interest in the regulation, to determine whether the burden on interstate commerce is 'clearly excessive'. In general there is a strong presumption of constitutionality of nondiscrim. statutes wehre the state interest is safety, health, or social welfare; courts are much less likely to uphold statutes that only protect local economic interests.
In order for a state regulation to be an unconstitutional burden on interstate commerce, must the state intend to burden interstate commerce
NO, if the burden is 'unreasonable' its unconst. even if the burden was unintentional. Note that, if the state does deliberately discriminate against interstate commerce (IE treats it less favorably than in-state commerce) the regulation will be invalid unless either A) Congress consents to it or B) it's designed to protect health and safety interests, it's reasonable and no nondiscrim alternatives are available; or C) the state is a market particpant. Few regulations actually pass muster under (b).
What does discriminate against interstate commerce mean?
it means that the state treats interstate commerce less favorably than in-state commerce.
Can a state discriminate against interstate commerce in order to aid local commerce?
NO, not without Congress' consent.
What is the market participant rule relating to interstate commerce
When the state is a 'market participant' (ie, buyer or seller of goods), it may discriminate in favor of local businesses. THat is, it could buy from local businesses exclusively (or preferentially); similarly, it could sell to them exclusively/preferentially

Rationale: the commerce clause only prohibits discriminatory REGULATION; when a state itself buys or sels, it's a PARTICIPANT, not a regulator.

NB: keep in mind that the fact a state is a 'market participant' doesn't insulate it entirely from violating the Commerce Clause. Situations where teh state beears the cost of providing economic benefits are permissible, because the state is spending its own tax revenues, as it has a right to do. However, where what the state is really doing is SHFTIN THE COST ofthe local benefit to out of staters (eg by requiring privately owned local business to sell to in-staters at a discount) the action is akind of regulation, and it violates the CC.

NB-- the state as a market participant would STILL be subjec to teh interstate P&I Clause, which limits its leeway as a market participant. Watch for this whenever a state or city interferes with private sector employment (EG by requiring a contractor on a state building project to hire only state residnets for the project; this could violeate the interstate P&I clause)
Is interstate commerce immune from state taxation
No. although, Congress can forbid states from taxing interstate commerce, if there is no contrary fed legislation, the Court will balance the burden on commerce agains thte state's need for revenue, and require interstate commerce to pay a fiar share.
Can Congress forbid states from taxing interstate commerce?
Yes, Congress can under its commerce power, forbid states from passing taxes that affect interstate commerce.

NOTE: if there isn't any fed legislation; the states are free to place a fair level of tax on interstate commerce, becuase such commerce must be expected to shoulder its fair share of a state's expsenses

NOTE: state taxes that discriminate against out-of-state residents also violates the ART 4 P&I Clause

NOTE: state taxes that discriminate agaisnt interstate commerce iviolate the Equal Protection Cluase if they are not rationally related to a legimate state purpose: eg the state cannot deny a tax exemption to a corporation solely due to its being incorporated in another state
Under what circumstances may a state tax activities involving interstate commerce?
First the state may tax such commerce if Congress expressly so consents. When there is no guidance from Congress, the validity of the tax will depend on whether it discriminates against interstate commerce.

1. If it is discriminatory-- EG it singles out interstate commerce for taxation, and there's no similar tax on local commerce, it virtually automatically violates the CC.
2. IF it's non-discriminatory, the court uses a balancing test to determine the validity of the tax on interstate commerce. the court balances the state's need for revenue vs the burden on teh free flow of commerce. THe burden will generally be too great under the CC, if multiple burdens are imposed on an interstate activity by various state taxes. It will be invalidunder the Due PRocess Cluase if there are 'insufficient contracts' between the subject matter and the state to justify the state's taxing the subject matter (since the subject matter would receive insufficient benefits from the state to justify the tax).
What are the four criteria that must be met before a state may tax non-resident individuals and companies doing business in the state
1. There must be a substantial nexus between activity taxed and state. (if not, the state lacks jxn over the activity, and taxing it would be a due-precess violation)
2. the tax must be fairly apportioned
3. the tax must not discriminate against interstate commerce
the tax must fairly relate to services provided.
What does the Import-Export Clause provide?
Under Art I S10, clause 2, states cannot tax imported goods in a discriminatory manner (eg above the costs of inspection) except with Congress' consent, and they cannot tax exported goods once theyv'e entered the 'exprot stream'

NOTE: however, a state can charge a nondiscriminatory ad valorem property tax on ALL goods in-state, INCLUDIN imported goods-- at least as long as the goods are no longer 'in transit'. the rationale is that imported goods must bear their fair share of the cost of state services.
What does the interstate Privileges and Immunities Cluase DO? (ART IV S2, Clause 1)
It prevents states from discriminating against out-of-state citizens and residnets, with regard to reights "fundamental to national unity", unless
A) the discrimination is closely related to a substantial state purpose (eg protecting naturlal resources OWNED by sa state) AND
B) less restricitve means to accomplish this purpose are not feasible.

NB: corporations and aliens are not protected by the IP&I Clause

COMPARE: the 14th amendment Privileges and IMmunities CLause protects incidents of NATIONAL citizenship (eg the right to vote for fed ovfficers, the right to migrate interstate), not citizenship of other states. (Actually, that's what it odes in theory, in practice it doesn't do much,b ecuase most of whta it does is more effectively done by the DUe PReocess and Qual Protection Clauses. SO the intersate P&I clause is ithe one you care much more about.
Analyzing Interstate P&I clause
1. is the person being discriminated against an out-of-state citizen or resident? if so, he's covered by teh cluase, so go on to #2 (if a corp or alien, then not protected by the Clause)

2. is the activity regulated a right 'fundamental to national unity"? (essentially, this means the right to earn a livign or otherwise puruse a commercial activity, and probably also means rights like receving medical care, owning property and accessing the judicial system) if it is, go on to #3, if not, it's not protected

3. is the discrimination closely related to a substantial state purpose (eg protecting the state's natural resources) it if is, go on to #4, if not, it vioaltes the clause

4. Is the discrimination a reasonable means of protecting the substnatial state purpsoe (namely, are there no less restrictive means reasonably available? if so, the discrimination is permissible. If not, the discrimination vioaltes the Cluase.
Does the interstate P&I clause require a state to permit a foreign corporation (incorporateed in some other state) to do business in-state
No, the intersate privileges and immunities clause only protectes out of state citizens and residents. and a corpartion is not considered those.
What does the P&I clause of the 14th amendmetn do?
the clause voids those state enactments that clearly infringe the privileges of 'national citizenship' these are limited to fundamental rights shared by all US citizens, namesly the right to travel freely from state to state, to petition Congress for redress of grievances, to vote for national officers...

THe reason the cluase has little practical efect is tha thteese same rights are protected agaisnt state interference by the DUE Prrocess and Equal Protection Clasues of the 14th amendment. SO wehrever P&I would apply, DP or EP would generallybe a stronger argument against the const of the state action. but the court has held that the clause requires strict scrutiny when a state treats 'newly arrived residents less favorably' than longer standing ones (Saenz v Roe (1999)

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