Section 2: State Powers
|What has the court interpreted the 10th amendment as saying||If the constitution didn't reserve or prohibit power to the federal then power is reserved for states or the people|
|What is the traditional power reserved to the state||Police power|
|What is police power?||The power to regulate and promote the health, safety, moral, and welfare of their citizens.|
|Limits on state law|| 1) Supremacy clause - preemption doctrine|
2)Dormant commerce clause
3) The privileges and immunities
|Supremacy clause - preemption doctrine|| 1) field preemption - no room for the states to legislature|
2) Collation or issue preemption: states can regulate but not in conflict with federal law.
|Congressional intent to preempt state action can be evidences in what ways?||1) the scheme of federal regulation may be so pervasive as to make reasonable the inference that congress left no room to the states to supplement it. |
2) The federal legislation "may touch a field in which the federal interest is so dominant that hte federal system will be assumed to preclude enforcement of state laws on the subject
3) the state policy may produce a result inconsistent with the objective of the federal statute.
|Classic field preemption?|| 1) ERISA|
2) patent law
3) alien regulation
4) indian affairs
5) regulations of federal currency
6) federal debt obligation
7) federal debt obligations
|Classic Issue preemption? (3)|| 1) anti-trust law|
2) federal securities laws
3) Environmental laws
|Dormant commerce clause||Whether a state's action burdens the flow of interstate commerce and thereby unconstitutionally interferes with the federal commerce power.|
|two ways a state can run afoul to the dormant commerce clause|| 1) on its face favors the state|
2) neutral on its face but places an undue burden on interstate commerce.
|How do you determine undue burden?||Pike test|
1) is the state statute regulating evenhandedly to effectuate a legitimate local public interest, and
2) its effects on interstate commerce are only incidental
If no then it is unconstitutional. If yes then...
3) Does it impose a burden on commerce such that is is clearly excessive in relation to the putative local benefits?
If a legitimate local purpose is found then the question is one of degree. Balance the degree of the burden against the importance of the state interest.
|Dormant commerce clause analysis?|| A) Does the law discriminate against interstate commerce?|
B) If not, does the law burden interstate commerce?
1) How substantial is the burden?
2) What is the purpose of the law?
3) Is the law's purpose important enough to justify the burden?
4) Is there a less burdensome alternative?
|What is the government market participation exception?||State and local governments are not restricted by the commerce clause when they act as market "participants" rather than as market "regulators.".|
|What does the privileges and immunities clause state?||The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.|
|Who can bring a P & I action?||On citizens|
|When does a citizen have a P and I action?||When a specific P & I clause fundamental right|
|What are specific P & I clause fundamental right? (3)|| Right to travel |
right to own property
right to transact business - including law.
|When can a state impose a nondiscriminatory tax upon movable property?|| i) substantial nexus with the taxing state. |
ii) if it has come to rest and thereby acquired a tax situs within the state.
iii) Must be fairly apportioned to the activity occurring within the taxing state, and fairly related to the service provided by the state.
|What restrictions are placed on states by the dormant commerce clause to enact sales and use tax?||1) A state cannot impose a sales tax on a sale occurring entirely in another state or on an interstate sale if the effect is to discriminate against interstate commerce |
2) A state can requires a foreign seller to collect a use tax on goods shipped into the state only if the seller has a sufficient nexus with the taxing state.
3) A sales or use tax can be defeated by showing the risk of multiple taxation, but the burden to show it is on the taxpayer.
|When is a use tax discriminatory||When its higher then the sales tax|
|When does the P & I clause restrict states from imposing taxes on people?||The P & I clause protects the right to pursue one's trade or business. If a state tax restricts a protected privilege or immunity and is discriminatory against citizens of other states it is unconstitutional|
|14th amendment clause limitation on taxation: Tax due process|| 1) A company must have minimum contact with the state to force a company to pay taxes|
2) Is the tax fairly apportioned to avoid multiple taxation.
|14th amendment clause limitation on taxation: Equal protection clause.||Is there a rational basis?|
|Tax import-export clause limitations|| GR: A state can't impose imposts or duties on imports or exports|
E: can charge to inspect for health and safety but only as much as they need it can't be a revenue raiser
|Contract clause analysis|| 1) does it impair private obligations? If yes the state can do it if it the state has an overriding state interest|
2) if a state passes a law to undo its own contract the state has to show an exceedingly high overriding state interest.
|Taking analysis|| Was there a taking at all?|
If yes then was it for a public purpose?
Was there compensation?
|What is a taking?||1) Physical occupation of property by the state or condemnation of property will constitute a taking|
2) the denial of all rights in land or substantially all use of land also will constitute a taking.
3) Other regulations that impair the use of property may be a taking, but will depend on the degree of impairment.
|What is a public purpose?||Building a highway, hospital, public purpose.|
|What is just compensation||Means Money, FMV|