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Preemption (TEST #1)
Terms in this set (21)
the act of the fed gov replacing/ displacing state law with the fed law
what allows/legalizes fed law to do this? (from Constitution)
difference between replacing and displacing a law
replacing: no power to state, completely remove the state law, make it void
displacing: might take portion of it and remove it/ amend it, its a modification
in enumerated powers, __ clause allows fed gov to...
Example with transportation?
Regulate goods and services across state lines (interstate)
So transportation (which is in Constit under state's reserved powers) can be controlled by fed gov bc they have superiority
Necessary and Proper clause allows fed to...
Example with wheat farmer?
expand existing enumerated powers
In Wickord v. Filburn, wheat farmer under a farm subsidy wanted to grow tomatoes for himself (family to eat only), but fed law said no. Thus, farmer couldn't bc although would use for own use, can affect intrastate commerce and fed has power over that.
Will fed always trump state? NO. Why? Bc can lack __. which includes...(3)
presumption v. preemption, dual sovereignty, commandeering
presumption v. preemption?
Traditionally respect that federalism exists-> a contract -> relationship -> to not overload fed gov
doctrine held by gov institution respecting the principles of federalism
__ may not occur bc of dual sovereignty
both fed and state gov have authorization to regulate an area
(1)taxes bc both govs have right and authority to collect them -> both cannot prohibit each other
(2)child pornography -> both have jurisdiction so an offender can be charged by both the state and gov
(3) water can be regulated by both govs
only happens/ is valid if ...
if __ does not occur, then fed cannot commandeer states.
But doesnt mean there won't be any __.
Example with Printz v. US case?
fed gov may not force state/local gov to either adopt or enforce fed laws
if state have jurisdiction over an area
Brady Handgun bill tried to force states to conduct background checks before any guns are purchased. But fed can't commandeer this bc states have a right to own gun laws so it's up to fed to enforce own law they passed bc both state and fed have jurisdiction.
When does fed law trump state law
1) Fed gov has to have __, if doesn't have it, it ends there -> __ will not occur -> no legal authorization to do so
2) there has to be a __ between the two govs
Two types of preemption?
total and partial
fed gov assumes complete regulatory authority -> fed has complete control over entire area -> no room for state
airline industry where fed gov takes over entire area and states can't make laws about airports
Fed gov has jurisdiction but will only take over part of it so states have to ...
congress establishes minimum national standards and authorizes the states to exercise primary regulatory responsibility
adhere to it and if states want to regulate it more, they can, but not less
EPA regulations there are national standards (CA has highest standards, beyond fed law)
Expressed or implied law
Major Q: Did Congress specifically specify the level of preemption, or is it implied?
which one happens less often? why?
expressed: clearly stated, when fed statute clearly states Congress' intention to supersede state law
implied: general, vague, ppl interpret law as they see fit (to their advantage)
expressed law bc it's harder to pass when in a bill trying to become a law
Difference between field and total juris?
when congress intentionally leaves no room for state authority in a given area
total juris: state clearly states it
field: vague language or that over the years Congress has regulated more and more of it (areas wise) (can be unintentional)
Conflict two types?
Meaning if someone obeys one law, then would __ the other.
Fed law will __ state law if conflict exists.
state puts roadblock that...
impossibility and obstacle
laws cannot continually stand together
law prevents fed gov from accomplishing
prevents fed gov from doing its' job its' objective
commandeering does not prove __
a state law can remain but fed cannot __ if both have jurisdiction. Also, can't use it to prove __.
When questioning if can commandeer under preemption...
yes: fed can commandeer
no: feds cannot commandeer
maybe: (partial juris) so feds can commandeer up to minimum standards
Does fed law have juris (preemption valid)? (YES/MAYBE)
5 steps in determining:
Where is jurisdiction? (enum., commerce clause)
What kind of juris? (total/ partial)
Expressed or Implied?
Conflict? (Impossibility/ obstacle)
Does fed law have juris (preemption valid)? (NO)
Lacks juris if... (3)
If lacks juris then NO __ then.
-area reserved for states
-presumption v. preemption (like policing)
This set is often in folders with...
Human Nature (TEST #1)
Federalism (TEST #1)
Anti-federalist (Increase in centralization) (TEST…
Southern/ Central Pacific Railroad (TEST #2) (1)
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