Federalism (10th Amendment); Other Laws

Supremacy Clause

State can’t regulate or tax the fed. Fed may not commandeer a state to enact or enforce a regulatory program.

• Includes compelling a state to enact legislation or prohibiting them from doing so

• But it may encourage action via taxing and spending powers (conditional funding)

Dormant Commerce Clause

If Congress is silent, state regulation that:

1. Discriminates against out-of-state commerce (Dean Milk)

2. Unduly burdens commerce (burden of regulation > local benefits to state)

3. Purposefully regulates wholly out-of-state activity

Discrimination exceptions:

1. Necessary to serve important state interest (i.e. fish for ecological purposes)

2. State acting as market participant (e.g. owns cement plant)

3. Congress expressly authorizes regulation

State Taxation of Commerce

Only if:

1. Congress is silent

2. Tax does not discriminate or unduly burden commerce

3. Substantial nexus between state and activity taxed

4. Fair apportionment of tax liability among states

Permissible Taxes: ad valorem (property tax), sales tax, use of goods within the state, and business tax.

Preemption

1. Express: Congress explicitly states

2. Conflict: Impossible to comply with federal and state law at the same time

3. Field: Federal regulation so thick that we imply Congress has determined there can’t be concurrent state law

Interstate Compact

Allows states to enter into agreements with each other when Congress consents. Only required for compacts that alter power balance between the states and federal government.

Full Faith & Credit

Given to out-of-state judgments that are final, came from a court with proper jurisdiction, and are on the merits (rather than a procedural issue).

Privileges and Immunities Clause

• Article IV/Comity Clause: prohibits discrimination of out-of-state individuals.

  • Ex: charging out-of-state citizens more for a commercial shrimping license. However, may do so for a recreational license if rational basis (e.g. conservation).

  • Exception: Substantial justification for it. Does not apply to corporations or noncitizens.

• 14A: protects citizens from infringement by the states of national citizenship (v rare)

Takings (Fifth Amendment)

• Can take private property for public use (need rationally related to any conceivable public purpose) with just compensation (FMV at taking)

• Taking = right to occupy (even small space) + destruction (unless public peril)

Regulatory Taking

1. Gravity of economic impact

2. Extent of interference with reasonable investment-based expectations

3. Character of the regulation (i.e. its benefit to society)

Test relevant if not a total taking. Per se regulatory taking = physical occupation or no economically viable use.

Exaction

Government may exact promises from a developer in exchange for issuing the necessary permits. Government must establish:

1. Essential nexus (conditions advance legitimate state interest)

2. Rough proportionality (between burden imposed and the impact of the development)

Prohibited Laws

1. Bills of Attainder: legislation that declares a person or group guilty of a crime/civil violation and punishes them w/o a trial

2. Ex Post Facto Laws: retroactive change to a criminal law

3. Obligation of Contracts: state legislative impairment of existing contracts between private parties unless emergency