Constitutional Law Foundations 3 - Federalism

Federalism: Balancing Federal and State Powers (Part 1)

Introduction

• Federalism involves the structure and operation of government, balancing state and federal powers.

• States were eager for self-governance after the revolution.

• The challenge is coordinating the relationship between states and the federal government.

Exclusive Federal Powers

• Some powers are exclusively federal, such as:

  • Coining money

  • Entering into treaties

• These powers require a unified national voice.

State Powers and the Tenth Amendment

• The Tenth Amendment reserves powers not given to the federal government to the states and the people.

• Federal government lacks general police powers (legislating for health, safety, and welfare).

• States possess police powers to benefit the general welfare.

• Congress needs a specific grant of power to legislate; states don't.

Shared Powers

• Most powers are shared between the federal and state governments.

• Conflicts can arise over these shared powers.

Supremacy Clause and Preemption

• The Supremacy Clause makes federal law (including the Constitution) supreme.

• Preemption occurs when federal law conflicts with state or local law; federal law wins.

• Preemption can be express or implied.

Express Preemption

• Express preemption happens when a federal law explicitly states it wins or is exclusive.

• Example: A federal law mandates specific medication label requirements, preempting conflicting state laws.

Implied Preemption

• Implied preemption is more complex and includes three types:

Conflict Preemption

• Conflict preemption arises when federal and state laws are mutually exclusive (compliance with both is impossible).

• Example: Federal law requires an eight-point font on labels, while state law requires a six-point font.

Object Preemption

• Object preemption occurs when state law impedes the achievement of a federal objective.

• Example: Federal law aims for clear labels, but state law allows labels only in Klingon.

Field Preemption

• Field preemption happens when Congress intends to occupy an entire field of regulation.

• Congressional intent is determined by examining the structure of the law or legislative history.

• Example: Immigration law is generally considered an area of field preemption.

Presumption Against Preemption

• Courts presume that state law is not preempted, especially in areas traditionally regulated by the states (like police powers), unless Congress's clear intent was to supersede state law.

Intergovernmental Immunities

• States cannot tax or regulate federal government activity.

• Federal government is largely immune from state control.

Key Points

• States can't regulate federal agents performing federal functions.

• States can't require a US Air Force pilot to have a state pilot's license to fly a military jet

• States can't directly tax federal instrumentalities (e.g., federal agencies, national parks) without congressional consent.

• Nondiscriminatory indirect taxes (e.g., income tax) that apply to everyone, including federal employees, are permissible if they don't unreasonably burden the federal government.

***Tenth Amendment and Anti-Commandeering Principle

• The Tenth Amendment reserves powers not delegated to the federal government to the states and the people.

• The Tenth Amendment limits what Congress can tell states to do.

• Anti-commandeering principle: Congress can't command states to pass state laws or enforce federal law.

• Congress can pass laws that apply to both states and private entities.

• Example: A federal law banning employers from firing employees for having blue hair can apply to state employers.

Conditional Spending (Money with Strings)

• Congress uses its power to tax and spend, employing conditional spending to influence state actions.

• Conditions must be expressly stated, related to the purpose of the program, not unduly coercive, and not violate the Constitution.

• If Congress could withhold all funding unless States pass every law Congress dreamt up, it would render the 10th amendment meaningless.

Example: Minimum Drinking Age

• Congress can't set a minimum drinking age directly or order states to pass such a law.

• However, Congress can withhold a percentage of federal highway funds (5%) from states that don't set the drinking age at 21.

• If Congress tried to withhold all funding or all highway funds or simply enough that the states really have no choice but to comply, the condition would be unduly coercive and cross into commandeering territory.

Key Concepts Recap

• Supremacy, Tenth Amendment, Preemption, Commandeering, Conditional Spending

• These concepts govern the balance between federal and state powers.

Federalism: State Relations and the Dormant Commerce Clause (Part 2)

Introduction to State Relations

• Federalism requires states to cooperate and avoid infringing on each other's powers.

• The goal is to ensure smooth governance and shared power.

• The Supreme Court clarifies and enforces the rules of this cooperation.

Shared Power: Interstate Commerce

• States and the federal government share power, particularly in interstate commerce.

• When Congress speaks on a matter of shared power, it generally wins (Supremacy Clause).

• However, when Congress hasn't spoken, states can regulate, subject to certain limits, especially concerning interstate commerce.

• Want the states to get along by ensuring that everyone plays fair.

***The Dormant Commerce Clause (DCC)

• The DCC is not explicitly in the Constitution but is implied by the Supreme Court.

• The DCC states that a state or local law is unconstitutional if it places an undue burden on interstate commerce.

***Privileges and Immunities Clause

• The Privileges and Immunities Clause (Article IV) ensures that states cannot deprive citizens of other states the privileges and immunities it accords its own citizens.

• Protects individuals from discrimination based on state citizenship.

• Protects individual citizens, not corporations or non-citizens.

  • Rhode Island can't pick on folks from Connecticut.

Distinguishing P and I Clauses

• The Privileges or Immunities Clause of the Fourteenth Amendment protects attributes of national citizenship (e.g., the right to vote for federal officers, enter public lands, or travel among the states).

• Comes into play when a state treats new citizens differently from those who've been around longer.

Analyzing State Laws Impacting Interstate Commerce

• If Congress hasn't spoken, determine if the state law discriminates against out-of-staters.

• If no discrimination, the Privileges and Immunities Clause is not implicated.

• However, the law may still burden interstate commerce, triggering the Dormant Commerce Clause.

Undue Burden on Interstate Commerce

• A nondiscriminatory state law that burdens interstate commerce is valid unless the burden outweighs the promotion of a legitimate local interest.

• The court will consider whether any less restrictive alternatives are available.

• Suppose Indiana passes a law saying no purple vehicles can be driven in the state.

• While the P and I clauses remain silent because there's no true discrimination, not even locals can drive purple cars, the DCC intervenes here.

Discriminatory State Laws

• If a state law discriminates against out-of-staters, both the DCC and the Privileges and Immunities Clause may apply.

• DCC: a state law that discriminates against interstate commerce is invalid unless it is necessary to achieve an important government purpose.

• Examples of discriminatory laws that probably aren't allowed:

  • Taxing board games made out of state at a higher rate than games made in state?

  • Requiring milk to be processed in-state if you want to sell it in-state?

  • Prohibiting private landfills from accepting out-of-state waste is a no-no?

Exceptions to the DCC

Congressional Approval

• States can discriminate against interstate commerce if Congress authorizes it.

• Congress's power to regulate interstate commerce is extensive enough to allow Congress to favor one state over another

Market Participant Exception

• The DCC doesn't apply when the state itself is buying or selling things.

• California can buy all the milk for government cafeterias from California dairies.

• However, if Cali tells private companies to buy milk only from Cali cows, then we've got a DCC problem.

DCC Recap

• If the law doesn't discriminate but does burden interstate commerce, it's okay unless the burdens on interstate commerce exceed the benefits.

• However, if a law does discriminate against out-of-state commerce, it's invalid unless necessary to achieve an important government purpose or unless there's an exception, the state acting as a market participant or congressional approval.

The P and I test

• When a state law discriminates against interstate commerce, the P and I test is similar to DCC, but it's pickier.

• The P and I applies only if the discrimination impacts fundamental rights or important economic activities (i.e. the right to earn a living).

• So the P and I, no discrimination, no problem. But if there is discrimination and it involves a fundamental right or the ability to earn a living, then it violates the P and I.

• That is, unless it's necessary to achieve an important government interest.

  • Limiting bar admission to state residents is a P and I problem, but charging nonresidents more to enter a state park isn't.

Final Thoughts

• The Dormant Commerce Clause and the Privileges and Immunities Clause work together to govern the balance between state and federal power by protecting states and the federal government from trampling on each other's toes.