Federalism questions 10, 11, 14th amendment

field preemption

occurs when congress leaves no doubt that congress has intended by its legislation to occupy and entire field, such that even without a federal rule or some particular activity within the field, state regulation of that activity preempted, leaving activity unregulated by either state or federal law.

Which of the following best states the test that courts apply to determine whether a state is acting in manner consistent with the Constitution when it enacts a law expressly discriminating against another state's commercial interests?

A form of strict scrutiny: Such a state's law is constitutional only when it has a legitimate state purpose and is the only means of achieving that purpose.

Which of the situations triggers a presumptions AGAINST finding that a state law is preempted by federal law?***

A situation where the federal law would override the HISTORIC POLICE powers of the States if preemption were to occur. ** court has often stated that where finding implicit premption would result in federal government overriding a historic police power, then the court will presume that there is no federal preemption - unless congress has made CLEAR that such preemption is intended.

Which of the following provides the best summary of why the Supreme Court majority in US Term Limits v. Thornton decided that a state may not impose term limits on its congressional representatives (to the House or the Senate)?

A state may not impose term limits because the qualifications for representatives in Art. I should be read as exclusive, and although the 10th amendment reserves powers for the states, the states cannot be deemed to have preserved power that they didn't have before the Constitution.

May a state impose a tax on a federal bank (under the holding of McCulloch v. Maryland)? Why or why not?

No. Giving a state the power to tax the federal government's operations would undermine the Constitution's design by giving states an impermissible level of control over the federal government and allowing a tax to be imposed on the US by an entity which the people of the US are not fully represented.

May states discriminate in favor of their own wine merchants by passing special restrictions applicable only to on-line wine sellers that operate out of state (and why or why not)?

No. The Court has found that doing so would violate the Dormant Commerce Clause.

States may be sued in federal court -- if they consent. However, when they don't consent to be sued in federal court, the only constitutional provision that allows the federal government to abrogate states' sovereign immunity is:

Section 5 of the 14th Amendment.

Which of the following identifies a way in which citizens might still use the judicial power vindicate their rights (when those rights are violated by state government)?

They might sue specific state officials instead of the state itself, where there is a continuing violation of federal law, for prospective injunctive or declaratory relief.

The states and the federal government may both, in some circumstances, have power over the same types of activities. T/F

True

Congress enacts a law allowing individuals to sue a state -- in that state's own courts -- for damages when the state violates citizens' federal constitutional rights (for example, citizens' First Amendment rights). It allows citizens to do so even when a state does not consent to be sued. Which of the following is true about this Act of Congress?

Unless Congress has permissibly used Section 5 of the 14th Amendment to abrogate states' sovereign immunity, this Act is unconstitutional because it violates that state sovereign immunity.

Which of the following best states the Pike Balancing test?

When a statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on commerce is clearly excessive in relation to the putative local benefits.

Imagine that Congress enacts a federal law on drug labelling, and the Court finds that this law does **not** "occupy the entire field" of that subject. When may the Court nonetheless find that Congress's law preempts a particular state law?

Where it is impossible for an individual or company to comply with both the state law and federal law, or where the state law would create an obstacle to the achievement of Congress's objectives in the federal law.

In Kassel v. Consolidated Freightway, the Court refused to accept Iowa's claim that a ban on 65 foot trucks promoted substantial safety interests in a way that was consistent with the Dormant Commerce Clause. Which of the following best explains a key step in rejecting Iowa's claims about the safety benefits of the law? **

While Courts will generally defer to states when it comes to highway safety regulations, they will not extend such deference where the local regulation bears disproportionately on out of state residents and businesses.

In City of Boerne v. Flores, the Court found that in the Religious Freedom Restoration Act (RFRA), Congress had invoked its 14th Amend, Section 5 power to do something that the Constitution does not permit? Which of the following best describes the constitutional problem the Court identified in that case?

Congress had invoked its Section 5 power to change the meaning of a constitutional protection (for religious liberty) and not to remedy the violation of such a constitutional protection. The application of RFRA to incidental burdens on religious liberty here could not be defended as a "prophylactic" against intentional targeting of religious practices.

Which of the following phrases best describes the Court's test for when Congress may use its Section 5 powers to regulate a range of conduct broader than the forbidden by 14th Amendment?

Congress's measure must be congruent and proportional to the violation it is addressing.

Which of the following is **not** one of the categorical or per se rules the Court will use to decide that a certain government action is a taking?

Laws that merely prevent noxious uses of the property are *not* takings.

In Dean Milk v. Madison, the Supreme Court struck down -- as inconsistent with the Dormant Commerce Clause -- a Madison ordinance that prohibited the sale of milk in that city "unless it has been processed and bottled at an approved pasteurization plant within a radius of five miles from the central square of Madison." Which of the following best states the Supreme Court's holding in that case?

Madison's requirement violated the Dormant Commerce Clause because it discriminated against out-of-state commercial interests and there was a reasonable non-discriminatory alternative for furthering its interests in safe milk. ** applied a form of strict scrutiny. They identified a non discriminatory alternative.

Which of the following does Justice O'Connor's concurrence in Printz suggest may well be OK for federal government to require of state officials?

Measures which impose purely ministerial reporting requirements.

What has the reaction of states been to the Kelo v. New London decision? **

Most states have responded by making it harder for the government to show that the use for which it is taking property constitutes a public use. ** not enough protection to private property owners.

Imagine that Congress -- in order to crack down on drug smuggling along Interstate Highway 35 -- enacts a law requiring state legislatures of states along that route to purchase and provide for installation and operation of, along Interstate 35, one of six types of surveillance equipment for locating and collecting information about vehicles suspected of transporting drugs. Would such a federal requirement be constitutional?

No, because although Congress may ask (or provide financial incentives for) states government to assist in carrying out federal policy, it may not not command state legislatures or state officials to carry out such policy.

implicit preemption

federal law does not say its preempting contrary state law

express preemption

federal statute says that its preempting contrary state law. (explicit language)

Test michigan applies in Wayne v. Hathcock

1) condemnation necessary to obtain public benefits 2) management of the property remains, after transfer to the new private owner, accountable to the public. 3) purpose of the condemnation is to secure a public benefit.

Comstock factors - necessary

1. reasonably adapted to attain the end 2. tradition 3. reasonable addition to a longstanding federal scheme 4. doesn't improperly infringe on state powers 5. link to enumerated power is not too attenuated

Which of the following best represents Justice Scalia's view of how the Court should apply the Dormant Commerce Clause?**

Although the Dormant Commerce Clause is not rooted in the Constitution's text, the Court should find unconstitutional (1) a state law that facially discriminates against interstate commerce, or (2) a state law that is indistinguishable from a type of law previously held unconstitutional by this Court.

Congress would like to encourage New York state to dispose of its own radioactive waste within New York's own borders. Which of the following measures may it take to accomplish this end?

Authorize other states which currently receive and store New York's radioactive waste, such as Nevada, South Carolina and Washington, to begin refusing that that waste after a certain amount of time, leaving New York to find its own storage for the waste (most likely, within its own borders).

Why did Justice Brennan's concurring opinion in Kassel find that use of the Pike balancing test was unnecessary to strike down Iowa's ban on 65-foot trucks

Because Iowa's actual purpose in enacting the limit was to limit the use of its highways by deflecting some through traffic (and the hazards it carried) around Iowa into other states, and this protectionist purpose is per se impermissible under the Dormant Commerce Clause.

Which of the following best explains why commandeering would undermine political accountability, according to Justice O'Connor (in New York v. US)?

Because although the federal government is the one imposing the policy, citizens would see state governments enacting it legislatively or state officials carrying it out, and thus may blame the state for what the federal government has required.

In Board of Trustees of the Univ. of Alabama v. Garrett, the Supreme Court rules that Section 5 of the 14th Amendment **did not** give Congress the power to abrogate -- in the Americans with Disabilities Act (or "ADA") states' immunity from disability discrimination suits. That was because authorizing such ADA suits against states, said the Court, was **not** "congruent and proportional" to the goal of remedying any violation of citizens' 14th Amendment rights. As the dissent pointed out in that case, Congress did "compil[e] a vast legislative record documenting 'massive, society-wide discrimination' against persons with disabilities." Why then did the Supreme Court majority find that such a record failed to support Congress's exercise of its 14th Amendment 5 powers to allows suits against states under the ADA? ***

Because in order to justify abrogation of state sovereign immunity, Congress's remedy has to congruent and proportional not just to the goal of preventing all state employment action disadvantaging those with disabilities, but to the narrower goal of preventing only action of this type that failed the (very hard to fail) rational basis test. The Court found the ADA remedy was not tailored to that narrow goal and also that Congress lacked sufficient evidence of discrimination carried by state entities (rather than businesses more generally).

Which of the following best explains why the Court upheld a state law that required that all solid waste generated locally be deposited in a public facility (with fees higher than those previously available in private waste storage facilities)?

Because laws favoring local government and its facilities are different -- and more likely to survive Pike balancing -- than are laws favoring in-state business interests, largely because they are more likely to promote goals other than protectionism

In Nevada Dept of Human Resources v. Hibbs, the Court found that Congress **was** constitutionally permitted (under Section 5) of the 14th Amendment to abrogate state sovereign immunity in order to allow individuals to sue states for violating the Family Medical Leave Act (FMLA) by discriminating on the basis of gender (for example, by refusing to give a male employee the same amount of family leave as a female employee). Which of the following is a reason the Court gave for why it was easier for Congress to meet the congruence and proportionality test here (in Hibbs) than it was for it to meet it in Garrett, when it was trying to abrogate state sovereign immunity against suits for disability discrimination?

Because the gender discrimination Congress was trying to remedy in the FMLA was subject to intermediate scrutiny, not just rational basis (like disability discrimination). So it was more likely to unconstitutional, and Congressional bans on it (or on related action by state) could more plausibly be said to be targeting unconstitutional action by states.

Which of the following best explains - in the view of Supreme Court majorities in cases such as Hans v. Louisiana, Seminole Tribe, and Alden v. Maine -- why a state may prevent even one of its **own** citizens from suing it in federal court (or even in its own state courts)?***

Because when the Supreme Court held that states may be subject to suits, the 11th Amendment was proposed and ratified by strong majorities in order to signal that the Constitution of 1787 contained a strong principle of state sovereign immunity -- and sovereign immunity immunizes states even against suits from their own citizens.

Which of the following is a negative consequence that Justice Kennedy -- in Alden v. Maine -- stresses would follow from allowing states to be made suable in their own state courts (or for that matter, in federal courts) without their consent? ***

Doing so would allow states to be subject to money damages in court that might place unwarranted strain on states ability to determine for themselves, according to their own citizens will, how scarce resources should be allocated.

May a state regulate the federal government and its instrumentalities?

No. A state may not directly regulate or discriminate against the federal government, but where the federal government has not spoken, is permitted to enact general rules that incidentally affect federal government operations.

When states enact a law that refuses to out-of-state individuals (who are U.S. citizens) some of the same privileges and immunities that they accord to their own citizens, which form of scrutiny does the Court give to the law?

Intermediate scrutiny: The state must show that the difference in treatment bears a close relation to substantial state purpose. PRIVILEGE AND IMMUNITIES = INTERMEDIATE SCRUTINY

In County of Wayne v. Hathcock, the Michigan Supreme Court held that Michigan acted impermissibly when it took land for a new business and technology park - because doing so was not for public use. On what grounds did Michigan find that this was an impermissible taking? ***

It applied a test it rooted in the Michigan constitution and found that Michigan's government had failed to show that the taking was necessary for the public benefits, or that the new property managers of the park remained accountable to the public; or the condemnation of the property itself (not just it's subsequent use) provided a public benefit. *** even though Keto makes it easy for government to satisfy the public use test, each state can adopt different takings doctrine under its OWN STATE constitution.

A local government requires every house, apartment and other property owner to reserve a cubic square foot of the living space they own for placing a cable (which will be able to carry Internet, phone, and TV service) -- even if they do not desire any such service. A particular home owner objects that government can only require him to provide such a cubic square foot if it pays him compensation (since the requirement effects a "taking"). Which of the following will a court rule under current takings law?

It is a taking, because the government is imposing a requirement that will cause the physical occupation of the home owner's space in a way he does not consent to and that makes the requirement a taking no matter how small the amount of space occupied.

Which of the following best describes what the Court demands of government when - in assessing the constitutionality of a government act -- its subjects it to "strict scrutiny"?

It presumes it is unconstitutional, and only concludes it is constitutional if government is pursuing a compelling government interest using only means which are necessary to achieve that interest.

Which of the following best describes what the Court demands of government when -- in assessing the constitutionality of a government act -- it subjects it to "minimal scrutiny" or "rational basis"?

It presumes that the act is constitutional and will find it unconstitutional only where government lacks a legitimate government interest and is means that are not rationally related to that objective.

In Kelo, Justice O'Connor dissents -- and would hold that New London's taking of private land for purposes of economic development is an unconstitutional taking for private use (rather than a permissible taking for public use). How does she distinguish the taking in Kelo from that which she found constitutional in Midkiff, where Hawaii used its eminent domain power to break up an oligopoly in property ownership?

She argues that unlike the transfer of property in Kelo, the transfer in Midriff had a public use because it was eliminating a harm to the public inherent in the pre-condemnation use of the land (an oligopoly).

Imagine that Oklahoma expressly grants special tax exemptions to Oklahoma corporations engaged in oil exploration, but to deny the same rights to oil companies from other states. Which of the following is true?

Such a law may well violate the Dormant Commerce Clause, since it is facially discriminatory, but it would not violate the Privileges and Immunities clause since that clause does not protect corporations

Imagine a state enacts a new law forbidding an owner of two pieces of beach front property from developing that property in any way. The owner then sues the state, claiming this law constitutes a taking and notes that there is no nuisance or other common law rule that would forbid the owner from developing the land. Based on your reading, what will the Court likely hold (and why)?

That it is a taking, because it denies the owner all economically viable use of the property (and do not do so in a way that merely abates a common law nuisance or otherwise gives force to common law).

In Geier v. American Honda Motor Co., the Court had to decide if a state negligence law that could have made Honda liable - for manufacturing a car without an airbag - was preempted by a federal regulation issued by the Dept. of Transportation that allow automobile manufacturers to gradually phase in air bags into the cars they manufactured (and did not require Honda or other automakers to include airbags at the time Honda manufactured the car at issue in the lawsuit in Geier). What did the Court hold?

That state negligence law was preempted to the extent it required Honda to do install airbags before federal law did - because of obstacle preemption: One of the purpose of the federal regulation was to give car manufacturers time to gradually phase in airbags and state law would undermine that federal objective if it required installation of airbags earlier than the federally mandated time for doing so.

Which of the following is the basis for Supreme Court justices' conclusion that within the Commerce Clause there is a "Dormant Commerce Clause" limit barring states from discriminating against commerce from other states?***

The historical evidence that the Framers gave the federal government control over interstate commerce largely to prevent the damage to national and state economic welfare caused by states' discrimination against each others' commerce under the Articles of Confederation.

In Hunt v. Washington State Apple Advertising Commission, the Supreme Court evaluated the constitutionality of a North Carolina law that required apple shipments to be labelled only with the USDA (U.S. Dept. of Agriculture) grade or with no grade at all. Which of the following best summarizes the Court's holding in that case?

The law was unconstitutional because North Carolina had to -- and failed -- both to show that the law promoted an important local benefit (since the option of shipping apples with no grades allowed apple shippers to keep consumers ignorant of quality) and to show an absence of non-discriminatory alternatives (since it could have required USDA grades in addition to, rather than in place of, state grades).

In West Lynn Creamery v. Healy, the Supreme Court evaluated the constitutionality -- under the Dormant Commerce Clause -- of a Massachusetts law that imposed an assessment on all fluid milk sold to dealers by Massachusetts retailers in order to raise money necessary to aid for Massachusetts dairy famers. Which of the following best summarizes the Court's holding in that case?

The law was unconstitutional, because although facially neutral, two-thirds of the milk dealers subject to the burdens entailed by the assessment were out-of-state dealers, and the money obtained from burdening them was then shifted exclusively to in-state dairy farmers enhancing their competitive advantage vis-a-vis out of state dairy farmers.

In Horne v. Dept. of Agriculture, the Court considered whether the government engaged in a taking when it issued the Raisin Marketing Order, requiring raisin growers to set aside -- for the government -- a certain portion of the raisins they grow, so that the government can use those to maintain an orderly market. Which of the following best summarizes the Court's holding?

The marketing order *was* a taking because personal property is just as protected as real property and government engages in a taking even ifs coercion may work by barring an owner from market entry as an alternative to physical appropriation.

n Exxon Corp. v. Governor of Maryland, the Supreme Court evaluated the constitutionality -- under the Dormant Commerce Clause -- of a Maryland statute that a producer or refiner of petroleum products could not operate any service station within the state. Which of the following best summarizes the Court's holding in that case?

The statute was constitutional, because it did not discriminate against similarly situated operators of gas stations headquartered outside of Maryland, and, with respect to petroleum suppliers, it simply shifted business from some out-of-state suppliers to others (not from out-of-state business to those in Maryland).

Which of the following best states the Court's current test for when a taking counts as a taking for public use? **

The taking is for public use as long as the legislature makes a reasonable determination that the post-condemnation use (whether the land is transferred to public or private ownership) serves a public purpose, and so long as that public purpose is not simply a pretext for conferring a private benefit on a private party.

Which of the following is Justice Thomas's proposed test (in his Kelo dissent) for when a taking is for public use?

The taking is for public use, and thus permissible, only if -- after taking the property -- the government will own the property, or the public will have a legal right to use the property.

Which of the following best summarizes Justice Scalia's key critique of the Pike Balancing test?

There is no common metric for the Court to compare the putative benefits of a neutral restriction on commerce with the burdens, so it is like asking if a certain line is longer than a particular rock is heavy.

Which of the following best expresses a limit on what may constitute a taking?

There is no taking, no matter what the economic impact of the regulation, if government regulation of property merely abates a common law nuisance

Imagine that Congress passes a law requiring all individuals who sell fertilizer to adopt certain safeguards (specified in federal law) to help assure that such fertilizer is not purchased by terrorists for use in explosives. A particular state objects that these requirements are too onerous for its citizens to comply with. Is Congress's law nonetheless consistent with the 10th Amendment -- and would it be constitutional under the 10th Amendment for the federal government to enforce it?

Yes, because while Congress may not command state governments to take action, it may impose requirements on individuals within states (and federal law will preempt contrary state law).

As you'll learn in Con Law II, the Constitution's equal protection clause bars discrimination that has a "discriminatory purpose." Imagine, however, that Congress invokes its Section 5 power to make it illegal for state employers to engage even in certain **unintentional** forms of discrimination -- that is, to take workplace actions that have **the effect** of producing inequality based on gender or race even if that was not the employer's purpose. May Congress use its Section 5 power in this way -- to forbid action that is not forbidden by the Constitution itself?

Yes. In using its Section 5 power to give force to a constitutional right, such as the right against racial or gender discrimination, Congress may regulate a somewhat broader swath of conduct that that covered by the constitutional right so long as it can show the problem is real and its measure is proportionate to the constitutional violation.

Imagine the state of Oklahoma enacts a law expressly giving certain advantages to certain Oklahoma Oil Companies (and disadvantaging competitors from Texas). Before this law is challenged in court, Congress enacts a federal law permitting Oklahoma to favor its own oil businesses in this way. May Congress do so under the US Constitution?

Yes. The Dormant Commerce Clause prevents states from regulating interstate commerce in their own favor, but Congress may discriminate this way in exercising its federal power over interstate commerce.

Art. I Section 8 Clause 8 gives Congress the power to establish copyright and patent protection -- it allows Congress to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." May Congress establish criminal penalties for copyright violations?

Yes. The Necessary and Proper only requires the government to show that a measure is reasonably adapted to an end Congress is permitted to pursue in exercising its enumerated powers, and the Sup. Court has found Congress may pass laws in exercising these powers, and establish criminal penalties for violating these laws.

only way court will choose an interpretation that overrides state power?

clear congressional intent

conflict preemption

congress has not expressly preempted the state from regulating a subject and while there is a federal law out there, congress has not covered the entire field, it has left some room for state regulation on the same subject (but sates cant use that leeway to make a state law that is incompatible)

rule from morrission

when a removal limit would impede presidents ability to perform his constitutional duty this would undermine sep of powers