Federalism

Congress passed the Fair Labor Standards Act, which regulated the wages, overtime pay, and hours of employees in the United States. A city bus service that was staffed with city employees sued the federal government. The city argued that, under the United States Constitution, Congress was not allowed to regulate the working conditions of state or city employees. May the federal government regulate the working conditions of state or city employees without violating the U.S. Constitution? A. Yes, because Congress may regulate the working conditions of state or city employees under the Commerce Clause. B. Yes, because Congress may regulate the working conditions of state or city employees under the Supremacy Clause. C. No, because regulating state or city employees impedes traditional government functions. D. No, because the act commandeers a state's or a city's power to set the working conditions for its employees.

A. Yes, because Congress may regulate the working conditions of state or city employees under the Commerce Clause. Quimbee -

The State of Serenity enacts a statute that requires potato farmers to remove federal labels on potato bags and replace them with state-approved labels, which involves an additional expense to the farmer. One out-of-state grower, Farmer Johannes, challenges this as an invalid state regulation of interstate commerce. What result?

According to the Supremacy Clause, federal law will control, because the state law here directly conflicts with the federal law. McDermott v. Wisconsin, 228 U.S. 115 (1913). There is a direct conflict here, because one can't comply with both the federal and state regulations. Actual conflict cases are the clearest application of the Supremacy Clause. RELATED ISSUE: Say the state regulation required potato farmers to add a state label without replacing the federal label. Then there would be no direct conflict with federal law, because a farmer could comply with both federal and state requirements. Instead, the conflict would be indirect, and the validity of the state requirement would depend on whether Congress intended to preempt the entire potato-labeling field (and, beyond that, whether it unduly burdened interstate commerce, which it almost certainly wouldn't). NOTE: The area would be subject to federal regulation under the Commerce Clause, and subject to state regulation by virtue of state police powers. Textbook - Supremacy Clause

Wisconsin's state slogan is "America's Dairyland" due to its devotion to producing quality eggs, milk, and cheese. To guarantee the excellence of its cheese, Wisconsin used a highly intricate testing and grading system that exceeded any other framework in the world. When its cheese passed inspection, it was shipped in a crate with a red-emblazoned sticker that said "Wisconsin-Made." California, which trailed only Wisconsin in the yearly production of cheese, sought to make inroads in the market. Lobbyists in the industry successfully convinced the California state legislature to pass a law forbidding any labeling sticker of any kind on the exterior of crates of cheese sold in the state. Wisconsin sold approximately 20 percent of its cheese in California. It wants to contest the removal of its stickers in federal district court. Can it do so successfully?

Although neutral on its face - the law is taking away the competitive advantage, raising costs (repacking), and stifling competition to in state interests by burdening their ability to compete. 16 Nov Class

What's the most common application of the Supremacy Clause?

Commerce Clause problems. Textbook - Supremacy Clause

Section 201 of the The Voting Rights Act of 1965 precludes any jurisdiction from requiring a person to comply with any test or device to register to vote or cast a ballot. Under the law, "test or device" is defined as a literacy test, educational or knowledge requirements, or proof of good moral character. The South Carolina General Assembly passed a law in 2018 that required every voter to read the following statement before voting: "I hereby attest to the fact that I am the person I purport to be in my stated identification and denounce the practice of voter fraud." Failure to do so successfully would disqualify a person from being able to vote. Is the law constitutional? A. No, because it violates the Commerce Clause. B. No, because it violates the Supremacy Clause. C. Yes, because states have plenary power over all of their election rules. D. Yes, because states have a legitimate interest in combatting voter fraud.

B. No, because it violates the Supremacy Clause. This is express pre-emption, and this was essentially a form of a literacy test Class - 16 Nov

Congress passed the Price Control Act, a federal law that authorized suits for up to treble damages for those who sold goods in excess of specific, listed ceiling prices. The act specified that claims could be brought in any court of competent jurisdiction, whether state, federal, or territorial. A man sold a woman a car for $500 more than the vehicle's listed ceiling price. The woman sued the man in state court for a violation of the Price Control Act. The state court refused to enforce the act on the grounds that the federal act was against the state's public policy. Was the state court constitutionally allowed to refuse to enforce the federal act on the grounds that it was against the state's public policy? A. Yes, because the federal government cannot commandeer the state's judicial authority. B. Yes, because a state court may refuse to hear a federal claim if the underlying federal law violates the state's public policy. C. No, because state courts are generally obligated to hear federal claims. D. No, but only because the act specified that the claims could be brought in a state court.

C. No, because state courts are generally obligated to hear federal claims. The Supremacy Clause in the United States Constitution expressly provides that state courts are bound by federal law. The United States Supreme Court has interpreted that language to mean that state courts cannot discriminate against federal claims and must generally hear them absent a valid excuse. An example of a valid excuse would be a state court dismissing a federal claim on forum non conveniens grounds. However, it is not a valid excuse and it does violate the Supremacy Clause for a state court to dismiss a federal claim on the grounds that the underlying federal law is against the state's public policy. Quimbee

Congress enacted the Low-Level Radioactive Waste Policy Amendments Act to help address issues among the states about disposal methods for low-level radioactive waste. The act encouraged states to adopt programs to dispose of their own waste by creating three incentives: a monetary incentive, an access incentive, and a take-title provision. The monetary incentive provided financial incentives for states that open waste sites. Under the access incentive, states without sites could be denied access to other states' sites. The take-title provision required a state to either: (1) adopt federal regulations regarding hazardous waste or (2) upon request of a waste-generator within its borders, to take title to the waste (i.e., take ownership) or else pay damages to the generator for any harm caused by the state's failure to take title. A state sued the federal government, arguing that the act violated the United States Constitution because it forced the states to either adopt federal regulations or else take title to hazardous waste. Is it likely that the take-title provision of the act was constitutional? A. Yes, because the take-title provision is reasonably related to the general health and welfare of all U.S. citizens. B. Yes, because the act addresses interstate commerce and hazardous-waste disposal. C. No, because the act commandeers a state's power to decide what to do with hazardous waste. D. No, because the act unduly incentivizes states to take title to hazardous waste.

C. No, because the act commandeers a state's power to decide what to do with hazardous waste. Under the Tenth Amendment to the U.S. Constitution, any powers not given to the federal government or withheld from the states in the U.S. Constitution are reserved for the states and the people of the United States. This preservation of power for the states includes what is known as the anticommandeering doctrine. Through the Tenth Amendment's anticommandeering doctrine, Congress is barred from commandeering and directing the actions of either a state's legislature or its executive officers. Quimbee

For several years, the state of North Carolina processed recycling generated from companies in both Virginia and Tennessee, both of which bordered North Carolina. The impact of the novel coronavirus, however, hit North Carolina hard, forcing it to make difficult budgeting decisions. It was forced to reallocate some of its space for recycling, lessening its availability. To accommodate the change, the General Assembly enacted a law that precluded the state from accepting any recycling costs from out-of-state companies. The Copeland Institute, housed in Virginia, must now send its recycling elsewhere. Is such a law constitutional? A. Yes, because states have unlimited police power. B. Yes, because of the Tenth Amendment's intent to preserve certain powers to states. C. No, because the law violates the Commerce Clause. D. No, because the law violates the preemption doctrine.

C. No, because the law violates the Commerce Clause. Don't have 2 laws, so we know it's not pre-emption. It's a dormant commerce clause question Commerce Clause - is on its face discriminatory Class 16 Nov

A state citizen worked for the federal government. Upon his retirement, the state citizen began to receive federal retirement benefits. Under state law, state retirement benefits were exempted from state taxes, but federal retirement benefits were not exempt and were subject to state taxes. The citizen sued, arguing that it was unlawful for the state to tax retirement benefits paid to federal employees but not the same benefits paid to state employees. Was it lawful for the state to tax federal-employee retirement benefits but not state-employee retirement benefits? A. Yes, because the state was not taxing the federal government directly. B. Yes, because the doctrine of intergovernmental tax immunity gives the state absolute immunity from federal law for its tax-policy decisions. C. No, because the tax discriminated between state and federal employees. D. No, because states may never tax federal benefits. .

C. No, because the tax discriminated between state and federal employees. Quimbee

The state of Missouri imposed a flat $500 yearly usage fee on all trucks that used its highways to engage in interstate deliveries. The income generated by the fees was used by the state for highway and road maintenance projects throughout the state. Knox, Inc., is a trucking company which is domiciled in the neighboring state of Kansas. Heather, the CEO of the company, filed suit in federal court to contest the law. She presented evidence that approximately 70 percent of her business involved traveling through Missouri, and therefore believed the law violated the Commerce Clause. Is she correct? A. Yes, because the law discriminates against out-of-state entities. B. Yes, because the law violates the preemption doctrine. C. No, because states may always regulate if/when Congress is silent on a particular matter. D. No, because the benefits to the law outweigh any potential burden to interstate commerce.

D. No, because the benefits to the law outweigh any potential burden to interstate commerce. Not discriminating against out of state entities, all trucks pay the fee. So, it's constitutional so long as the benefits outweigh the burdens to interstate commerce. Class 16 Nov

Congress enacted the Handgun Violence Prevention Act. The act was a federal gun-control provision that required the United States attorney general to implement a nationwide background-check system for handgun purchases. While moving towards a national system, in the interim, state and local officials were required to conduct background checks of prospective firearm purchasers. Under the act, firearm sellers would report sales to their county chief law-enforcement officers. The state or local officers would then conduct background checks and confirm the lawfulness of the sales. A state's chief law-enforcement officer sued the federal government, arguing that the act was unconstitutional under the Tenth Amendment of the United States Constitution. Is it likely that the act was unconstitutional? A. No, because the act's reporting requirements were only temporary until a national system was in place. B. No, because handguns pass through interstate commerce. C. Yes, because the law did not compensate the state and local officials for their time. D. Yes, because the act compels state and local officials to administer a federal program.

D. Yes, because the act compels state and local officials to administer a federal program. Under the Tenth Amendment to the U.S. Constitution, any powers not given to the federal government or withheld from the states in the U.S. Constitution are reserved for the states and the people of the United States. This preservation of power for the states includes what is known as the anticommandeering doctrine. Through the Tenth Amendment's anticommandeering doctrine, Congress is barred from commandeering and directing the actions of either a state's legislature or its executive officers. Quimbee

The State of Elliott enacts a statute preventing aliens from owning more than five acres of land in Elliott. E.T., a resident alien, wants to buy ten acres of land in Elliott and challenges the statute on grounds that it violates the interstate Privileges & Immunities Clause. What result?

E.T. loses, because he isn't protected by the interstate Privileges & Immunities Clause (although he would have a valid Equal Protection claim). The interstate Privileges & Immunities Clause only protects out-of-state citizens and residents, not corporations or aliens. Article IV, §2, cl. 1. NOTE: Had E.T. been a U.S. citizen, he would have prevailed, because owning property is a "right fundamental to national unity" and is thus covered by the clause. Textbook - Privileges and Immunities

It's duck season and Elmer Fudd wants to go on a duck hunting vacation in the State of Animation, adjacent to the state in which Fudd lives. When Fudd applies for an Animation duck hunting license, he finds that the license will cost him $400, while an Animation resident could obtain the same license for $20. He challenges the scheme, contending that it violates the interstate Privileges & Immunities Clause. What result?

Fudd will lose. The interstate Privileges & Immunities Clause, Article IV, §2, cl. 1, only prevents discrimination against out-of-state citizens and residents as regards rights fundamental to national unity. Recreational duck hunting is not such a right. Baldwin v. Montana Fish & Game Comm'n, 436 U.S. 371 (1978). RELATED ISSUE: Say Fudd's livelihood consisted of the processing of duck meat into duck loaf, duck dogs, duck jerky and the like, and that Fudd hunted ducks to get his meat supply. Then his duck hunting would probably be such a "fundamental right" (earning your livelihood from your chosen pursuit normally is), in which case it would probably be protected by the interstate Privileges & Immunities Clause. Textbook - Privileges and Immunities

TJ was a commercial fisherman who operated several boats in North Carolina. Terris, who owned and operated her own commercial fishing enterprise in SC, decided to expand her business into North Carolina. TJ told her that the state required him to pay a licensing fee of $50 per boat. But when Terris applied for her license, state officials told her that the fee was $200 per boat. When she asked why, they told her because that was the rate for non- North Carolina residents. Is the law constitutional.

If suing under the privileges and immunities clause, the court will ask "is the law necessary to achieve an important government purpose?" Very difficult for the state to meet the standard. Unconstitutional, because Terris is treated differently as a non-resident than she would be as a resident

What does the Supremacy Clause do?

It provides that any state or local law conflicting with a valid federal law must be struck down. NOTE: The Supremacy Clause does not provide a source of power for the federal government! Textbook - Supremacy Clause

The State of Kangaroo restricts the right to practice law in the State to Kangaroo residents. Les Judicata, a non-resident, has passed the Kangaroo bar. He challenges the restriction as a violation of the interstate Privileges & Immunities Clause. The State claims the restriction is valid because lawyers are officers of the court who exercise state power, and making Kangaroo accept non-resident lawyers would threaten its sovereignty. In addition, the State argues, non-resident lawyers would be less competent due to their lesser familiarity with local rules and customs. What result?

Les will prevail. The interstate Privileges & Immunities Clause, Article IV, §2, cl. 1, generally prevents states from discriminating against out-of-state citizens and residents with regard to rights fundamental to national unity. Pursuing one's livelihood is considered such a fundamental right. Lawyers aren't considered to exercise actual governmental power, so the sovereignty argument doesn't help the State; as to lawyer competence, this is a substantial state concern, but it could be accomplished by less restrictive means (e.g., a licensing exam). As a result, the restriction is invalid. Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). Textbook - Privileges and Immunities

The State of Warner is one of the few with a population of the rare yellow-bellied sapsucker. A state statute forbids hunting and trapping yellow-bellied sapsuckers and authorizes game wardens to seize and destroy any traps they find. A federal consumer safety regulation regulates the design of such traps to prevent them from pinching the fingers of people who set the traps. Does the federal regulation preempt the state statute?

No, because the regulations have different purposes, a fact that indicates that the two regulations can co-exist. When federal and state laws conflict, the federal law takes precedence under the Supremacy Clause. If there's no direct conflict, the state law is only preempted if the federal law was intended to preempt the entire field. Here, there's no conflict at all. Instead, the laws have two very different purposes—the federal law was designed to make the traps safe, and the state law was intended to protect the animals. The state law does not impede operation of the federal law, and there's no indication the federal law was intended to preempt the entire field of yellow-bellied sapsucker traps. As a result, the state law will stand. NOTE: If the objectives behind the two regulations were incompatible, the state regulation would fail, even if the state and federal regulations didn't conflict on their face. Textbook - Preemption Doctrines

The State of South Dakota operates its own cement plant. The state has a policy of favoring local buyers of cement over out-of-state buyers during periods of cement shortages. Under this policy, the state refused to sell cement to Reeves, Inc., a Wyoming corporation, on the ground that Reeves was an out-of-state entity. Can Reeves challenge South Dakota's policy under the Article IV Privileges and Immunities Clause?

No. As a corporation, Reeves is not protected by the clause. Although South Dakota is discriminating against out-of-staters with respect to the fundamental right to do business (i.e., buy cement) in the state, Reeves lacks standing to invoke the Privileges and Immunities Clause since it would be invoking the constitutional rights of third parties rather than its own rights

Congress passed legislation imposing limited sanctions on the foreign Nation of Apathy to encourage it to act more democratically. The U.S. State of Indignation is critical of the numerous human rights violations committed by Apathy. State of Indignation therefore passes legislation prohibiting the state and its agencies from buying goods or services from companies that do business with Apathy. Is the state law valid?

No. Even though Congress and the State of Indignation have similar goals, Congress' action preempts the state from passing sanctions. In the area of foreign policy, the Court is likely to find state action preempted by Congress, even where, as here, Congress did not expressly preempt the state legislation and the state and federal goals are consistent. The Court unanimously found preemption on similar facts in Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000). Textbook - Preemption Doctrines

The State of Sillycon enacts a statute regulating the marketing of high-tech instrumentation. Subsequently, Congress enacts a similar regulation wherein Congress provides that it intends the regulation to cover the whole field of high-tech instrumentation. Will the non-conflicting state law still be valid?

No. If Congress provides for regulation intended to cover the whole area in question, and the area is one in which both Congress and the states have power to regulate (e.g., commerce, with federal power coming from the Commerce Clause and state power from police powers), then the federal law supersedes the state law, regardless of whether the state law directly conflicts with the federal law. Textbook - Supremacy Clause

State of Justice passes the Holocaust Victim Insurance Relief Act, which requires any European insurance company doing business in state to disclose whether it issued insurance policies during the Holocaust. If the European insurance companies fail to comply with the law, they will lose their licenses to do business in the State of Justice. There is no federal statute on this topic. Is the Holocaust Act valid?

No. In a 5-4 decision, the Court ruled that a similar state statute interfered with the President's ability to negotiate executive agreements in this area of foreign policy and therefore was preempted. Even though the President had chosen not to pursue a policy in this area, the state was not allowed to enact a contrary policy because any such policy would interfere with the President's choices. American Insurance Ass'n v. Garamendi, 539 U.S. 396 (2003). Textbook - Preemption Doctrines

State of Warden is concerned that there are too many frivolous lawsuits by prisoners against state prison officials that are clogging the courts. In response to this problem, Warden sets up a special state Court of Claims that will hear civil rights cases against prison officials only. The Court of Claims is a court of limited jurisdiction where prisoners will not be allowed punitive damages or attorneys' fees. Cases against prison officials brought under the federal civil rights statutes will be heard exclusively in the Court of Claims. Is the State Court of Claims constitutional?

No. In a 5-4 vote in Haywood v. Drown, 129 S. Ct. 2108 (2009), Justice Stevens wrote that a similar court system violates the Supremacy Clause, Article VI, cl. 2, because the state's policy is "contrary to Congress' judgment that all persons who violate federal rights while acting under color of state law shall be held liable for damages . . . a State may not . . . relieve congestion in its courts by declaring a whole category of federal claims to be frivolous." Textbook - Supremacy Clause

Congress passed the Clean Water Act (CWA) to protect "the navigable waters of the United States, adjoining shorelines and other natural resources of the United States" against harm from environmental accidents. To protect those waters and resources, the CWA assigns a monetary penalty not to exceed $10,000 per day against any person or corporation that is responsible for an oil spill onto the waters of the United States. Big Oil Company negligently spilled oil into the water surrounding the State of Salmon. The fishermen of the State of Salmon, whose jobs were affected by the spill, and their fellow citizens, whose health was affected by the spill, sue Big Oil for their economic loss and personal injury. Are their lawsuits preempted by the Act?

No. In the real case about the Alaska oil spill, the Court ruled that Congress had not expressed any intent to occupy the field in the Clean Water Act. Nor was there any reason for the Court to conclude that Congress would have any interest in preempting state tort law, which compensates injuries to persons, in an act whose goal was to protect natural resources. Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008). Textbook - Preemption Doctrines

Suzi Queezi was feeling nauseous when she arrived at the hospital, where her physician, Doctor Donna, prescribed Tummis to take care of the problem. Tummis can be taken orally or administered directly into the vein by the IV-push method. Doctor Donna opted for the latter approach even though it is more dangerous than giving Tummis orally. Doctor Donna mistakenly put the IV-push into an artery instead of a vein. Queezi contracted severe blood poisoning and lost her leg. Queezi sued in state court on a state tort law claim that Tummis should have been labeled to warn doctors that the IV-push method is dangerous. Tummis' label was approved by the Food and Drug Administration (FDA), which is authorized to "make drug labeling decisions that strike a balance between competing objectives." Is Queezi's lawsuit preempted?

No. On similar facts, the Court ruled against preemption in Wyeth v. Levine, 129 S. Ct. 1187 (2009). First, the Court concluded there was no express preemption as in the Riegel case on the prior card. The Court then ruled that there is a presumption against implied preemption in order to protect the states' police powers. The presumption held in Wyeth because Congress knows how to write an express preemption statute and failed to do so in the labeling context. Textbook - Preemption Doctrines

Does the Supremacy Clause state that the Supreme Court is supreme over the other branches in interpreting the Constitution?

No. The Supremacy Clause states that the Constitution and Laws of the United States are supreme over state laws. NOTE: In Cooper v. Aaron, 358 U.S. 1 (1958), the Court stated "the federal judiciary is supreme in the exposition of the law of the Constitution." Textbook - Supremacy Clause

Congress used its commerce clause power to pass a law that limited the speed limit on our nation's highways to 70 MPH. Two months later, the Idaho General Assembly passed a law that said the maximum speed on the interstate highways in its state was 80 MPH. Is the Idaho law constitutional?

No. The federal law didn't specifically say anything about being the sole standard, but implied pre-emption doctrine applies. This is conflict pre-emption. Conflict pre-emption comes about when it is impossible for people to obey both laws at the same time.

The City of Durham saw its unemployment levels spike due to complications from the novel coronavirus. The City Council passed an ordinance that mandated that 75% of employees on construction jobs for the city government be residents of Durham. Chanon, a resident of Chapel Hill, was disqualified from working on a downtown project due to the ordinance. Is the ordinance constitutional?

No. The reason is that Chanon is being precluded from making a living. Can be used whether it's a local ordinance or state law.

Driving without a valid driver's license is a misdemeanor in the state of Montana. Lester, a resident of Montana, delivers mail on a rural route for the United States Postal Service, an instrumentality of the federal government. He does not have a valid driver's license. If Lester continues to drive his mail truck as part of his postal service duties, may he be punished by the state for driving without a license?

No. The state may not require Lester to obtain a driver's license as a prerequisite to driving for the United States Postal Service. To conclude otherwise would be to accept the authority of a state to regulate the employment practices of a federal instrumentality. In precisely such a case, the Court explained, "the immunity of the instruments of the United States from state control in the performance of their duties extends to a requirement that they desist from performance until they satisfy a state officer upon examination that they are competent for a necessary part of them. . . . " Johnson v. Maryland, 254 U.S. 51, 57 (1920) (state may not convict postal worker for driving without a license in the course of his employment); see also Leslie Miller, Inc. v. Arkansas, 352 U.S. 187 (1956) (contractor working for federal government immune from state licensing requirement). Textbook - Supremacy Clause

The Food and Drug Administration establishes standards for the collection of blood plasma. Transylvania County in the State of Silvercross has an ordinance that imposes additional regulations on collecting blood plasma. Dracula Enterprises, a company that collects blood plasma, claims the federal standard preempts the county standard. Does it?

No; the state statute is valid. The issue here is whether the federal standard preempts the field of blood plasma collection, as there's no direct conflict between the two statutes. If a subject area is one that has traditionally been subject to mainly local rather than national regulation, preemption is unlikely. Here, the field is one historically left to the states—health and safety regulation. Thus, a court would be unlikely to find preemption (absent a clear expression from Congress that it intended to preempt the entire area). Hillsborough County, Fla. v. Automated Medical Labs, 471 U.S. 707 (1985). RELATED ISSUE: The converse is also true; a federal statute in an area of historically national control (e.g., patents, trademarks, immigration, bankruptcy) will generally preempt a related state statute. Textbook - Preemption Doctrines

The State of Corinthia is building a new state capitol building. A state statute requires that 50% of the workforce on any state-funded construction project must consist of state residents. The ordinance was enacted in response to a study that showed that many state construction workers were unemployed and forced to emigrate on this basis. The ordinance is challenged on Article IV Privileges & Immunities grounds by some out-of-state construction workers denied jobs on the capitol project. The state claims that the interstate Privileges & Immunities Clause doesn't apply to the government as a market participant. Is the government's argument correct?

No—but it may still win the case. The interstate Privileges & Immunities Clause prevents states from discriminating against out-of-state citizens and residents as regards "rights fundamental to national unity." There is no exception for the state as a "market participant." However, the state may still prevail if it proves that protecting jobs is a substantial state purpose and that the statute is a reasonable means of attaining this goal. United Building and Constr. Trades Council v. Camden, 465 U.S. 208 (1984). RELATED ISSUE: Say, instead, that the high unemployment rate in Corinthia was not due to a lack of job opportunities, but rather due to the fact that the workforce lacked job skills and education and was by and large too far away from the job opportunities that did exist in Corinthia. Because the state's preferential hiring would not remedy the problem but would still adversely impact non-residents, it would violate the interstate Privileges & Immunities Clause. Hicklin v. Orbeck, 437 U.S. 518 (1978). NOTE: There is a "market participant" exception for states under the Commerce Clause. The rationale for the distinction is that the Commerce Clause only addresses regulation, and when the state itself is a market participant (it's buying or selling), it isn't "regulating." By contrast, the interstate Privileges & Immunities Clause bars all discriminatory state conduct, whether regulatory or not, if it unfairly restricts essential activities and basic rights of out-of-staters.

The dwindling number of smokers impacted the tobacco farmers of North Carolina considerably, forcing them to diversify their crops. Because agricultural observers believed the peach market held much potential in the state, the North Carolina General Assembly decided to take action. The state operated a number of buildings throughout the state, many of which had canteens and cafeterias where people could eat. The General Assembly passed a law that said the state would only purchase peaches to be sold in state-owned facilities from North Carolina farmers. Annie, a farmer from South Carolina, lost 20 percent of her yearly revenue because she could no longer sell her peaches in North Carolina state facilities. Annie believes the law violates the commerce clause. Is she correct?

Permissible under the Market Participant Doctrine - state is participating in the market like any other buyer/seller

State X law requires that all state X candidates for the United States House of Representatives must reside in the congressional district they seek to represent in Congress at the time they are elected. Is this law constitutional?

Probably not. According to the Court's decision in U.S. Term Limits, Inc. v. Thornton, supra, Art. I, § 2, cl. 2 of the Constitution establishes the exclusive qualifications for membership in the House of Representatives: "No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen." Since Art. I, § 2, cl. 2 does not mention a district residency requirement, a state may not impose one. Textbook - Supremacy Clause

The State of Medusa requires that hairdressers must be licensed to practice their craft in the state. To get a license, one must graduate from an in-state hairdressing academy. Does this requirement violate the Privileges & Immunities Clause?

Probably. The interstate Privileges & Immunities Clause, Article IV, §2, cl. 1, generally prevents states from discriminating against out-of-state citizens and residents with regard to rights fundamental to national unity. Pursuing one's livelihood is considered such a fundamental right. A hairdresser's license should qualify as affecting a right to pursue one's livelihood. Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). NOTE: A license for recreational duck hunting is not such a right. Baldwin v. Montana Fish & Game Comm'n, 436 U.S. 371 (1978). Textbook - Privileges and Immunities

A state law directly contravenes a statute enacted by Congress. What clause in the Constitution would provide the answer for which of the two will remain valid?

The Supremacy Clause of Article VI. That clause states that: "This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land." In such cases, the state law is preempted by the federal law. Textbook - Supremacy Clause

Employees of the United States Forest Service (USFS) are required to live in houses owned by the USFS and located within national forests. The housing is considered a part of the employees' compensation and the government deducts a specified amount from the each employee's salary as "rent" for the housing. The county of Fresno, consistent with the principles of federal tax immunity, does not impose its general property tax on national forest land within the county since the legal incidence of such a tax would fall on the United States itself as the property owner. However, the county does impose an annual use tax on possessory interests in tax-exempt land, including the possessory interests of the USFS employees. Does the use tax as applied to USFS employees violate the principle of federal immunity from state taxation?

While a state or a subdivision of a state may not impose a tax on the property of the federal government, it may impose a use tax on private persons who are granted the possession or use of that property. This is so because unlike a property tax imposed on federally owned property, the legal incidence of the use tax falls on the person using the property rather than on the federal government. In the immediate case, the legal incidence of the use tax falls on the USFS employees. The principle of federal immunity, therefore, is not violated. Textbook - Supremacy Clause

Tired of competing with Japanese car companies, car makers in Detroit persuade the State of Michigan to declare war on Japan. The state militia loads Lincoln Continentals into portable rocket launchers and aims them at Tokyo. The federal government has not declared war on Japan and has no intention of doing so. Is Michigan's declaration of war "preempted"?

Yes, because states have no power to declare war. Preemption is an issue whenever the federal government and a state regulate the same matter, or a state regulates something it has no authority to regulate. When the Constitution prohibits state action in an area, any state regulation in that field is void. Such areas include coining money, foreign affairs, and—as here—declaring war. Because Michigan is constitutionally barred from declaring war, its doing so is preempted. Textbook - Preemption Doctrines

The Federal Motor Vehicle Safety Act provides, in part, that car companies may use seat belts to meet federal occupant crash protection standards. Furthermore, the Act provides that "no state shall have any authority to establish, or to continue in effect, any motor vehicle safety standard that is not identical to the federal standard" applicable to the same aspect of vehicle performance. Quasimodo is disfigured in a car accident. He brings a product liability suit in state court against Field Marshal Motors, the manufacturer of his car, alleging a design defect in that his car lacked air bags. Under state common law the lack of air bags could constitute a design defect. Does the federal law preempt the state law?

Yes, because the federal law expressly covers the entire area of crash protection. Here, the state common law would require safety measures in addition to the federal requirements. The federal law is satisfied by seat belts; the state common law might require air bags. While there's no direct conflict, the state law will nonetheless be invalid if Congress intended to preempt the entire field. That's the case here, because the federal law expressly requires that state law mirror the federal standard applicable to the same aspect of vehicle performance. As a result, the federal law will preempt the state law. Cox v. Baltimore County, 646 F. Supp. 761 (D. Md. 1986); Wood v. General Motors, 865 F.2d 395 (1st Cir. 1988); Taylor v. General Motors, 875 F.2d 816 (11th Cir. 1989). Textbook - Preemption Doctrines

Dedra Shanklin's husband was killed when a train operated by Norfolk Southern collided with his truck at a railroad crossing. At the time of the accident, the crossing was equipped with advance warning X-shaped signs that read, "RAILROAD CROSSING." The signs had been installed pursuant to a federal program under which the federal government provided funds to the state for their purchase and installation. To receive these funds, the state was required to demonstrate that the warning devices to be installed at each railway crossing within the state met federal railway-crossing warning standards promulgated by the secretary of transportation. Ms. Shanklin brought a wrongful death action against Norfolk Southern claiming that it had negligently failed to maintain adequate warning devices at the crossing. The railroad contends that Shanklin's suit is preempted by the Federal Railroad Safety Act, which provides, "Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement." Is the railroad correct?

Yes, this would appear to be a case of express field preemption. Although the Federal Railroad Safety Act grants states the option of adopting railroad safety regulations in the absence of controlling federal law, that option expires once the secretary of transportation prescribes regulations covering the subject matter. Here, the secretary has promulgated regulations setting standards for warning devices at railroad crossings, at least when those warning devices are installed pursuant to a federally funded program, as was the case here. Since plaintiff's negligence claim regarding the adequacy of the warning devices arises out of the same subject matter as is addressed by the federal regulations, her claim is preempted. This is essentially the reasoning the Court adopted under similar facts in Norfolk Southern Railway Co. v. Shanklin, 529 U.S. 344 (2000). Since we are dealing with express field preemption, it does not matter that the state's tort law may actually advance the federal interest in safety at highway crossings. Compare Sprietsma v. Mercury Marine, 537 U.S. 51 (2002) (construing a federal statute that expressly preempts a state "law or regulation" as not preempting state common law actions). Textbook - Preemption Doctrines

Congress used its commerce clause power to pass a law that limited the speed limit on our nation's highways to 70 MPH. Two months later, the Idaho General Assembly passed a law that said the maximum speed on the interstate highways in its state was 65 MPH. Is the Idaho law constitutional?

Yes. Not a conflict (unless states expressly prohibits) states could enact stricter standards than the federal law. See this a lot with environmental law, stricter standards than federal law

Art Beats suffered a heart attack while running a marathon. At the hospital a balloon catheter, which is a medical device manufactured by Medtrials, Inc., was inserted into Art's heart by a surgeon. Later the balloon catheter popped and Art died. His family sued in state court under state tort law arguing that the balloon was defectively designed and labeled. The federal Medical Devices Act (MDA) provides that once a medical device receives premarket approval from the Food and Drug Administration (FDA), "no state or local government may impose any requirement that either relates to the safety or effectiveness of the device, or that is different from, or in addition to, any FDA requirement applicable to the device." Medtrials' balloon catheter received premarket approval from the FDA. Is Art's lawsuit preempted?

Yes. The Court ruled 8-1 in Riegel v. Medtronic, 128 S. Ct. 999 (2008), that a similar lawsuit was expressly preempted by the MDA. NOTE: Express preemption is present when the law specifically or expressly says that state or local law is preempted. Contrast express with implied preemption, where Congress' action suggests preemption. The two main types of implied preemption are field preemption and conflicts preemption. Textbook - Preemption Doctrines

The Zandra Company, a privately owned enterprise, has a contract with the federal government under which Zandra manages federally owned atomic laboratories in New Mexico. As part of its management duties, Zandra purchases goods from vendors for use in the laboratories. The purchases are made in Zandra's name, without prior approval by the federal government. Nor is the vendor notified that the purchases are for the federal government or that Zandra is a purchasing agent for the federal government; indeed, the federal government denies that Zandra is its purchasing agent. Although Zandra is liable to the vendor for the purchase price of the goods, title to the goods passes directly to the federal government. The latter reimburses Zandra for the cost of the goods, including any sales taxes. The state of New Mexico imposes a sales tax on all goods sold within the state. The legal incidence of the tax falls on the purchaser. May this tax be imposed on sales to Zandra of goods to be used at the federal laboratory?

Yes. The legal incidence of this nondiscriminatory tax does not fall on the federal government, but rather on Zandra as the purchaser. The fact that the economic burden of the taxes will be passed on to the United States is of no relevance. Since the legal incidence of the tax does not technically fall on the United States, the tax will be subject to federal immunity only if it can be said that Zandra and the federal government are so closely tied that they cannot realistically be viewed as separate entities. Given the independence under which Zandra operates, a court is likely to conclude that Zandra and the federal government are separate entities. Textbook - Supremacy Clause

The North Carolina Department of Agriculture issued a regulation banning the use of state grades on closed containers of apples sold in the state. The regulation specified that the only grade that could be used was the grade approved by the United States Department of Agriculture. Apple growers in Washington objected to this regulation, noting that they had spent a considerable amount of money developing a grading system acknowledged by those in the industry as being superior to the federal grading system. North Carolina, which also produces apples for sale, has no state grading system. In their lawsuit, the Washington apple growers allege the regulation was motivated by a discriminatory purpose. Which of the following would not be helpful in demonstrating discriminatory purpose? a. A preamble to the legislation reciting that the purpose of the bill was to ensure consumers were not confused by a proliferation of grading systems. b. A letter from a member of the North Carolina apple growers' association to the state agriculture commissioner complaining of competition from out-of-state apples, specifically mentioning Washington, and asking for "help." c. The fact that the law does not impact North Carolina apples because the state has no state grading system. d. The regulation was issued as an "emergency" regulation without the usual notice-and-comment period required by the state's administrative procedure act.

a. A preamble to the legislation reciting that the purpose of the bill was to ensure consumers were not confused by a proliferation of grading systems. Textbook - Dormant Commerce Clause

Arizona passed a controversial immigration bill. One of its provisions, section 5(C), made it illegal for an illegal immigrant to apply for work, solicit work in a public place, or perform work as an employee or an independent contractor. Federal law had no comparable federal penalties, owing to Congress's decision not to impose criminal penalties on those—even those in the country illegally—who were looking for work. Which of the following statements is true? a. The state law is an obstacle to congressional aims. b. Federal law occupies the field, leaving no room for supplemental state regulation. c. One could not comply with both state and federal law. d. The state law is valid.

a. The state law is an obstacle to congressional aims. Textbook - Preemption Doctrines

Alabama passed a statute mandating that all printing contracts paid for by state money be bid competitively. A year later, the act is amended; the amendment creates an exception to the prior year's act. If an in-state printing company's bid is within 20 percent of the lowest bidder's bid, and the low bidder is an out-of-state company, the Alabama printer is automatically awarded the contract, despite not being the low bidder. When the University of Alabama's yearbook printing contract comes up for a bid, LaGrange Printing Co., a Georgia company, is the lowest bidder. However, Phenix City Printing, an Alabama company, enters a bid that is only 18 percent higher than LaGrange Printing Co., thus winning the contract. LaGrange Printing sues, alleging that the Alabama law violates the DCCD. What should a reviewing trial court do? a. Uphold the law, because Alabama is not acting as a market regulator. b. Strike down the law, unless Alabama can demonstrate a nonprotectionist governmental interest and the lack of less discriminatory means to achieve its interest. c. Strike down the law, because Alabama's statute imposes an impermissible downstream regulation. d. Uphold the law, because conditions imposed on a government contract are insulated from DCCD review.

a. Uphold the law, because Alabama is not acting as a market regulator. Textbook - Dormant Commerce Clause

Delighted with the success of the Oneida-Herkimer Solid Waste Authority, Herkimer County decides to create a number of county-owned hamburger stands called "Herki-burger Hamburger Heaven." To ensure their success, the county then requires that all hamburgers be purchased at these county-owned stands. No other hamburger restaurants are permitted in Herkimer County. An out-of-state owner of a competing private hamburger franchise wishes to challenge the ordinance. Which of the following would be the strongest argument against the constitutionality of the hamburger stand? a. The ordinance is facially discriminatory. b. Herkimer County is not engaged in a traditional governmental function. c. Herkimer County is not a market participant. d. The ordinance affects in-state and out-of-state hamburger stands equally.

b. Herkimer County is not engaged in a traditional governmental function. Textbook - Dormant Commerce Clause

Alabama is home to an environmentally friendly manufacturer of paper products. To encourage environmentally responsible packaging and to promote the consumption of alternatives to environmentally harmful materials, Alabama prohibits the importation of all out-of-state paper products. Assume that Alabama's stated purpose, to preserve the environment, is sincere. Alabama's regulation is likely a. Unconstitutional, because Alabama does not have a legitimate interest in environmental protection. b. Unconstitutional, because Alabama could limit the use of all paper products in the state. c. Constitutional, because the law was not passed to enrich in-state paper producers. d. Constitutional, because there is no federal law with which Alabama's law conflicts.

b. Unconstitutional, because Alabama could limit the use of all paper products in the state. Textbook - Dormant Commerce Clause

Texas requires car dealers to be licensed by the state. Under the state licensing statute, "automobile manufacturers" are not eligible to become licensed car dealers in the state. Texas has no automobile manufacturers located in the state. Car manufacturers located in Michigan have begun to experiment with selling certified used cars over the Internet. Under this sales model, leased automobiles that have been turned back in, fleet cars, and other quality, low-mileage cars are put through a series of factory-approved checks and then resold as used, but with extended warranties. Customers could shop online, then have a car they selected delivered to a local dealer in their area. The dealer would be paid a fee by the manufacturer for service and handling, but the customer would otherwise not have to visit the local dealership until the car was delivered, because financing, too, would be handled online. Texas law, though, prohibits such sales from being made to Texas residents because the manufacturers do not—and cannot—possess a car dealer's license. Car manufacturers sue, alleging that the law has discriminatory effects. Which of the following would be the strongest argument in support of their claim? a. That Texas has no automobile manufacturers located in the state. b. That the effects of the statute fall solely on out-of-state manufacturers. c. That the effect of the law would be to increase market share in used cars for in-state used car dealers. d. That it reduces competition among used car dealers in Texas, resulting in higher prices for consumers.

c. That the effect of the law would be to increase market share in used cars for in-state used car dealers. Textbook - Dormant Commerce Clause

The State of Montana has passed a law requiring all persons who offer themselves as hunting guides for hire to be licensed by the state. According to the statute, licensed guides must be Montana residents. The justification for this is that only those residing in the state will be sufficiently familiar with the terrain to guide safely. Residency, the state further claims, ensures familiarity with Montana's game laws and can aid the state in preventing unlicensed hunting, the exceeding of bag limits, and the preservation of native game stocks. An out-of-state hunter who used to guide in Montana sues, claiming that Montana's law violates the Privileges and Immunities Clause of Article IV. A reviewing court should hold the law: a. Constitutional, because hunting is not a fundamental right. b. Constitutional, because out-of-state guides constitute a "peculiar source of evil." c. Unconstitutional, because the law deprives out-of-state guides of the ability to pursue employment on terms equal with Montana residents without substantial reasons for the discrimination. d. Unconstitutional, unless Montana can demonstrate that it is pursuing a legitimate, nonprotectionist interest and that there are no less discriminatory means for pursuing its interest.

c. Unconstitutional, because the law deprives out-of-state guides of the ability to pursue employment on terms equal with Montana residents without substantial reasons for the discrimination. Textbook - Privileges and Immunities

During the late 1990s, a number of states and municipalities passed laws and ordinances aimed at putting economic pressure on certain rogue regimes around the world. In many cases, Congress, too, had imposed sanctions on these same countries. In 1998 both Congress and the State of Massachusetts passed laws relating to the country of Burma. Congress authorized the President to take certain actions to ensure a peaceful transition to democracy in Burma, but it stopped short of prohibiting U.S. companies from doing business in the country or with that country's military government. The U.S. law was otherwise silent on the extent to which states could impose sanctions as well. Massachusetts, on the other hand, barred companies that did business in that country from bidding on contracts with state or local governments. The Supreme Court struck down the Massachusetts law. Based on what you read above, what would you guess was the basis for its conclusion? a. Massachusetts had violated the DCCD by discriminating against foreign commerce. b. Congress had expressly preempted Massachusetts's law. c. It was impossible for companies subject to federal and state law to comply. d. Massachusetts's law posed an obstacle to Congress's legislative aims.

d. Massachusetts's law posed an obstacle to Congress's legislative aims. Textbook - Preemption Doctrines

Concerned about the health risks associated with smoking, and the attendant costs to the state providing care to smokers, Connecticut has taken the extraordinary step of prohibiting the sale of all tobacco products in the state. Connecticut has a tiny cigar industry, but otherwise produces no tobacco products. Out-of-state tobacco companies sue, claiming the law violates the DCCD. They note that, as a result of the law, they potentially stand to lose "millions" of dollars in revenue each year from tobacco sales. The state argues that it spends $1.2 million per year on "tobacco-caused" health care. Other costs include losses in productivity and absenteeism caused by smoking and smoking-related illnesses, which the state estimates at $1.5 million per year. What should a reviewing court do? a. Invalidate the law, because the burden on interstate commerce exceeds the putative local benefits. b. Sustain the law, because it is facially neutral. c. Invalidate the law, because it discriminates against interstate commerce. d. Sustain the law, because the burden on interstate commerce does not clearly exceed the benefits to the state.

d. Sustain the law, because the burden on interstate commerce does not clearly exceed the benefits to the state. Unlike the laws in the preceding questions, Connecticut's law does not differentiate between in-state and out-of-state tobacco. Sales of all tobacco products are prohibited. Textbook - Dormant Commerce Clause

As more states authorize law-abiding citizens to obtain licenses to carry concealed handguns as a matter of right if they satisfy the statutory criteria, newspapers and other organizations have expressed interest in obtaining and publishing the names and addresses of those who have obtained concealed-carry permits. Permit holders and gun rights groups object, claiming that this violates the privacy of permit holders and could make them targets for burglary by those wishing to steal their guns. Others object to being solicited by insurance agencies and gun safety organizations, which buy lists of permit holders and contact them in hopes of drumming up business. In response to permit holders' complaints, Congress passes a statute prohibiting any "person"—defined to include state and local governments as well as private businesses—from buying or selling in interstate commerce the identities of concealed-carry permit holders. The State of Ames, which had been supplementing its budget selling the lists of those holders to private businesses, sues claiming that the statute is unconstitutional. What should a reviewing court do? a. Invalidate the law, because the federal statute impermissibly commandeers state officials who must comply with it. b. Invalidate the law, because it exceeds Congress's power under the Commerce Clause. c. Invalidate the law because it violates the Tenth Amendment. d. Uphold the law under the Supremacy Clause.

d. Uphold the law under the Supremacy Clause. Textbook - Supremacy Clause

State biologists in Maine have learned that parasites have been diminishing fish stocks in other states. To preserve its native fish population, which has so far avoided contamination, the legislature passes a law banning the importation of baitfish into the state from other states. Biologists testify that the ban is the only way to ensure that the parasites won't infect native fish stocks, because there is no efficient way to test incoming baitfish for the parasite. Out-of-state baitfish suppliers sue, claiming the Maine law violates the DCCD. A reviewing court should a. Invalidate the law, because it is facially discriminatory. b. Invalidate the law, because it is motivated by simple economic protectionism. c. Uphold the law as a valid exercise of Maine's police power. d. Uphold the law, because there is no other effective means for the state to protect its wildlife.

d. Uphold the law, because there is no other effective means for the state to protect its wildlife. Textbook - Dormant Commerce Clause