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EXCERPT #1 -- From Ch. 9 - Constitutional Law


TENTH AMENDMENT The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Traditionally, the issues of health, safety, welfare, and morality are valid state “police powers.”

FEDERAL PREEMPTION OF STATE LAWS When a state attempts to regulate in a field in which the federal government has already regulated, the federal law is superior under the Supremacy Clause of Article VI. Whenever there is an express conflict, obviously federal law controls. Federal preemption is implied when: 1) the state law would impede achievement of the federal objectives; 2) it would be impossible to comply with both statutes; or 3) the federal regulation is so pervasive that the Court can conclude that Congress intended to occupy the entire the field (aka “field preemption”), e.g. banking regulations. (Note that environmental regulations generally set a floor rather than a ceiling; the state may make laws more stringent.)

DORMANT COMMERCE CLAUSE Also known as the “negative implications of the IC clause,” this doctrine holds that where Congress has not regulated an area of IC, the state may pass regulations which have an effect on IC, provided that the state law does not: 1) discriminate against IC on its face; or 2) unduly burden IC. Note that this doctrine does not apply where Congress has authorized the state action, or where the state is acting as a market participant (i.e. a buyer or seller of goods).

  1. Discrimination Against IC. A state law which purposely favors intra-state commerce over IC (i.e. protectionism of the state’s own businesses) is per se invalid, and will be judged under strict scrutiny, meaning that it must be narrowly tailored to achieve a compelling state interest; for example, in Philadelphia v. New Jersey (1978), the Court held that a state ban on importation of solid waste was invalid because it favored in-state waste disposal companies. By contrast, when there is no other means available to accomplish a legitimate state interest, state regulations which have a discriminatory impact on IC may be a valid exercise of the state’s police powers; for example, in Milk Control Board v. Eisenberg (1939), a state law setting a price floor for milk was held to be a valid regulation of an essentially local problem that had only an incidental effect on IC. Note that when a state law discriminates against IC, it may also violate the Equal Protection Clause and/or the Privileges or Immunities Clause.

  2. Undue Burden on IC. While incidental burdens on IC are not unconstitutional, the Court uses a balancing test to determine the reasonableness of the state law, weighing the burden imposed on IC against the importance of the state interest. Where the state interest prevails, the state must use the least burdensome means available to achieve its interest. For example, in Dean Milk Co. v. City of Madison (1951), a state law requiring local pasteurization of milk was held to be an undue burden on IC, since alternative means such as inspection of imported milk could achieve the state interest in ensuring product safety. By contrast, in Maine v. Taylor (1986) the Court held that a state may ban out-of-state bait fish, since this was the only feasible means of preventing introduction of a particular destructive bacterium, and protection of a state’s natural resources is a legitimate exercise of its police power.


“PRIVILEGES AND IMMUNITIES” CLAUSE Article IV, Section 2 provides that: “the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” This clause prevents discrimination by a state in regard to state-created fundamental rights, such as the right to own property, the right to earn a living, access to state courts, and access to medical care. For example, in Doe v. Bolton (1973), a state requirement of residency within the state to be eligible for an abortion was held to violate this clause. The state may not discriminate against non-residents as to fundamental rights unless there is a substantial reason other than the fact that the person is from out-of-state; by contrast, where the right involved is not “fundamental,” the state may discriminate against non-residents upon any rational basis. Note that by its terms this clause applies only to citizens, not to corporations or aliens. (Note that whenever state discrimination is present, the Equal Protection Clause may also be implicated.)

“PRIVILEGES OR IMMUNITIES” CLAUSE The 14th Amendment provides that: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Under Twining v. New Jersey (1908), this clause applies only to those fundamental rights of national citizenship that “arise out of the relationship of the individual and the national government.” However, under the Slaughterhouse Cases (1873), it does not apply to those rights expressly protected by the first eight Amendments. The fundamental rights of national citizenship protected by this clause include: 1) freedom of association and expression; 2) the right to be a candidate; 3) the right to vote; and, 4) under Saenz v. Roe (1999), the right of interstate travel.

STATE IMMUNITY FROM FEDERAL TAXATION/REGULATION Originally, state governments and state employees were immune from federal taxation, but modernly under Garcia v. San Antonio MTA (1985), the concept of intergovernmental immunity of the states has been abandoned and the federal government may apply a uniform tax or regulation to the operations of state governments, absent a showing of some “extraordinary defect” in the procedural safeguards for the states in the national political process. (In Garcia, the Court upheld the federal minimum wage law as applied to state employees.)

STATE TAXATION OF THE FEDERAL GOVERNMENT Under McCulloch v. Maryland (1819), states cannot directly tax the operation of the federal government, in light of the Supremacy Clause. Whenever a state law interferes with a federal function, it is invalid under federal supremacy. However, uniform state taxes that are incidental to a legitimate state police power may be valid, provided that they are not unduly burdensome on the federal government.

STATE TAXATION OF IC Under Complete Auto Transit, Inc. v. Brady (1977), state taxes on IC are valid provided that: 1) the tax does not discriminate against IC; 2) the activity being taxed has a “substantial nexus” with the taxing state; 3) the tax is “fairly apportioned” between the in-state and out-of-state activities of the entity being taxed; and 4) the tax is “fairly related” to services being provided by the taxing state. (Note that whenever the state is taxing IC, this also implicates the Dormant Commerce Clause, supra.)