Con Law - Federal System

• const operates on states as a limit
• const expressly forbids states from taking certain acts, eg coining money
• const also prohibits states from exercising power which is inherently federal, eg the conduct of foreign relations
• states have no power to deal w/ immigration, establish requirements for federal citizenship, declare war, or conduct foreign policy

• Federal law preempts or prevails over any inconsistent state law
• Express preemption: if Congress says that fed law displaces, or ousts state law in an area, then state law in that area is preempted, period
• Implied preemption: even if Congress doesn't specifically state, state law will be preempted if state law is inconsistent with fed law (where it is possible to comply w/ both or Congress occupies the field)

• States may not discriminate against out of state citizens w/ respsect to commercail activities or the enjoyment of civil liberties
• may require in-state resdience for own employees, may charge out-of-staters more for hunting licenses or tuition benefits, and may prefer their own citizens in giving state benefits, like welfare, or subsidies

• analyzing validity of a state or local law regulating commerce
• 1. Federal law in the picture? A valid federal law preempts inconsistent state law, or it may authorize any state law.
• 2. If there is no federal law mentioned in the facts of the question, ask whether the state law discriminates against interstate commerce. Such a law is invalid, unless the state is pursuing legitimate health and safety objectives and has no alternative means, or unless the state is granting subsidies or acting as a market participant
• 3. If the state law is non-discriminatory, determine whether it is unreasonably burdensome, that is, imposes a disproportionately heavy cost on the free flow of interstate goods

where Congress has not acted (involves only the validity of a state law; no issue of preemption) state law may still be invalid if it discriminates against or unreasonably burdens interstate commerce

• strongest argument
• discriminates against interstate commerce
• 1. Laws that discriminate for the purpose of favoring in-state commerce - per se invalide. Exs: state law imposing higher taxes on out-of-state goods, state law prohibiting sale of out-of-state milk at a lower price than in-state milk. But laws that favor a govt entity performing traditional activities (trash collection) while treating private companies equally unfavorably are not discriminatory.
• 2. Laws that discriminate for the purpose of promoting health or safet. These types of laws are invalid, unless the state shows that it had no reasonable, non-discriminatory means to achieve its police power objective. Exs - state law banning all out of state garbage from being dumped in in-state landfils (didn't consider alternatives); state law banning the sale of milk, unless it was processed and bottled locally invalid.

• even if non-discriminatory
• blancing test
• court weight the acutal effects of the law on the free flow of commerce against the state's interests served by the law
• most such laws will be upheld
• laws that produce marginal benefits and which materially obstruct the movement of goods across state lines will be invalidated

• state may not discriminate against or excessively burden interstate commerce, a state is wholly free to do these things if Congress gives it permission
• Congress may speak and permit state actions

• market participant: whenever a state is acting, not as a regulator, but as a buyer or seller of commodities or servies, the negative commerce clause does NOT apply to its actions, and the state may discriminate or burden interstate commerce
• govt subsidies: state does not violate the negative commerce clause if it prefers its own citizens or companies w/ subsidies

• gives the states the power to regulate the possession, sale, and transportation of intoxicating liquors w/in their borders
• states have more power to burden or regulate liquor than other articles of commerce
• but not authority for states to discriminate against out of state liquor

• a form of state regulation, so discriminatory taxation is invalid and non-discriminatory taxation, if not unreasonably burdensom, will be upheld AND Congress can preempt or authorize almost any state taxing law
• To be valid, a tax on interstate commerce must meet 3 requirements:
• 1. non-discriminatory;
• 2. the activity, person, or thing taxed must have a substantial nexus to the taxing state. There must be an actual presence in the state. (sales taxes apply only in state of sale)
• 3. the tax must not be unreasonably burdensome in particular, it must be proportioned to the company's business done in the state or benefits rec'd in the state (flat taxes on interstate businesses are invalid b/c cumulative taxes could crush business)