Federalism Outlines

Federalism IV – State Authority

I.     Article IV – “The Federalism Article.”

    A.     Summary of provisions.
      §1:     Full faith and credit for public acts and judicial proceedings.
      §2:     Privileges and immunities; extradition of fleeing criminals and slaves.
      §3:     Admission of new states; property power.
      §4:     Guarantee clause; protection against foreign invasion or domestic violence.
    B.     The Comity Principle. The deference given by one state to the laws and judicial decisions of another state. Art. IV, Sects. 1 and 2.
    C.     Privileges and immunities of state citizenship (Art. IV, §2, Cl. 1).
      1.     Fundamental rights. See Corfield v. Coryell (1823).
        a.     Only fundamental rights are protected. These include important commercial activities (choice of occupation), interstate travel, and property rights.
        b.     Possible rationale: Fundamental rights are the God-given right of citizens to fulfill the dominion mandate.
        c.     Mere civil rights (voting, etc.) are not protected by the P&I clause.
      2.     State citizenship.
        a.     Citizenship => residency.
          1)     State citizenship is determined by mere residency for U.S. citizens. See, 14th Amend. §1.
          2)     However, mere residency does not establish U.S. citizenship for aliens.
          3)     The privileges and immunities of state citizenship do not apply to aliens. Why? – Non-citizens have no fundamental right to exercise dominion in the U.S.
        b.     Municipal laws are examinable under P&I clause. Camden (1984).
          1)     Municipal law derives authority from state.
            - A true political subdivision.
          2)     Municipal discriminations affect out-of-state residents the same as state discriminations.
          3)     Out-of-state residents have no representation in state legislature, hence, no other remedy.
        c.     Corporations are not protected by this clause, even though they have attributes of state citizenship. See, Bank of Augusta (1839). Why? Corporations (as artificial persons) have no God-given rights.
      3.     Two-step analysis. (Both Camden and Friedman cases.)
        a.     The privileges and immunities of state citizenship are implicated when a fundamental right is at issue and a discrimination has been made by a state on the basis of state citizenship.
        b.     A state may nonetheless discriminate on the basis of state citizenship if it can show: 1) it is advancing a substantial state interest; 2) nonresidents either cause or are part of the problem it is attempting to solve; and 3) there are no less restrictive means available to
        solve the problem.
        c.     S.Ct. of Virginia v. Friedman (1988). State law requiring permanent residency as a condition of admission to the bar is held violative of the Privileges & Immunities Clause of Art. IV, §2.

II.     Limits on State Authority. Under the U.S. Constitution, the question of state power is not one of authority, but of limits on that authority.

    A.     State authority is derived from state constitutions.
      1.     Historically, states & their constitutions came first. Thus, their authority preceded the federal authority. See dates of State Constitutions.
      2.     States delegated authority to federal government, not vice versa. See Amend. IX and X.
      3.     The Union admits states, it does not create them.
        a.     Art. IV, Sec 3.
        b.     Northwest Ordinance, Art. V. New states are on an “equal footing”. Who forms the state constitutions & government? – the people.
    B.     U.S. Constitutional limits on state authority.
      1.     Express Limitations.
        a.     Art I, Sec. 10. “No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or
        law impairing the obligation of contracts, or grant any title of nobility.”
        b.     Art IV, Sec. 1 & 2. Full faith and credit; privileges and immunities clause; extradition of criminals.
        c.     McCulloch – No express provisions apply in this case.
      2.     Implied limitations based on fundamental principles of federalism.
        a.     Example:
          1)     Taxation, to be lawful, must be by consent, i.e., No taxation without representation.
          2)     A state cannot tax people not represented in the state, because of the principle of “no taxation without representation.”
      3.     Historically, the limits on state authority are absolute, not matters of degree.
        a.     Jurisdictional distinctions. Object analysis.
        b.     No taxation without representation. Instrumentality of federal gov’t cannot be taxed by legislature wherein the national polity is not represented.
        c.     The “Confidence” issue. “Confidence” presumes law is a matter of degree – rejected by Marshall.
    C.     Supremacy Clause – Article VI, § 2.
      1.     Historic view.
        a.     If a state law actually conflicts with federal law, the state law will be invalidated.
        b.     McCulloch – Reliance upon. Argument:
          1)     U.S. Constitution has the capacity to limit state authority.
          2)     Constitution in fact limits impliedly repugnant state laws. Not merely express limits, but repugnant in principle.
          3)     The nature of constitutional repugnancy is jurisdictional.
            - Marshall’s “Thesis & Rule”: There are no “clashing sovereignties”, rather, “concurrent jurisdictions”.
      2.     Modern view.
        a.     If a state law actually conflicts with federal law, the state law will be invalidated. Gibbons v. Ogden.
        b.     If a state or local law prevents achievement of a federal objective, it will be invalidated. This is true even where state law was enacted for some valid purpose and not to frustrate the federal law. Q: Is this the same as Marshall’s analysis of a state law repugnant to
        the nature of the constitution (presumes an “object analysis”)?
        c.     A federal statute or regulation may expressly or impliedly “occupy” the entire field, thus precluding any state or local regulation even if the state or local regulation is nonconflicting.
        d.     Factors considered in determining implied preemption are: 1) comprehensiveness of the federal scheme, and 2) creation of an agency to administer the law.
      3.     Gade v. Nat’l Solid Wastes Mgmt. Ass’n. (1992).
        a.     Presumption: historic police powers of the states are not to be superseded by a federal act unless that is the clear and manifest purpose of Congress, either express or implied.
        b.     A conflict will be found where:
          1)     compliance with both federal and state laws is a physical impossibility; or
          2)     state law obstructs accomplishment of Congressional objectives.
        c.     Complete deference to Congress to decide what subjects demand uniformity (health and safety) (opinions all follow Cooley, but differ in understanding what Congress has required to be uniform). The “ultimate task” is to compare state law with the
        federal law (not the Constitution).

III.     Intergovernmental immunities

    A.     Federal immunity from regulation.
        a.     General rule. States may not regulate the federal government or its agents while performing their federal functions.
        b.     Leslie Miller, Inc. v. Arkansas. Court treats independent federal contractor as an instrumentality of the U.S. Reconcilable with U.S. v. New Mexico?
        c.     Hancock v. Train. Federally owned and controlled facilities cannot be regulated by states.
    B.     State immunity from federal regulation.
      1.     Tax or Regulation that Applies Only to States. A federal tax or regulation that is not applicable to private businesses but merely taxes or regulates a purely state or local governmental activity may be limited by the tenth amendment.
        a.     New York v. U.S. (1992). Federal law directing states how to dispose of radioactive waste held unconstitutional in part.
          1)     Explicitly assumes Congress can regulate interstate disposal of low-level radioactive waste under Commerce Clause.
          2)     Court admits Congress can require states to choose whether to regulate according to federal standards or to have state law pre-empted by federal regulation.
          3)     Further, Congress may condition receipt of federal funds under Spending Clause.
        b.     However, Congress may not simply commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program.
          1)     “A choice between two unconstitutionally coercive regulatory choices is no choice at all.”
          2)     The “take title” provision of the law (requiring states to take title to undisposed privately generated radioactive waste and imposing liability on states for its non-disposal) “is inconsistent with the federal structure of our Government.”
      2.     Tax or Regulation that Applies to Both State and Private Activities. Congress may subject state and local government activities to regulation or taxation if the law or tax applies to both the public sector and the private sector (e.g., minimum wage laws).
        a.     Garcia v. San Antonio Metro Transit Authority. Minimum wage and overtime provisions of Fair Labor Standards Act applied to state employees.
          1)     Overrules National League of Cities (1976). The only limits on Congress vis-a-vis the states are found in the inherent structure of the federal system – no express limitations.
          2)     Congress can regulate state functions because the states are represented in Congress. But, hasn’t this changed via 17th amendment? See dissent.
          3)     The issue nobody raised: validity of FLSA in general.
    C.     Federal immunity from taxation.
      1.     General rule.
        a.     A state may not directly tax federal governemt, or an agency or instrumentality without the consent of Congress.
        b.     However, nondiscriminatory, indirect taxes are permissible if they do not unreasonably burden the federal government (e.g., state income tax on federal employees).
        c.     Legal, not economic, analysis applied.
      2.     Federal immunity is inapplicable to:
        a.     taxes which merely affect U.S.
        b.     taxes on earnings of government contractors.
        c.     taxes paid with federal funds.
      3.     Advanced funds paid by U.S. Treasury are taxable “gross receipts” of the contractors.
        a.     federal gov’t disclaims agency status of contractors.
        b.     contractors make purchases in their own name.
        c.     Congress impliedly wanted this result.
    D.     State immunity from taxation.
      1.     Marshall’s view: No limits on Congress’ ability to tax states.
        a.     States are all represented in Congress (Senate).
        b.     Rule of uniformity precludes the whole people from selectively taxing individual states. Essentially a guarantee of taxation with representation.
        c.     States have no claim to supremacy.
        d.     General government is one of enumerated powers, states are not so constructed.
      2.     Rebuttal to Marshall’s argument:
        a.     States have not been represented in Congress since 1913 (Amend. XVII).
        b.     The objects of federal gov’t do not extend to state authority. State law is supreme in its own sphere.
        c.     States are not political subdivisions of the federal gov’t. States granted power to Congress, not the reverse.
        d.     Lonang basis: Exemption for the household of Caesar. Mt 17:24-27.