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Questions for Review and Answers

1. In general, what does the Supreme Court consider when faced with the constitutionality of a state law?
The Supreme Court generally considers if a federal law preempts the state law or if a state law or tax violates the Commerce Clause (including the dormant commerce clause). It also considers if the state law violates some other provision of the Constitution.

2. Define the terms express preemption, field preemption, and conflict preemption.

Express preemption: The federal law contains a provision superseding all state laws. Field preemption: It can be implied from various factors, such as the scope of the federal law, that Congress intended to preempt the field.
Conflict preemption: The federal and state laws actually conflict.

3. What is the dormant commerce clause?
The principle that under some circumstances the Commerce Clause prevents state regulation of interstate commerce even if the specific regulated activity is not regulated by federal laws.

4. How does the Interstate Commerce Clause limit the right of states to enact laws?

Article I §8 gives Congress the power to regulate interstate and federal commerce. Therefore, whenever a state enacts a law that impacts interstate commerce, the Commerce Clause affects the constitutionality of the state law. The Interstate Commerce Clause does not prohibit states from enacting such laws unless the federal government has preempted the field or unless the dormant commerce clause applies. The Court’s position is that the Interstate Commerce Clause has both a positive and a negative aspect. The positive aspect is that it gives power to the federal government to regulate. The negative aspect is that it limits the rights of states to regulate.

5. How does being a market participant affect the right of a state to discriminate against out-of-state businesses?
When the state acts as a market participant rather than just a government, it is treated like any business. Discriminating against out-of-state interests is not a violation of the Interstate Commerce Clause.

6. What criteria does the Court use to determine if a state law violates the dormant commerce clause?
Generally, the Court considers (1) whether the state law discriminates against out-of- state interests; and (2) whether the burden on interstate commerce outweighs the local necessity for the law.

7. Why do states have constitutional problems when they tax out-of-state businesses?
Such taxes interfere with the right to do business out of state and therefore impact interstate commerce.

8. List the criteria used by the Court to determine the constitutionality of a tax on an out-of-state business.
1. The tax must be on an activity that has a substantial nexus with the taxing state.

2. The tax must be fairly apportioned.

3. The tax does not discriminate against interstate commerce.

4. The tax is fairly related to the services provided by the state.

9. What provisions of the Constitution limit the powers of the state to enact laws or impose taxes?
Supremacy Clause Commerce Clause
Article 1 §10 (“Powers Denied to the States”) Article IV
Various other amendments, including the Fourteenth, Fifteenth, Nineteenth, Twenty- fourth, and Twenty-sixth limit the powers of the states.

10. How can the Equal Protection Clause and the Due Process Clause affect the constitutionality of laws dealing with interstate commerce?
In some instances, the Equal Protection Clause, the Privileges and Immunities Clause, and the Due Process Clause are also used in conjunction with the dormant commerce clause to challenge state laws. The Equal Protection Clause arises whenever a state law is claimed to be discriminatory. If out-of-state businesses are treated differently from in-state business, the Equal Protection Clause is often violated along with the Commerce Clause. In this kind of case, the Privileges and Immunities Clause might also apply. This clause requires that states extend the same privileges and immunities to state citizens and noncitizens. If the state is not giving out-of-state business the same privileges and immunities as it does its own citizens, this clause might well be violated. The Due Process Clause often arises whenever the state law involves a tax. Due process requires that a business or individual must have minimum contacts with a state before being taxed by that state.