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Q: states rights questions ( Answered 4 out of 5 stars,   0 Comments )
Subject: states rights questions
Category: Relationships and Society > Law
Asked by: poliscistudent-ga
List Price: $5.00
Posted: 13 Dec 2002 13:27 PST
Expires: 12 Jan 2003 13:27 PST
Question ID: 124338
can anyone answer these questions...

1.  Identify the decisions that denied the scope of the tenth
2. What is federal preemption and how has it been employed by the
Supreme Court with the regard to state powers.
3.  Define Art 1 Section 10 of the consitution.  How has the Supreme
Court defined the powers of the state government in this area.
4.  What are the powers of state government in oppsoing restrictions
of regulations on personal private contracts.
5.  Describe and define the power of State government to regulate
commerce within their boundaries.
Subject: Re: states rights questions
Answered By: weisstho-ga on 14 Dec 2002 20:32 PST
Rated:4 out of 5 stars
HI!! Poliscistudent!!

This is a lot for a five dollar question, but constitutional law is an
area that I really enjoy – so sitting here on an otherwise very boring
Saturday evening, I was able to entertain myself with your challenging

Here we go!!

1.  Identify the decisions that denied the scope of the tenth 
A.	The tenth amendment specifies that “Section 10. No state shall
enter into any treaty, alliance, or confederation; grant letters of
marque and reprisal; coin money; emit bills of credit; make anything
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.
No state shall, without the consent of the Congress, lay any imposts
or duties on imports or exports, except what may be absolutely
necessary for executing it's inspection laws: and the net produce of
all duties and imposts, laid by any state on imports or exports, shall
be for the use of the treasury of the United States; and all such laws
shall be subject to the revision and control of the Congress.
No state shall, without the consent of Congress, lay any duty of
tonnage, keep troops, or ships of war in time of peace, enter into any
agreement or compact with another state, or with a foreign power, or
engage in war, unless actually invaded, or in such imminent danger as
will not admit of delay.”
B. 	Early decisions by the Court maintained the concept that police
power had been reserved exclusively to the states, even where those
decisions sided with expansion of federal power. For example, Chief
Justice John Marshall’s opinion in McCulloch v. Maryland (1819),
although seen as an erosion of state power was powerfully defended by
the Chief Justice as only a means of carrying out a power that had
been constitutionally delegated to the federal government.
C.	During the Civil War and the Reconstruction that followed, the
federal government powers were enormously increased – armies of
occupation ruled certain states, the Freedmen’s Bureau exercised
tremendous police power in regard to former slaves. The Fourteenth
Amendment opened the door for congressional action in areas that would
earlier have been regarded as reserved for the states.
D.	Erosion of the Tenth Amendment began early in the 20th century. In
Champion v. Ames (1903) the Court upheld an act forbidding the
shipment of lottery tickets in interstate commerce. This was seen as
an act to restrict gambling.
E.	McCray v. United States (1904) upheld a congressional act imposing
a prohibitive excise tax on oleo, which amounted to an exercise of
police power to protect the health of the citizenry, under the guise
of a constitutional exercise of the power to levy taxes.
F.	In Hammer v. Dagenhart the Court upheld a federal law that upheld
restrictions on shipment of products from mines that employed
G.	In Mulford v. Smith (1939) the Court completely rejected the Tenth
Amendment when it laid down the child labor cases.
H.	In U.S. v. Darby (1941) Chief Justice Harlan Fiske Stone reduced
the amendment to rubble, describing it as merely declaratory of
intergovernmental relationships and as having no substantive meaning.

Information provided by the Oxford Companion to the Supreme Court of
the United States, p. 861-863.
2. What is federal preemption and how has it been employed by the 
Supreme Court with the regard to state powers. 
A.	Federal Preemption is created by the Supremacy Clause, Article VI: 
This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary
B.	The preemption doctrine derives from the Supremacy Clause of the
Constitution which states that the "Constitution and the laws of the
United States...shall be the supreme law of the land...anything in the
constitutions or laws of any State to the contrary notwithstanding." 
This means of course, that any federal law--even a regulation of a
federal agency--trumps any conflicting state law.
C.	Preemption can be either express or implied.  When Congress chooses
to expressly preempt state law, the only question for courts becomes
determining whether the challenged state law is one that the federal
law is intended to preempt.  Implied preemption presents more
difficult issues.  The Court has to look beyond the express language
of federal statutes to determine whether Congress has "occupied the
field" in which the state is attempting to regulate, or whether a
state law directly conflicts with federal law, or whether enforcement
of the state law might frustrate federal purposes.
D.	Federal "occupation of the field" occurs, according to the Court in
Pennsylvania v Nelson (1956), when there is "no room" left for state
regulation.  Courts are to look to the pervasiveness of the federal
scheme of regulation, the federal interest at stake, and the danger of
frustration of federal goals in making the determination as to whether
a challenged state law can stand.
E.	In Silkwood v Kerr-McGee (1984), the Court, voting 5-4,  found that
a $10 million dollar punitive damages award (in a case litigated by
famed attorney Gerry Spence) against a nuclear power plant was not
impliedly pre-empted by federal law.  Even though the Court had
recently held that state regulation of the safety aspects of a
federally-licensed nuclear power plant was preempted, the Court drew a
different conclusion with respect to Congress's desire to displace
state tort law--even though the tort actions might be premised on a
violation of federal safety regulations.
3.  Define Art 1 Section 10 of the constitution.  How has the Supreme
Court defined the powers of the state government in this area. 
A.	“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.	The language of Art I Section 10 is prohibitory in its intent and
on its face provides absolute limitations on state power. However,
certain clauses have been interpreted differently by the Court at
various times; for example, the Contracts Clause (“No state shall . .
. pass any Law impairing the Obligation of Contracts”) seems on its
face to be absolutely prohibitory of state action in this area.
However, in Keystone Bituminous Coal Ass’n v. DeBenedictis (1987) the
Court stated that “it is well-settled that the prohibition against
impairing the obligation of contracts is not to be read literally.”
(Keystone at page 502).
C. 	Ex Post Facto laws, again, appear to be absolutely prohibited from
enactment by the states. But the Court has limited this provision to
criminal laws and permitted laws with retroactive effect in the civil
context. Further, the ban on ex post facto laws operate solely as a
restraint on legislative power and has no application to changes in
law made by judicial decision.

4.  What are the powers of state government in opposing restrictions 
of regulations on personal private contracts. 
A.	I take this question to inquire:  If the federal government were to
regulate private contracts, can a state oppose such restrictions?
B.	In Cooley v. Port Wardens of Philadelphia (1852), the Court upheld
a state regulation of harbor pilots and adopted the doctrine of
“selective exclusiveness.”  This doctrine states that when the subject
matter of the commerce requires a national uniform rule, only Congress
may regulate it; if, however, the commerce is of a local nature and
Congress has not acted, the states may regulate.

5.  Describe and define the power of State government to regulate 
commerce within their boundaries.

A.	The Commerce Clause (Article I, Section 8, Clause 3) grants gives
Congress the power to regulate interstate commerce. While states share
certain powers with the federal government (e.g. the power to tax
their own citizens), the Supreme Court has held that the power to
regulate interstate commerce is an exclusive one. When the citizens of
the United States ratified the Constitution, and within it the
delegation of such regulation to the federal government, there arose a
negative inference that States surrendered their power to regulate
interstate commerce. Even where Congress chooses not to exercise such
power, States cannot regulate (even when Congress sleeps, that
exclusive power is dormant).

B.	However, the Supreme Court recognizes that States may exercise
police powers to safeguard their citizens. At times, laws passed under
such authority affect interstate commerce. The Supreme Court created
the Pike test (Pike v. Bruce Church) to see whether such a law can
survive: so long as state laws do not regulate commerce qua commerce,
discriminate against interstate commerce, or overly burden commerce,
the courts will refuse to strike them down. Note that where a law has
an extraterritorial effect, courts will often presume its purpose was
one of economic protectionism and outside a state's police powers. But
where a state law does not violate the exclusive nature of the
Commerce Clause (always present,ie.dormant), and is not preempted by
federal law, the state law will survive a constitutional challenge.

C.	Note that so long as the Constitution does not expressly prohibit
the action, Congress may delegate power back to the Sates. But where
there is not such express authorization, States may not regulate
interstate commerce, even in a vacuum of Congressional action.

D.	States can invoke police powers to protect the health and safety of
their citizens, even when doing so would have an incidental affect on
commerce. Laws passed pursuant to such police powers may resemble a
regulation of interstate commerce, but they carry instead the
objective of promoting health and safety.
E.	To find discrimination, courts ask if a state law intentionally
discriminates against out-of-state commerce. Such discrimination may
be present on the face of the law or may result merely as a natural
consequence of the law's passage. In either scenario, the court will
find that the state law has intentionally discriminated. Courts
recognize that discriminatory laws are often passed not to promote
safety, but to protect the commerce of the defendant State. Such
economic protectionism leads to exactly the sort of trade
balkanization the Framers meant to avoid.
F.	Courts will strike down such discriminatory laws unless a State can
prove it could not achieve its important safety purpose by any
reasonable less discriminatory means. Even where a law survives a
finding of discrimination, the incidental burdens it places on
interstate commerce cannot outweigh the putative local benefits it
G.	For an excellent discussion of the particulars of permissible state
action, please see the following site:

Well, poliscistudent – I hope that I was able to be a substantial
help. Let me suggest to you a wonderful basic resource that I am sure
that your library will have on hand:  The Oxford Companion to the
Supreme Court, edited by Kermit L. Hall (ISBN 0-19-505835-6).  This
comprehensive book of 1000 pages has some of the best summaries of
federal constitutional, statutory and common law provisions that I
have seen.

Please let me know if you would like any additional clarification. 
Just click on the “Clarification” button and I will get right back to

Best of luck!!



Search Sources:
The Oxford Companion to the Supreme Court of the United States
poliscistudent-ga rated this answer:4 out of 5 stars

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