5. Con Law: Intergovernmental Tax and Regulation Immunities/Privileges and Immunities
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FEDERAL TAXATION AND REGULATION OF STATE GOV'TS
The powers not delegated to the US by the constitution, nor prohibited to the states, are reserved to the states.
The 10th amendment will not bar a tax or regulation that subjects states or local gov'ts to regs or taxes that apply to both the public sector and the private sector.
But the 10th amendment does limit congress's power to regulate the states alone by requiring the states to act in a particular way. Congress may not compel states to enact or enforce a regulatory program. If congress passes a tax that does not apply to private businesses but merely taxes state gov't entities, there is a possibility that the court woud use the 10th amendment to prohibit the tax.
EXCEPTION: congress may use its power under the 14th and 15th amendments to restrict state activities that it determines would violate the civil liberties of persons within the state.
Congress may also regulate the states through the spending power by imposing explicit conditions on the grant of money to state or local gov'ts.
The USSC has held that the 10th amendment prohibits congress from adopting a statute that commandeers state officials by requiring states to regulate their own citizens. However, the court has allowed congress to regulate the states by prohibiting them from performing certain acts.
STATE TAXATION AND REGULATION OF FEDERAL GOVERNMENT
A state tax levied directly against the property or operation of the federal gov't without the consent of congress is invalid.
Nondiscriminatory, indirect taxes on the federal gov't or its property are permissible if they do not unreasonably burden the federal gov't.
The states have no power to regulate the activities of the federal gov't unless congress consents to the regulation. Thus, instrumentalities and agents of the federal gov't are immune from state regulations relating to performance of their federal functions.
PRIVILEGES OF STATE CITIZENSHIP
Article IV's interstate privileges and immunities clause provides that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. Thus, it prohibits discrimination by a state against non-residents.
Corporations and aliens not protected.
Does not prohibit all discrimination by a state in favor of its own citizens, but only when the denial concerns fundamental rights, ie, those involving important commercial activities or civil liberties.
A state law discriminating against nonresidents may be valid if the state has a substantial justification for the different treatment. It must show that nonresidents either cause or are part of the problem it is attempting to solve, and that there are no less restrictive means to solve the problem.
PRIVILEGES AND IMMUNITIES AND COMMERCE CLAUSE
Although the art IV privileges and immunities clause may apply different standards and produce different results, they tend to mutually reinforce each other. Consequently, they both have to be considered in analyizing bar exam questions.
PRIVILEGES OF NATIONAL CITIZENSHIP
Prohibits states from denying their citizens the privileges and immunities of national citizenship, such as the right to petition congress for redress of grievances, the right to vote for federal officers, the right to enter public lands, etc, and any other right flowing from the distinct relation of a citizen to the US gov't.
Does not protect corporations.
The fundamental rights protected against federal abuse are not privileges or immunities of national citizenship within the meaning of the 14th amendment. Thus, the guarantees of the bill of rights are protected from state action only by the DP and EP clauses of the 14th amendment.
The right to travel, which is protected by the 14th amendment, includes the right of newly arrived citizens to enjoy the same privileges and immunities as are enjoyed by other citizens of the state.
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