Intergovernmental immunities - Next Generation Bar Exam

1. What does the Tenth Amendment provide?

   Powers not delegated to the United States, nor prohibited to the states, are reserved to the states or the people. The amendment confirms that the federal government has only enumerated powers.

2. By what means may Congress encourage states to adopt federal policies without commandeering them?

   Conditions on federal spending, or offering states a choice between regulating or being preempted. Encouragement is permitted so long as the state retains a genuine choice.

3. Under Murphy v. NCAA, what is the status of a federal law forbidding states to authorize sports gambling?

   It unconstitutionally commandeers state legislatures. Prohibiting states from enacting laws is as much commandeering as requiring them to enact laws.

4. Under the intergovernmental immunity doctrine, what state regulation of the federal government is forbidden?

   Regulation that directly controls federal operations or discriminates against the federal government or those it deals with. Federal activities are immune from state regulation absent congressional consent.

5. Under New York v. United States and Printz v. United States, what may Congress not do to the states?

   Compel state legislatures to enact federal programs or state officers to administer them. This anti-commandeering principle derives from the Tenth Amendment and the structure of the Constitution.

6. Under McCulloch v. Maryland, what may a state not do to the federal government?

   Tax it directly. The power to tax involves the power to destroy, so states may not tax federal instrumentalities.

7. A federal statute requires county sheriffs to perform background checks on prospective handgun buyers. On what ground is the requirement invalid?

   It commandeers state executive officers to administer a federal program. Printz v. United States struck down this requirement of the Brady Act.

8. What federal laws may Congress apply to the states without violating the anti-commandeering principle?

   Generally applicable laws that regulate the states as they regulate private parties. Reno v. Condon upheld a federal law restricting states' disclosure of driver information.

9. A state taxes the pensions of retired federal employees but exempts the pensions of retired state employees. On what ground is the tax invalid?

   It discriminates against federal employees in violation of intergovernmental tax immunity. Davis v. Michigan Department of Treasury struck down such a scheme.

10. When may a state tax a private contractor that does business with the federal government?

    When the tax does not discriminate against the federal government or fall legally on the United States. United States v. New Mexico upheld nondiscriminatory taxes whose economic burden passed to the federal government.

11. What limits apply to federal taxation of the states?

    Nondiscriminatory federal taxes on state activities are generally permitted. South Carolina v. Baker rejected broad state immunity from federal taxation.

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