1.2 MBE Constitutional Law Workshop Flashcards
By state law, no movie theater may admit anyone under age 18 to any movie classified as “adult” by the state ratings board. In response to a survey on the effect of adult entertainment on people under age 21, the legislature proposed to amend the statute to prohibit admission of any male under age 20 and any female under age
19 to any theater playing adult-rated movies. A theater owner operates a theater showing only adult-rated movies. Because it is located next
to a college campus, he stands to lose nearly half his patronage if this statute is enacted. The theater owner brought an action in federal court to restrain its enactment, arguing that it would amount to unconstitutional sex discrimination.
What should the court do?
(A) Dismiss the action for want of a case or controversy.
(B) Dismiss the action, because it does not present a substantial federal question.
(C) Abstain from hearing the case, pending an authoritative construction of the proposed statute by a state court.
(D) Hear the case on its merits, because the proposed statute would deny males the equal protection of the law.
The state law at issue here is a “proposed” statute. Therefore, a federal district court is without jurisdiction to decide its constitutionality. Hence, (A) is correct
Congress passed a statute requiring
energy consumption be reduced by a speci- fied percentage, to be set by a presidential executive order. The statute provided specific standards that the President must use in setting the percentage, and detailed procedures to be followed.
Is this statute likely constitutional?
(A) Yes, because it creates a limited adminis- trative power to implement the statute.
(B) Yes, because inherent executive powers permit such action even without statutory authorization.
(C) No, because it is an undue delegation of legislative power to the executive branch.
(D) No, because it violates the Due Process Clause of the Fifth Amendment.
(A) The statute is likely constitutional. Congress has broad discretion to delegate its legislative power
to executive officers or administrative agencies. Delegations of legislative power to the executive branch of government are virtually always upheld. The Supreme Court says that there must be some standards to guide the exercise of discretion, but the requirement is very minimal. Here, the statute “sets forth specific standards” and thus is sure to be upheld.
delegation of power
A massive earthquake struck Mexico, causing widespread death and destruction. The President of Mexico made an urgent plea to the Presi- dent of the United States asking for assistance. Congress was not in session and the President, without calling Congress into special session, ordered extensive military aid, in the form of personnel and equipment, to assist Mexico.
Which of the following best describes the constitutionality of the President’s orders?
(A) The action was a valid exercise of the Pres- ident’s position as Commander in Chief of the Armed Forces of the United States.
(B) The action was valid under the plenary powers of the President, inasmuch as the Army units were used for humanitarian, rather than warlike, purposes.
(C) The action was unconstitutional, because the President may not perform acts when Congress is not in session that he would have to ask Congress to approve if it were in session.
(D) The action was unconstitutional, because the President does not have the power to unilaterally authorize this type of foreign aid.
(A) The President as Commander in Chief of the Armed Forces has broad discretion to use American troops in foreign countries. In fact, never in all of American history has a presidential use
of troops in a foreign nation been declared unconstitutional. Thus, the President’s power as Commander in Chief would justify this action.
A lunarian society believed that intelligent life existed on the moon, but that the government was not interested in searching for it. A wealthy political contributor who was a member of this society successfully lobbied Congress to pass a $100 million bill to investigate this hypothesis, even though virtually all reputable scientists rejected it. The President vetoed the bill, calling it a waste of money, but Congress overrode the veto, and the appropriation was authorized.
If the constitutional validity of the expenditure is challenged in federal court, is the court likely to find it valid?
(A) Yes, because the spending power of Con- gress is limited only by the political pro- cess.
(B) Yes, because Congress could believe that the expenditure is a reasonable measure to advance the general welfare.
(C) No, because the expenditure is inconsistent with the exclusive authority of the President over foreign affairs.
(D) No, because the spending does not directly affect interstate or foreign commerce
The court is likely to find the expenditure constitutional. Congress can spend federal monies for the general welfare [art. I, §8] provided the spending is reasonably related to a legitimate federal interest. [South Dakota v. Dole (1987)] Here, Congress could believe that it is in the national interest to determine conclusively whether life exists on the moon.
The President issued an executive order prohibiting exportation to certain countries of specific computer software that, although not usable directly to develop nuclear weapons, would facilitate nuclear weapons technology. Congress had previously passed a law autho- rizing the issuance of such orders. Prior to the issuance of the executive order, a computer software company contracted with one of those countries for software that is now banned for sale and distribution.
What effect does the executive order have on this contract?
(A) The executive order unconstitutionally impairs the obligation of the company’s preexisting contract, which was lawful when made.
(B) The executive order unconstitutionally denies the company a valuable property interest without due process, because it is not limited to computer software used directly to produce nuclear weapons and, therefore, is not necessary to vindicate a compelling national need.
(C) The executive order is constitutional because Congress has plenary powers to regulate commerce with foreign nations and has used that power to authorize such orders.
(D) The executive order is constitutional, because the inherent power of the President to conduct foreign affairs is plenary
(C) The executive order is constitutional because it was authorized by Congress. For all practical purposes, the power to regulate foreign commerce lies exclusively with Congress, and Congress may delegate this power to the President. By authorizing the issuance of the Presidential executive order, Congress has constitutionally exercised this power.
(A) is incorrect because the impairment of the Contract Clause applies to state governments only, not to the federal.
A federal statute provided: “No speed governing device may be removed from any vehicle if it was installed by the federal govern- ment.” The statute also provided for criminal penalties for its violation.
A driver purchased a previously owned government vehicle with a speed governing device at auction and used the car to drive to
and from work. The car struggled to maintain speed above 35 m.p.h. on any incline, nearly causing the driver to be rear-ended several times. Deciding that the device was dangerous, the driver removed it.
If the driver is prosecuted for violating the statute, which of the following is her strongest constitutional defense?
(A) The statute violates the Due Process Clause of the Fourteenth Amendment.
(B) Because no state statute prohibits removal, the federal statute invades interests protected by the Tenth Amendment.
(C) The statute violates the Privileges or Immunities Clause of the Fourteenth A mendment.
(D) The statute violates the Due Process Clause of the Fifth Amendment.
(D) The only possible basis for a successful challenge against the federal statute is the Due Process Clause of the Fifth Amendment
(C) is wrong because the Fourteenth Amendment does not apply to the federal government; it only regulates state and local governments. Moreover, the Privileges or Immunities Clause of the Fourteenth Amendment is rarely used as a basis for declaring laws unconstitutional.
A state statute makes it a crime punishable by fine or imprisonment “for any person to attempt to intimidate or force a state official to discriminate against persons in violation of the Fourteenth Amendment to the United States Constitution.”
Is the statute constitutional?
(A) Yes, because the state has a right to punish those who seek to suborn its officials into committing illegal acts.
(B) Yes, unless it conflicts with federal civil rights legislation.
(C) No, because the statute deals with acts of private persons and the Fourteenth Amend- ment requires state action.
(D) No, because states do not have the authority to enforce the Federal Constitution.
(A) The statute is constitutional as properly within the state’s power to enact. The state can punish through its criminal law whatever behavior it wishes, provided the state statute does not violate the Constitution or federal law. There is no constitutional violation in punishing those who attempt to intimidate state officials. (B) is incorrect because the fact that the statute does not conflict with civil rights legislation does not automatically make the statute constitutional.
Two adult males set up a tent in a remote and secluded overnight camping area of a state park. A park ranger who happened to be in the area heard them engaging in sexual relations and pulled open the tent flap and arrested them. They were charged and convicted under the state’s century-old anti-sodomy statute, which the state still enforced.
If the defendants appeal to the state appellate court claiming a violation of their constitutional rights, what should the court do?
(A) Reverse the conviction, because the de- fendants’ due process rights were violated when they were arrested in the secluded park area.
(B) Reverse the conviction, because consenting adults are free to engage in sexual activity.
(C) Uphold the conviction, because the United States Constitution provides no right to engage in sodomy in a private setting.
(D) Uphold the conviction, because the defen- dants were in a state park, a public area.
(A) The court should reverse the conviction on substantive due process grounds. The Supreme Court in Lawrence v. Texas held that a state law criminalizing sodomy between members of the same sex violates the Due Process Clause of the United States Constitution.
A state law provided that only citizens of the United States may be hired by any governmental unit within the state. A citizen of the Philippines, who had been a legal resident of the state for five years, was awarded a medical degree from the state university and was licensed by the state to practice medicine. The doctor applied for a job opening in the state government, but despite the fact that she was fully qualified, she was rejected solely because of the statute.
If she files suit in federal court to enjoin enforcement of the statute, what is her best constitutional argument?
(A) The Ex Post Facto Clause.
(B) The Equal Protection Clause of the Fourteenth Amendment.
(C) The Due Process Clause of the Fourteenth A mendment.
(D) The Privileges or Immunities Clause of the Fourteenth Amendment.
(B) The doctor’s best constitutional argument is the Equal Protection Clause. The Supreme Court
has ruled in a handful of cases that a state may require citizenship for important state jobs that directly affect the political process, provided the state has a rational basis for such discrimination. [See, e.g., Foley v. Connelie (1978)—state troopers; Ambach v. Norwick (1979)—primary and secondary school teachers; Cabell v. Chavez-Salido (1982)—probation officer] This is an excep- tion to the usual rule that state classifications of aliens are “suspect” and subject to strict scrutiny. Serving as a doctor is unlikely to fit this exception.
Congress enacted a statute making it illegal to sell reading glasses without a prescription. The statute provided that any business violating the statute after it becomes effective is guilty of a misdemeanor, punishable by the imposition of
a $300 fine and the loss of its business license. A drugstore owner had maintained a large rack of nonprescription reading glasses for years. He was able to offer high quality nonprescription glasses to his customers at low prices because five years ago he entered into a very advanta- geous 10-year contract with a leading supplier
of nonprescription eyeglasses. The owner’s drugstore was one of the first to be inspected after the new statute took effect. Two weeks after the inspection, the owner received a letter informing him that his business license had been revoked because he was found to have been selling nonprescription reading glasses in viola- tion of the new statute. The letter was the first time the owner had ever heard of the statute.
Which of the following constitutional clauses provides the owner with his best defense to the revocation of his business license?
(A) The Privileges and Immunities Clause of Article IV.
(B) The Contract Clause.
(C) The Due Process Clause.
(D) The Equal Protection Clause.
(C) The owner’s best argument is that he was deprived of liberty or property without due process
of law. Under the Due Process Clause, a party is entitled to notice and an opportunity to be heard before being deprived of liberty or property. Here, the owner was deprived of his business license without a pre-deprivation hearing, and nothing in the facts indicates that he is entitled
to any type of post-deprivation hearing. As such, the statute may be unconstitutional, and that would be the owner’s best defense.
A defendant stood accused of murdering
a family of six in a small town. The judge, concerned not only about prejudice to the defen- dant’s right to a fair trial but also about media attention and public opinion in such a small locale, issued an order forbidding the press from attending the trial or publishing any details of the testimony at trial.
If a local newspaper sues in federal court to have the judge’s gag order overturned, will the newspaper prevail?
(A) Yes, because the proper way to deal with prejudicial publicity is via a change of venue.
(B) Yes, because of the constitutional right to a public trial.
(C) Yes, because the judge has attempted to impose a prior restraint in violation of the First Amendment.
(D) No, because the judge honestly believed that publicity would be prejudicial and would impair the defendant’s constitutional right to a fair trial.
(C) The newspaper will prevail on First Amendment grounds. In Nebraska Press Association v. Stewart (1976), the Supreme Court made it clear that a prior restraint will be upheld only if it
is the only sure way of preserving a fair trial for the defendant. Although prejudicial publicity can pose a serious problem, the Supreme Court held that it virtually always should be dealt with by means other than prior restraints.
