Con Law Flashcards
A federal statute provides that the United States Supreme Court has authority to review any case filed in a United States Court of Appeals, even though that case has not yet been decided by the court of appeals.
The Environmental Protection Agency (EPA), an agency in the executive branch of the federal government, issued an important environmental rule. Although the rule had not yet been enforced against them, companies that would be adversely affected by the rule filed a petition for review of the rule in a court of appeals, seeking a declaration that the rule was invalid solely because it was beyond the statutory authority of the EPA. The companies made no constitutional claim. A statute specifically provides for direct review of EPA rules by a court of appeals without any initial action in a district court.
The companies have filed a petition for a writ of certiorari in the Supreme Court requesting immediate review of this case by the Supreme Court before the court of appeals has actually decided the case. The EPA acknowledges that the case is important enough to warrant Supreme Court review and that it should be decided promptly, but it asks the Supreme Court to dismiss the petition on jurisdictional grounds.
The best constitutional argument in support of the EPA’s request is that
(A) the case is not within the original jurisdiction of the Supreme Court as defined by Article III, and it is not a proper subject of that court’s appellate jurisdiction because it has not yet been decided by any lower court.
(B) the case is appellate in nature, but it is beyond the appellate jurisdiction of the Supreme Court, because Article III states that its jurisdiction extends only to cases arising under the Constitution.
(C) Article III precludes federal courts from reviewing the validity of any federal agency rule in any proceeding other than an action to enforce the rule.
(D) Article III provides that all federal cases, except those within the original jurisdiction of the Supreme Court, must be initiated by an action in a federal district court.
(A). This case is not on appeal — it got filed directly in the court of appeals, which hasn’t rendered a decision yet. So Congress can’t give the Court jurisdiction on these grounds. The Supreme Court has original jurisdiction in “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party” (really that means when states sue each other). Congress can’t mess with the Court’s original jurisdiction. That’s hard-wired. So Congress can’t give the court jurisdiction to hear this case in the first instance.
A plaintiff has sued a defendant in a court of the state in which both parties reside. The plaintiff alleges only a cause of action arising under a federal statute, although state law provides a similar cause of action. The federal statute provides that claims under the statute can be brought in any court of competent jurisdiction. The statute has not yet been interpreted by any federal court.
Should the state court hear the case?
(A) No, because cases arising under federal law must be decided in federal court.
(B) No, because state courts must abstain in cases arising under federal law until a federal court has decided the federal issue.
(C) Yes, because state courts may not discriminate against cases arising under federal law.
(D) Yes, because the parties cannot proceed in federal court since there is no diversity of citizenship.
(C). State courts can’t refuse to hear claims arising under a fed’l cause of action if there is an analogous cause of action already existing under state law. (Testa v. Katt)
Unlike fed courts, which have limited jdx, state courts can be courts of general jdx, so long as they have jdx over the parties (which they do here). Fed cts don’t have exclusive jdx over fed law questions.
Under the authority of a federal voting rights statute, some states drew congressional districts in a manner calculated to increase the likelihood that members of historically disadvantaged minority racial groups would be elected. The U.S. Supreme Court declared these districts to be unconstitutional, as improper racial gerrymanders.
In response to this ruling, Congress passed a new statute that explicitly denies the Supreme Court appellate jurisdiction over all future cases challenging the constitutionality of action taken under the authority of the federal voting rights statute.
Which of the following is the most persuasive argument for the constitutionality of the new statute restricting the Supreme Court’s appellate jurisdiction?
(A) Article III of the Constitution explicitly states that the Supreme Court’s appellate jurisdiction is subject to such exceptions and regulations as Congress shall make.
(B) The constitutional principle of separation of powers authorizes Congress to pass statutes calculated to reduce the effects of Supreme Court decisions that interfere with the exercise of powers that have been delegated to the legislative branch.
(C) The establishment and apportionment of congressional districts directly affect interstate commerce, and the Constitution authorizes Congress to use its plenary authority over such commerce for any purpose it believes will promote the general welfare.
(D) The Fifteenth Amendment authorizes Congress to enforce the amendment’s voting rights provisions by appropriate legislation, and Congress could reasonably determine that this restriction on the Supreme Court’s appellate jurisdiction is an appropriate means to that end.
(A). Article III Supreme Ct jdx dichotomy: OG jdx and appellate jdx. Congress can limit the latter, but not the former. This is called jdx stripping.
A federal statute requires the National Bureau of Standards to establish minimum quality standards for all beer sold in the United States. The statute also provides that public hearings must precede adoption of the standards, and that once they are adopted, the standards will be subject to judicial review. While the proposed standards have not yet been announced, several Bureau officials have publicly expressed opinions indicating a belief that pasteurized beer is safer than unpasteurized beer. However, these officials have not stated whether they intend to include a pasteurization requirement in the standards. A brewery that produces unpasteurized beer is concerned that, after the appropriate proceedings, the Bureau may adopt quality standards that will prohibit the sale of unpasteurized beer. The brewery has sued in federal district court to enjoin the Bureau from adopting standards that would prohibit the sale of unpasteurized beer.
How should the district court proceed with the suit?
(A) Determine whether the Bureau could reasonably believe that pasteurization is the safest process by which to brew beer and, if so, refuse to issue the injunction against the Bureau.
(B) Determine whether the process used by the brewery is as safe as pasteurization and, if so, issue the injunction against the Bureau.
(C) Refuse to adjudicate the merits of the suit at this time and stay the action until the Bureau has actually issued beer-quality standards.
(D) Refuse to adjudicate the merits of the suit and dismiss it, because it does not involve a justiciable case or controversy.
(D). A brewery is suing to stop regulations that haven’t been written yet. The federal courts lack power to entertain a suit that is not ripe for adjudication, because such a suit does not present a “case” or “controversy” within the meaning of Article III, Section 2, Clause 1 of the Constitution. There is no justiciable case or controversy because the Bureau hasn’t decided if it’s going to prohibit unpasteurized beer yet. If all parties agree, there is nothing for the court to decide. It’s just too early to tell. And unlike answer choice “C,” this answer choice recognizes that an unripe case must be dismissed b/c it would be improper for the ct. to retain control of the suit by staying.
A state law that restricted abortion was challenged in state court as a violation of the due process clause of the Fourteenth Amendment to the U.S. Constitution and as a violation of a similar due process provision of the state constitution. The case made its way to the state’s highest court, which ruled that the law violated the due process provisions of both the U.S. and the state constitutions.
If petitioned to do so, may the U.S. Supreme Court exercise jurisdiction to review the state court decision?
(A) No, because the state court’s decision in this case rests on adequate and independent state law grounds.
(B) No, because the U.S. Supreme Court has appellate jurisdiction only over state court decisions that determine the constitutionality of federal laws.
(C) Yes, because the U.S. Supreme Court has appellate jurisdiction over any ruling of a state’s highest court based on an interpretation of federal law.
(D) Yes, because the U.S. Supreme Court has appellate jurisdiction over decisions that find state laws in violation of the federal Constitution.
(A).
RULE: The U.S. Supreme Court does not have appellate jurisdiction over a decision by the highest court of a state when that decision is supported by state law grounds that are (1) independent of federal law and (2) adequate to sustain the result in the case.
If a state high court decides a matter on both state and federal grounds, and a reversal of the application of the federal law would not change the outcome of the matter, then the U.S. Supreme Court will not hear the appeal. This is referred to as “adequate and independent state grounds.”
Here, the state court has struck down the law on both federal and state grounds. So if this were to go to the U.S. Supreme Court, the Court could reverse the federal grounds for the decision but could not reverse the state’s high court’s interpretation of the state constitution because that would be outside the powers granted to the federal judiciary under Article III, Section 2. That would mean the federal grounds for striking down the law would be reversed but the state grounds would remain and the law would still be struck down. That is an adequate and independent state grounds for the decision and so the U.S. Supreme Court should not hear the case. It does not matter that both the federal and state constitutional provisions are similar.
Congress passed a statute providing that parties could no longer seek review in the U.S. Supreme Court of final judgments in criminal matters made by the highest court in each state.
What is the best argument supporting the constitutionality of the statute?
(A) Congress has the power to make exceptions to the appellate jurisdiction of the Supreme Court.
(B) Criminal matters are traditionally governed by state law.
(C) The proper means of federal judicial review of state criminal matters is by habeas corpus.
(D) The review of state court judgments is not within the original jurisdiction of the Supreme Court.
(A). The Exceptions Clause grants Congress the power to strip the U.S. Supreme Court of its appellate jurisdiction to hear particular types of cases. The limits of this power are not well established in case law.
Assume that Congress passed and the President signed the following statute:
“The appellate jurisdiction of the United States Supreme Court shall not extend to any case involving the constitutionality of any state statute limiting the circumstances in which a woman may obtain an abortion, or involving the constitutionality of this statute.”
The strongest argument against the constitutionality of this statute is that
(A) Congress may not exercise its authority over the appellate jurisdiction of the Supreme Court in a way that seriously interferes with the establishment of a supreme and uniform body of federal constitutional law.
(B) Congress may only regulate the appellate jurisdiction of the Supreme Court over cases initially arising in federal courts.
(C) the appellate jurisdiction of the Supreme Court may only be altered by constitutional amendment.
(D) the statute violates the equal protection clause of the Fourteenth Amendment.
(A). This is a jdx stripping statute that creates a separation of powers problem. Here, the Sup Ct is being denied appellate jdx in abortion cases, which could create big differences in the fed’l ct of appeals and vastly different legal realities. The SC’s ability to address circuit splits is a major part of its job, so this statute is really striking at the heart of what the Sup Ct does in practice.
A man owned a house where he lived with his family. The man was convicted of selling large quantities of an illegal drug from his house. Acting under a state law authorizing the destruction of buildings that are used for illegal activity, the city destroyed the man’s house.
The man’s family then rented an apartment and demanded that the city pay the rent for that temporary residence. The family relied on a state law providing that any person who was dispossessed of his or her place of residence because of the actions of city officials was entitled to replacement housing at the city’s expense until permanent substitute housing could be found. When the city refused to pay the rent for the apartment, the man’s family sued the city in a state trial court claiming a right to such payment under both the state law and the due process clause of the Fourteenth Amendment to the United States Constitution.
The highest state court ruled for the family. Although the court decided that the family had no right to payment under the state law, it held that the Fourteenth Amendment entitled the family to payment of the rent for the temporary apartment. In its opinion, the highest state court indicated that in several of its decisions it had found cities liable for compensation in similar situations on the basis of the due process clause of the state constitution. But the highest state court declined to base its holding on the state constitution because that issue had not been properly raised in the case.
The city then filed a petition for a writ of certiorari in the United States Supreme Court.
Does the Court have jurisdiction to review the merits of this case?
(A) Yes, because the highest state court based its decision wholly on federal law grounds.
(B) Yes, because the federal and state law issues in this case are so intertwined that a resolution of the federal law issues is necessary to facilitate a proper determination of the state law issues.
(C) No, because the decision of the highest state court renders the case moot.
(D) No, because independent state law grounds could have been used to justify the result in this case.
(A) b/c this is a case of fed’l question jdx
Old City police officers shot and killed Jones’s friend as he attempted to escape arrest for an armed robbery he had committed. Jones brought suit in federal district court against the Old City Police Department and the city police officers involved, seeking only a judgment declaring unconstitutional the state statute under which the police acted. That newly enacted statute authorized the police to use deadly force when necessary to apprehend a person who has committed a felony. In his suit, Jones alleged that the police would not have killed his friend if the use of deadly force had not been authorized by the statute.
The federal district court should
(A) decide the case on its merits, because it raises a substantial federal question.
(B) dismiss the action, because it involves a nonjusticiable political question.
(C) dismiss the action, because it does not present a case or controversy.
(D) dismiss the action, because the Eleventh Amendment prohibits federal courts from deciding cases of this type.
(C). This Π lacks standing.
The vaccination of children against childhood contagious diseases (such as measles, diphtheria and whooping cough) has traditionally been a function of private doctors and local and state health departments. Because vaccination rates have declined in recent years, especially in urban areas, the President proposes to appoint a Presidential Advisory Commission on Vaccination which would be charged with conducting a national publicity campaign to encourage vaccination as a public health measure. No federal statute authorizes or prohibits this action by the President. The activities of the Presidential Advisory Commission on Vaccination would be financed entirely from funds appropriated by Congress to the Office of the President for “such other purposes as the President may think appropriate.”
May the President constitutionally create such a commission for this purpose?
(A) Yes, because the President has plenary authority to provide for the health, safety, and welfare of the people of the United States.
(B) Yes, because this action is within the scope of executive authority vested in the President by the Constitution, and no federal statute prohibits it.
(C) No, because the protection of children against common diseases by vaccination is a traditional state function and, therefore, is reserved to the states by the Tenth Amendment.
(D) No, because Congress has not specifically authorized the creation and support of such a new federal agency.
(B). The president doesn’t have to wait for Congress’s directions before taking policy positions on issues like vaccination.
This commission, in particular, is really just doing publicity work—like a roving press conference, almost. It’s funded by Congress, and not forbidden by any existing statutes, so there’s no risk of a separation of powers conflict
A newly enacted federal statute appropriates $100 million in federal funds to support basic research by universities located in the United States. The statute provides that “the ten best universities in the United States” will each receive $10 million. It also provides that “the ten best universities” shall be “determined by a poll of the presidents of all the universities in the nation, to be conducted by the United States Department of Education.” In responding to that poll, each university president is required to apply the well-recognized and generally accepted standards of academic quality that are specified in the statute. The provisions of the statute are inseverable.
Which of the following statements about this statute is correct?
(A) The statute is unconstitutional, because the reliance by Congress on a poll of individuals who are not federal officials to determine the recipients of its appropriated funds is an unconstitutional delegation of legislative power.
(B) The statute is unconstitutional, because the limitation on recipients to the ten best universities is arbitrary and capricious and denies other high quality universities the equal protection of the laws.
(C) The statute is constitutional, because Congress has plenary authority to determine the objects of its spending and the methods used to achieve them, so long as they may reasonably be deemed to serve the general welfare and do not violate any prohibitory language in the Constitution.
(D) The validity of the statute is nonjusticiable, because the use by Congress of its spending power necessarily involves political considerations that must be resolved finally by those branches of the government that are closest to the political process.
(C)
A federal statute enacted pursuant to the powers of Congress to enforce the Fourteenth Amendment and to regulate commerce among the states prohibits any state from requiring any of its employees to retire from state employment solely because of their age. The statute expressly authorizes employees required by a state to retire from state employment solely because of their age to sue the state government in federal district court for any damages resulting from that state action. On the basis of this federal statute, Retiree sues State X in federal district court. State X moves to dismiss the suit on the ground that Congress lacks authority to authorize such suits against a state.
Which of the following is the strongest argument that Retiree can offer in opposition to the state’s motion to dismiss this suit? [OUT-DATED, so no answer is perfect]
(A) When Congress exercises power vested in it by the Fourteenth Amendment and/or the commerce clause, Congress may enact appropriate remedial legislation expressly subjecting the states to private suits for damages in federal court.
(B) When Congress exercises power vested in it by any provision of the Constitution, Congress has unlimited authority to authorize private actions for damages against a state.
(C) While the Eleventh Amendment restrains the federal judiciary, that amendment does not limit the power of Congress to modify the sovereign immunity of the states.
(D) While the Eleventh Amendment applies to suits in federal court by citizens of one state against another state, it does not apply to such suits by citizens against their own states.
(A). Not totally clear Congress can do this b/c age is not a suspect class…
(B) is wrong b/c Congress generally can’t do this (private damages) unless acting under Art V specific rules. They’d need a basis for getting around sovereign immunity.
The United States Department of the Interior granted Concessionaire the food and drink concession in a federal park located in the state of New Senora. Concessionaire operated his concession out of federally owned facilities in the park. The federal statute authorizing the Interior Department to grant such concessions provided that the grantees would pay only a nominal rental for use of these federal facilities because of the great benefit their concessions would provide to the people of the United States.
The legislature of the state of New Senora enacted a statute imposing an occupancy tax on the occupants of real estate within that state that is not subject to state real estate taxes. The statute was intended to equalize the state tax burden on such occupants with that on people occupying real estate that is subject to state real estate taxes. Pursuant to that statute, the New Senora Department of Revenue attempted to collect the state occupancy tax from Concessionaire because the federal facilities occupied by Concessionaire were not subject to state real estate taxes. Concessionaire sued to invalidate the state occupancy tax as applied to him.
The strongest ground upon which Concessionaire could challenge the occupancy tax is that it violates the
(A) commerce clause by unduly burdening the interstate tourist trade.
(B) privileges and immunities clause of the Fourteenth Amendment by interfering with the fundamental right to do business on federal property.
(C) equal protection of the laws clause of the Fourteenth Amendment because the tax treats him less favorably than federal concessionaires in other states who do not have to pay such occupancy taxes.
(D) supremacy clause of Article VI and the federal statute authorizing such concessions.
(D). The supremacy clause says that fed’l law prevails over state laws to the contrary. The fed’l statute here says grantees would pay only a nominal rental for use of fed’l facilities. This is a fed’l statute regulating fed’l employees on fed’l land.
The power to tax involves the power to destroy; the supremacy clause doesn’t allow states to do that to fed. (McCulloch v. Maryland)
A federal statute provides states with funds for child welfare programs, subject to the condition that such programs be administered in accordance with federal standards. The United States sued a state in federal court for injunctive relief, arguing that the state’s child welfare programs, which were funded in part by federal funds disbursed under this statute, failed to comply with federal standards. The state has moved to dismiss the action.
Is the court likely to dismiss the action?
(A) No, because Congress can place any condition on the receipt of federal funds.
(B) No, because the Eleventh Amendment does not bar actions brought by the United States.
(C) Yes, because the Eleventh Amendment bars actions against a state in federal court.
(D) Yes, because the protection of child welfare is reserved to the states.
(B).
(A) explanation: Sometimes the fed regulates directly via enumerated powers (e.g. commerce clause), but on some issues that don’t fall w/in the bounds of those powers, the fed can use spending power to incentivize states to regulate with fed’l funding. Conditional fed’l funding is not unlimited. It (1) must serve the general welfare, (2) must be unambiguous, (3) must relate to the particular fed’l program, (4) can’t force states to behave unconst’lly, and (5) can’t be coercive.
A federal statute requires any individual or entity owning more than 100 cars to ensure that at least 10 percent of those cars are electric-powered.
A city has sued the federal official responsible for enforcing this statute in federal district court, seeking an injunction prohibiting enforcement of the statute on the ground that it is unconstitutional.
Should the court grant the injunction?
(A) No, because the statute is valid under the commerce clause and does not violate the Tenth Amendment.
(B) No, because the federal government has sovereign immunity and cannot be sued without its explicit consent.
(C) Yes, because the statute violates the reserved rights of the states under the Tenth Amendment.
(D) Yes, because as applied to state and local governments, the statute exceeds Congress’s power under the commerce clause.
(A). The federal government may regulate a state’s commercial activity if it does not commandeer the state to regulate the conduct of others or coerce a state into action that the federal government could not directly compel.
Here, the federal government is making a direct demand on the both private actors and states that a percentage of some auto fleets must be electric. Importantly for the Tenth Amendment, the federal government is not requiring the state to enforce this law on its citizens; rather, the federal government is directly imposing this regulation on citizens and states alike. That means the federal government is not commandeering the state. Also, since this is an unproblematic example of Congress’ power to regulate commerce, there is no concern that Congress is attempting to make states do something that the federal government couldn’t otherwise compel them to do. The federal government has the power to enact and enforce a requirement that 10% of cars purchased for a commercial fleet must be electric.
A state generally provides funding for the medical care of its residents who cannot afford such care. State law, however, prohibits use of this state funding for surgery for any person who has resided in the state for less than one year, except in emergency situations.
A woman moved to the state two months ago seeking permanent employment. Her physician recommends non-emergency surgery to treat a medical condition. The surgery would qualify for state funding if the woman had resided in the state for a year. The woman has sued to invalidate the state law that prohibits state funding of her surgery.
Should the woman prevail in her action?
(A) No, because the law reasonably conserves the state’s limited resources.
(B) No, because the law reasonably prevents the expenditure of state funds on transient nonresidents.
(C) Yes, because the law burdens the woman’s fundamental right to health care.
(D) Yes, because the law burdens the woman’s fundamental right to travel.
(D) US citizens have a const’l right to travel from one state to another and, upon arrival, be treated on equal terms with that state’s citizens.
Saenz v. Roe (1999) (finding unconstitutional a California law that limited the welfare benefits available to new arrivals in the state for the first year that they lived in CA).
A state owned and operated an electric power system, which included a nuclear power plant.
In order to ensure the availability of sites for the disposal of spent fuel from the nuclear power plant, the state refused to supply electric power to out-of-state purchasers residing in states that would not accept spent fuel from the plant for storage or disposal.
Assume that no federal statute applies.
Which of the following is the strongest argument that the state’s action is constitutional?
(A) A state may condition the sale to out-of-state purchasers of any products produced in that state on the willingness of those purchasers to bear the fair share of the environmental costs of producing those products.
(B) The generation of electricity is intrastate by nature and therefore subject to plenary state control.
(C) The state itself owns and operates the power system, and therefore its refusal to supply power to out-of-state purchasers is not subject to the negative implications of the commerce clause.
(D) The state’s action is rationally related to the health, safety, and welfare of state citizens.
(C). This is the market participant except to DCC problems.
A federal statute established a national lottery and created a new federal agency to administer it. In order to sell lottery tickets directly to the public, the agency established outlets throughout the country, including in a particular state. The state levies a general tax on the gross receipts from all gaming operations within the state. The state seeks to tax the agency on the sales of lottery tickets from its outlets within the state.
Must the agency pay the state gross receipts tax?
(A) No, because a federal agency may not pay any monies to a state without explicit federal statutory authorization to do so.
(B) No, because a state may not impose a tax directly on the federal government or any of its agencies or instrumentalities.
(C) Yes, because it is a generally applicable tax that does not discriminate against the agency.
(D) Yes, because the federal government is not exempt from state taxation on its commercial activities.
(B). power to fed tax → power to destroy fed => violates Supremacy Clause
According to a state law, state employees may be fired only “for good cause.” A woman who was both a resident and an employee of the state was summarily fired on the sole ground that she had notified federal officials that the state was not following federal rules governing the administration of certain federally funded state programs on which she worked. The state denied the woman’s request for a hearing to allow her to contest the charge. There is no record of any other state employee having been terminated for this reason.
In a suit to reinstate her employment, which of the following claims provides the LEAST support for the woman?
(A) The state’s firing of her unconstitutionally abridged her freedom of speech.
(B) The state’s firing of her unconstitutionally denied her a privilege or immunity of state citizenship protected by Article IV.
(C) The state’s firing of her violated the supremacy clause of Article VI, because it interfered with the enforcement of federal rules.
(D) The state’s firing of her without affording her an opportunity for a hearing was an unconstitutional denial of procedural due process.
(B) raises the Privileges and Immunities Clause, under which a state may not enact any law that discriminates against people who live in other states, or who have arrived from another state, unless (1) the individuals suffering the discrimination are connected to the problem the law intends to solve and (2) there is no less-restrictive means to solve the problem. Here, there is nothing in the fact pattern involving people who live in other states or who have arrived from another state. Because this would appear to be a frivolous claim, this is the right answer choice.
A state law prohibits the withdrawal of groundwater from any well within the state for use in another state. The express purpose of the law is to safeguard the supply of water for state citizens. Adoption of this state law followed enactment of a federal statute providing that “the transport of groundwater from one state to another may be restricted or prohibited in accordance with the laws of the state in which the water originates.”
An association of water users in a neighboring state has filed suit to have the state law declared unconstitutional and enjoined on the ground that it violates the negative implications of the commerce clause.
Which of the following is the best argument supporting a motion to dismiss the lawsuit?
(A) The law promotes a compelling state interest that outweighs any burden on interstate commercial activity that might result from this state regulation of its groundwater.
(B) Groundwater located within a state is not itself an article of interstate commerce, and therefore state regulation of the withdrawal of such groundwater does not implicate the commerce clause.
(C) The Tenth Amendment reserves to the states plenary authority over the regulation of the natural resources located within their respective borders.
(D) The federal statute explicitly consents to a state’s regulation of its groundwater in a way that would otherwise violate the negative implications of the commerce clause.
(D) because the DCC does not apply to a state law that is permitted by Congress. That makes it non-dormant.
According to the negative implications of the Commerce Clause (the Dormant Commerce Clause), a state law may not discriminate against or unduly burden interstate commerce unless (1) Congress has enacted a statute authorizing the state regulation at issue, or (2) the law satisfies a legitimate state interest and there are no nondiscriminatory alternatives to serve that interest.
The state of Atlantica spends several million dollars a year on an oyster conservation program. As part of that program, the state limits, by statute, oyster fishing in its coastal waters to persons who have state oyster permits. In order to promote conservation, it issues only a limited number of oyster permits each year. The permits are effective for only one year from the date of their issuance and are awarded on the basis of a lottery, in which there is no differentiation between resident and nonresident applicants. However, each nonresident who obtains a permit is charged an annual permit fee that is $5 more than the fee charged residents.
Fisher, Inc., is a large fishing company that operates from a port in another state and is incorporated in that other state. Each of the boats of Fisher, Inc., has a federal shipping license that permits it “to engage in all aspects of the coastal trade, to fish and to carry cargo from place to place along the coast, and to engage in other lawful activities along the coast of the United States.” These shipping licenses are authorized by federal statute. Assume no other federal statutes or administrative rules apply.
Although it had previously held an Atlantica oyster permit, Fisher, Inc., did not obtain a permit in that state’s lottery this year.
Which of the following is the strongest argument that can be made in support of a continued right of Fisher, Inc., to fish for oysters this year in the coastal waters of Atlantica?
(A) Because the Atlantica law provides higher permit charges for nonresidents, it is an undue burden on interstate commerce.
(B) Because the Atlantica law provides higher permit charges for nonresidents, it denies Fisher, Inc., the privileges and immunities of state citizenship.
(C) Because it holds a federal shipping license, Fisher, Inc., has a right to fish for oysters in Atlantica waters despite the state law.
(D) Because Fisher, Inc., previously held an Atlantica oyster permit and Atlantica knows that company is engaged in a continuing business operation, the refusal to grant Fisher, Inc., a permit this year is a taking of its property without due process of law.
(C).
(A) and (B) DCC analyses are getting at something, but the state interest is strong and may pass court analysis. And the note that no fed’l stats or admin rules apply is a hint that it won’t qualify for that exception.
Widgets are manufactured wholly from raw materials mined and processed in the state of Green. The only two manufacturers of widgets in the United States are also located in that state. However, their widgets are purchased by retailers located in every state. The legislature of the state of Green is considering the adoption of a statute that would impose a tax solely on the manufacture of widgets. The tax is to be calculated at 3% of their wholesale value.
Which of the following arguments would be LEAST helpful to the state in defending the constitutionality of this proposed state tax on widgets?
(A) At the time widgets are manufactured and taxed they have not yet entered the channels of interstate commerce.
(B) The economic impact of this tax will be passed on to both in-state and out-of-state purchasers of widgets and, therefore, it is wholly nondiscriminatory in its effect.
(C) Because of the powers reserved to them by the Tenth Amendment, states have plenary authority to construct their tax system in any manner they choose.
(D) A tax on the manufacture of widgets may be imposed only by the state in which the manufacturing occurs and, therefore, it is not likely to create the danger of a multiple tax burden on interstate commerce.
(C) It’s true that states can construct their own tax systems, but definitely not ‘in any manner they choose.’ That’s what DCC is all about. The states taxing powers—like all of its powers—are residual.
(A) isn’t terrible — this is a manufacturing tax, not a sales tax, so maybe the ct would consider it an indirect burden
(B) is strong and would likely pass Pike balancing
(D) I.e., this tax wouldn’t put interstate businesses at risk of multiple tax burdens
The legislature of the state of Chetopah enacted a statute requiring that all law enforcement officers in that state be citizens of the United States. Alien, lawfully admitted to permanent residency five years before the enactment of this statute, sought employment as a forensic pathologist in the Chetopah coroner’s office. He was denied such a job solely because he was not a citizen.
Alien thereupon brought suit in federal district court against appropriate Chetopah officials seeking to invalidate this citizenship requirement on federal constitutional grounds.
The strongest ground upon which to attack this citizenship requirement is that it
(A) constitutes an ex post facto law as to previously admitted aliens.
(B) deprives an alien of a fundamental right to employment without the due process of law guaranteed by the Fourteenth Amendment.
(C) denies an alien a right to employment in violation of the privileges and immunities clause of the Fourteenth Amendment.
(D) denies an alien the equal protection of the laws guaranteed by the Fourteenth Amendment.
(D). Alienage is a suspect classification that would typically trigger strict scrutiny. However, the political function exception applies if the alienage-based restriction is bound up with the operation of the state as a governmental entity.
(Note that this exception is not all encompassing (e.g., state can’t require that notaries be citizens — this may be similar to forensic pathologist job, but still the strongest answer).
WRONG ANSWERS:
(A) this mischaracterizes the prohibition against ex post facto criminal sanctions
(B) is wrong b/c there is no fund’l right to employment.
(C) 14th Amendment privileges or immunities clause only covers rights deriving from fed’l citizenship
Company wanted to expand the size of the building it owned that housed Company’s supermarket by adding space for a coffeehouse. Company’s building was located in the center of five acres of land owned by Company and devoted wholly to parking for its supermarket customers.
City officials refused to grant a required building permit for the coffeehouse addition unless Company established in its store a child care center that would take up space at least equal to the size of the proposed coffeehouse addition, which was to be 20% of the existing building. This action of City officials was authorized by provisions of the applicable zoning ordinance.
In a suit filed in state court against appropriate officials of City, Company challenged this child care center requirement solely on constitutional grounds. The lower court upheld the requirement even though City officials presented no evidence and made no findings to justify it other than a general assertion that there was a shortage of child care facilities in City. Company appealed.
The court hearing the appeal should hold that the requirement imposed by City on the issuance of this building permit is
(A) constitutional, because the burden was on Company to demonstrate that there was no rational relationship between this requirement and a legitimate governmental interest, and Company could not do so because the requirement is reasonably related to improving the lives of families and children residing in City.
(B) constitutional, because the burden was on Company to demonstrate that this requirement was not necessary to vindicate a compelling governmental interest, and Company could not do so on these facts.
(C) unconstitutional, because the burden was on City to demonstrate that this requirement was necessary to vindicate a compelling governmental interest, and City failed to meet its burden under that standard.
(D) unconstitutional, because the burden was on City to demonstrate a rough proportionality between this requirement and the impact of Company’s proposed action on the community, and City failed to do so.
(D). This is an exaction (takings context), and a Nollan/Dolan scenario.
Rule: An adjudicative exaction requiring dedication of private property must be roughly proportional both in nature and extent to the impact of the proposed development.
Application: So the city must show “rough proportionality” between the requirement (the child care center) and the impact on the city. But the city utterly failed to do that, since the only evidence put forward was that the city needed more child care facilities.
