CON LAW

Question 1

What are the types of scrutiny applied in Free Exercise cases?

Answer 1

(1) lower scrutiny: if law is facially-neutral and generally applicable (law is generally upheld) and (2) strict scrutiny: if there is government intent to interfere OR another fundamental right is being infringed (e.g. right to control kiddos’ education)

Question 2

How do you determine whether an Establishment Clause violation has occurred?

Answer 2

First, run the Lemon test: (1) was the primary purpose religious? (2) was the primary effect to inhibit religion, and (3) does the law pro most gov’t entanglement? Second, consider whether it just generally looks like the gov’t is endorsing a religion? Last, if it deals with a public display ask about its history and context (Van Orden)

Question 3

A law restricting speech is content neutral. What’s the next question in your inquiry?

Answer 3

Is it made in a public forum (street, sidewalk, park) or a private forum (private residences, airports, jails, military basis)?

Question 4

A law restricting speech is content neutral in a public forum. What level of scrutiny will be applied?

Answer 4

This is a form of intermediate scrutiny: ““Narrowly tailored to advance a significant interest.” Note that the law must also leave open alternative channels of communication.

Question 5

A law restricting speech is content neutral in a private forum. What level of scrutiny will be applied?

Answer 5

Rational basis: does the law bear a rational relationship to a legitimate gov’t interest (almost impossible to fail)? Note that the law must also be viewpoint and subject matter neutral.

Question 6

A law restricting speech is content specific. What’s the next question in your inquiry?

Answer 6

Does this law pertain to protected or unprotected speech?

Question 7

A law restricting speech is content specific and pertains to unprotected speech. How does it pass constitutional muster?

Answer 7

Unprotected speech is not speech. It’s not afforded any legal protection whatsoever.

Question 8

What are the types of unprotected speech?

Answer 8

Defamation, Fighting Words, Commercial Speech, Obscenity, Kiddie Porn, Inciting unlawfulness, Criminal Conduct

Question 9

In a defamation case involving a public figure and public subject matter, what’s the standard?

Answer 9

Burden of proof is on the plaintiff to show (1) falsity of the statement and (2) malice by the D.

Question 10

In a defamation case involving a private figure and public subject matter, what is the standard?

Answer 10

Burden of proof is on the plaintiff to show (1) falsity of the statement and (2) negligence by the defendant

Question 11

In a defamation case involving a public figure and a private subject matter, what is the standard?

Answer 11

The burden of proof is on the defendant to show truth of the statement - almost presumptive defamation (falsity + negligence are all that is required). Damages presumed.

Question 12

In a defamation case involving a private figure and private subject matter, what’s the standard?

Answer 12

Damages are presumed and the burden of proof is on D to show truth of the statements (only a few jurisdictions put burden of proof on P)

Question 13

Anystate, USA passes a law requiring anyone who moves into the state be financially self-sufficient. What is the proper analysis to be used by the court?

a) any restrictions on travel are unconstitutional
b) the law must be rationally related to a legitimate gov’t interest
c) the law must be narrowly tailored to achieve a compelling gov’t interest
d) the law must be substantially related to an important gov’t interest

Answer 13

b) economic status is not a suspect or quasi-suspect class.

Question 14

Procedural due process is not required when the state deprives a person of:

a) welfare benefits
b) public education
c) employment
d) the right to engage in gainful employment

Answer 14

c) because the right to engage in gainful employment is a protected liberty interest, and a and b are property interests

Question 15

Which of the following is not an example of excessive gov’t entanglement in religion?

a) allowing a church to veto the issuance of liquor licenses
b) allowing a church to install a nativity scene in a city building
c) gov’t aid given solely to religious preschools
d) a law requiring businesses be closed on sundays

Answer 15

d) all the others ARE examples of excessive entanglement

Question 16

To whom does the Contracts Clause apply?

Answer 16

The states, NOT THE FEDS!

Question 17

Under the 1st Amendment, burning a voter registration card is likely:

a) unprotected, because it is not speech
b) protected
c) unprotected, because it is intentional destruction of an important gov’t document
d) unprotected, if the gov’t can show a rational basis for prohibiting their destruction

Answer 17

b) (this restriction would only be valid if necessary for a compelling gov’t interest)

Question 18

A loyalty oath as a precondition for public employment is:

a) always unconstitutional
b) constitutional if it is an oath to oppose the violent overthrow of the gov’t
c) constitutional only if it does not involve religious language
d) always constitutional

Answer 18

b) to prevent overthrow or to uphold is constitutional - ALL OTHERS ARE NOT!

Question 19

When can private actors be considered “state actors” for 14th Amendment purposes? (4)

Answer 19

PMSS - Public function, mutual contacts (like private contractor/living in a gov’t building), State court enforces a private agreement, State command/encouragement

Question 20

Does the 1st Amendment have a state action requirement?

Answer 20

Yup!

Question 21

Candice is 4 weeks preggers and wants an abortion. She lives on an island as part of the State of Tropicana, which criminalizes getting an abortion from anyone other than a licensed physician. There are no physicians on her island and it would cost $125 to get to the main land, which she cannot afford. She attacks the constitutionality of the statute and seeks assistance getting onto the mainland. Likely outcome?

a) criminal statute is a facially unconstitutional violation of due process rights
b) statute violates the contracts clause
c) not getting C to the mainland would violate DP and EPC
d) statute is a facially constitutional exercise of police power

Answer 21

D) is the best answer because states can regulate for health/safety. Cannot “unduly” limit access to an abortion but there is no due process right to getting one!

Question 22

D was convicted of his 3rd rape offense in 1989 and sentenced to prison. In 1990, the state legislature passed a law authorizing the civil commitment of sex offenders. Upon his release in 1995, he was subjected to a proceeding for being a sexually violent predator (counsel was provided and a jury heard his case). He was civilly committed indefinitely. Upon his writ of habeas, the federal court will likely:

a) make him stay, because the state has a compelling interest in protecting the community
b) release him because of due process violation
c) release him for an ex post facto violation
d) release him for double jeopardy violation

Answer 22

A) - in a civil case, neither double jeopardy nor ex post facto apply. And he was granted due process!

Question 23

City A passes a gun ordinance prohibiting private ownership of a long list of guns. What is the best characterization of the ordinance?

a) unconstitutional, violates 2nd Amendment
b) unconstitutional as a violation of Privileges of national citizenship
c) constitutional as an exercise of police power
d) constitutional under Sec. 5 of 14th Amendment

Answer 23

c). cities and states may regulate guns to protect the public. 2nd Amendment restricts the federal government, not the states!

Question 24

Congress adopted a statute years ago providing financial aid for colleges. Recently it changed to add that colleges receiving federal aid need to offer that aid to students solely on the basis of need. What source of federal power authorizes the statute?

a) police power
b) power to enforce the EPC
c) power to tax and spend for general welfare
d) power to enforce P&I clause

Answer 24

c! Remember THERE IS NO FEDERAL POLICE POWER! And neither either power is brought up by these facts (says Rigos book)

Question 25

State A passed a statute providing for the incarceration of any person with AIDS, regardless of whether that person has engaged in criminal activity, in a special state facility. The incarceration occurs after a full, adversarial trial results in a judicial determination that the person suffers from AIDS. The statute also provides for an attorney for indigent persons, and an appeal as a matter of right. The statute is:

a) Unconstitutional, denial of due process
b) unconstitutional, denial of right to trial by jury
c) constitutional, as a health and safety measure.
d) unconstitutional, denial of equal protection

Answer 25

a - this is a liberty interest and not the least restrictive means to serve the state’s interest

Question 26

To whom does the 2nd Amendment apply?

Answer 26

The federal government - not the states!

Question 27

What statement best describes an executive order made by the President banning certain exports, if he does so with Congressional authority?

a) Executive order is a constitutional exercise of the President’s inherent power to conduct foreign affairs
b) The executive order is constitutional because Congress has plenary power to regulate commerce with foreign nations and authorized the President to issue orders
c) Executive order is unconstitutional if it interferes with existing contracts under the contracts clause.

Answer 27

b) - Congress does have this plenary power and it CAN delegate to the Prez.
a) isn’t the best because the President’s foreign affairs powers are not inherent but largely delegated by Congress.

Question 28

Congress passes a tax increasing the estate tax substantially. What is the likely result if the Court reviews the constitutionality of the tax?

a) Constitutional if the dominant intent was fiscal
b) constitutional, because Congress has the power to tax the estates of persons
c) Unconstitutional if the revenue does not outweigh the burden on the estate

Answer 28

a) Courts defer to Congress if the intent of the tax is to produce revenue.

Question 29

If a state statute disproportionately protects the state and penalizes other states in regards to an entire industry, what kind of scrutiny is applied to the statute?

Answer 29

The statute is almost per se invalid unless (1) there are no other means to advance a legitimate state interest and/or (2) the state could be a market participant (e.g. a buyer and seller of goods) in the market and the DCC would not apply.

Question 30

Congress passes a bonkers Amendment to the federal tax code. The amendment creates a hyper-specific tax deduction for twin brothers inheriting certain land while 38 and having brown hair. Earnest and Julio Gallon met all these bonkers requirements and inherit their dad’s wine company during the year that the deduction is in effect. John Crest, a competitor of the Gallons business, files a declaratory judgement in federal court to have the tax law declared unconstitutional. What is the likely outcome?

a) the court will declare the amendment an unconstitutional bill of attainder.
b) the court will declare the deduction unconstitutional as not rationally related to a legit. gov’t interest
c) the court will declare the deduction a constitutional exercise of the tax power
d) the court will not hear John’s case on the merits.

Answer 30

d) John has no standing, yo! Federal taxpayers generally do not have standing on those grounds alone.

Question 31

State B’s legislature passes a law saying if state elementary school teachers teach about G. Washington, then they also have to teach about Moses (from the Bible. Heard of him?). What is the likely result if the constitutionality of the law is challenged?

a) unconstitutional: violates the free exercise clause
b) constitutional, unless no secular purpose
c) Unconstitutional, because the teachers cannot be forced to teach an idea
d) constitutional if applied generally to both public and private schools.

Answer 31

b) this is the best answer because the allegation is that the state is trying to prefer one religion over the other (establishment clause problem). It appears to satisfy the Lemon test (secular, primary effect, no entanglement)… c) is wrong because this presents an establishment clause problem, not a free speech problem!

Question 32

The ALCU files a suit in federal court to enjoin the FDA from conducting seizures of genetically modified crops. The FDA has been directed by Congress to “regulate” GMOs and has been given standards/directives. The FDA has the authority to pass a regulation but has not yet done so. What will the court likely do?

a) Dismiss, because the FDA has not passed a rule
b) abstain from ruling but retain jurisdiction over the case
c) enjoin the FDA from making an unconstitutional rule
d) dismiss because of the 11th Amendment

Answer 32

a) This case is not yet ripe: no imminent injury exists (the FDA could always pass a constitutional regulation). b) is incorrect because abstention relates to federal courts abstaining from state court prosecutions/issues of undecided state law

Question 33

Congress passes a statute saying that no federal court, including the Supreme Court, shall have jurisdiction to decide any case involving the constitutionality of laws limiting the rights of children under 15 to obtain an abortion without parental consent. If properly challenges, the statute would be:

a) constitutional because of the plenary power of Congress to determine jurisdiction of the federal courts
b) Constitutional because a series of Supreme Court decisions have upheld the constitutionality of similar statutes
c) unconstitutional because Congress cannot regulate the jurisdiction of the Supreme Court
d) Unconstitutional because Congress cannot preclude an entire class of cases from judicial review

Answer 33

d) The Supreme Court is the final interpreter of the constitution and Congress may not exclude an entire class of cases from all judicial review. *B) is incorrect because, despite Congress’s broad power to regulate fed court jurisdiction, it may not use it to effectively overrule a Supreme Court decision

Question 34

In a case where one state is a party, is there mandatory original supreme court jurisdiction? Ignoring 11th Amendment issues (assume its been waived)…

Answer 34

No. The Supreme Court has original jurisdiction over controversies between two states. A one-state show would have concurrent jurisdiction in a federal district court.

Question 35

If a state sues in parens patriae, what does that mean and is there still original supreme court jurisdiction?

Answer 35

Parens patriae means the state is suing on behalf of its citizens where there is a separate sovereign injury/interest. This derivative standing gets the state into federal court but NOT to original supreme court jurisdiction.

Question 36

Which of the following cases is least likely to be heard by the U.S. Supreme Court’s original jurisdiction?

a) Washington v. Oregon, over which state breached its duty to prevent a forest fire
b) NY v. NJ, over which state owns part of an island
c) Texas v. U.S. regarding a state challenge to an executive order reducing federal funding to a highway
d) California v. U.S. regarding state citizens’ interest in continued diplomatic ties with Japan.

Answer 36

d) Here, California is asserting the rights of its citizens rather than a right of its own (parens patriae). Furthermore it’s probably a political question.

Question 37

State M operates a power plant that uses river water for cooling. The power plant discharges the water back into the river at 10 degrees warmer than it was before. This has adversely affected the business of a downstream ice-cutting operator, North Pole, in State V. At North Pole’s urging, State V sues State M in the U.S. Supreme Court, alleging damage to its environment and seeking an injunction. The U.S. Supreme Court should:

a) dismiss the suit because it is barred by the 11th Amendment
b) hear the matter on the merits because valley is suing in its own right and jurisdiction is proper
c) dismiss the action because it does not have original jurisdiction
d) hear the matter on the merits because Valley is suing in parens patriae

Answer 37

a). this is REALLY a suit between North Pole (a business) and state M. N.P is barred by the 11th Amendment from suing the state in federal court. State V hasn’t alleged an injury in fact.

Question 38

The town of A has enacted a zoning ordinance that restricts ll land in the town to single-family residences that can only be constructed on lots with certain specifications. An out-of-state developer who plans to build townhouses in town A has brought suit in federal court to enjoin the operation of the statute. Which is the WEAKEST argument for the city if it triads to obtain a dismissal before trial on the merits?

a) The case is moot
b) there is no case or controversy
c) the P lacks standing
d) the issues are not ripe

Answer 38

a) mootness is a case brought too late, but this is a case brought too early (which all of the other three answers get at)

Question 39

Pursuant to a state enabling statute, the city of E enacted rent control via an ordinance affecting all residential buildings with 10+ dwelling units. as of the effective date of the ordinance, the maximum rent allowed was the rent period charged on that dwelling unit one year prior to the effective date of the statute. L had entered into a 2-year lease with T 6 months prior to the effective date at a rental rate higher than was charged one year prior to the effective date. If L challenges the constitutionality of the ordinance, his most effective argument will be that it:

a) impairs the obligation of contract
b) violates the DP clause because it is retroactive
c) violates the EPC because it treats large landlords differently than small
d) violates the DP clause because rent was controlled without giving him a hearing

Answer 39

a) this is the best answer because the ordinance impairs the obligation of T to L on a contract in existence on its effective date even though the state would merely need to show that it is a reasonable action furthering a legitimate interest. but the contracts clause argument is still a little better than EPC. *note that a hearing is not necessary under DP for generally applicable laws

Question 40

To whom does the Contracts Clause apply, and what must it/they show in order to survive constitutional scrutiny?

Answer 40

The states, not the federal government. The state must only demonstrate that the law in question is a “reasonable action furthering a legitimate gov’t interest” even if it impairs contracts already in existence.

Question 41

A lady goes on television and answers some detailed questions about her boobs. The FCC issues a letter of reprimand to the TV station and the station appeals. What is the strongest argument to uphold the FCC’s action?

a) the material present on the show was obscene and so not protected by the 1st Amendment
b) the pervasive nature of television makes it likely that a show scheduled at that hour will reach an immature audience who the gov’t has the right to protect
c) the airwaves are public property, so the gov’t may regulate broadcasts under the police power
d) the show was staged for the purpose of raising revenue and is therefore commercial speech and subject to reasonable regulation

Answer 41

b) the federal gov’t has broader discretion to regulate broadcast media and can regulate the use of the airwaves to protect kiddos. This is not so bad as to be obscene speech, there is no federal police power, and the speech was not commercial.

Question 42

State A just enacted a statute that charges $5 per year for instate fishing licenses and $500 for out-of-state residents. P is a commercial salmon fisherman from state B who fishes in state A. If P challenges the statute under the P & I clause of Article IV, the Court would find:

a) the statute is constitutional because the state has a proprietary interest in the fish within its borders and therefore may discriminate against nonresidents
b) it was constitutional because no fundamental interest was infringed
c) it is unconstitutional discrimination against nonresidents because it does not bear a substantial relationship to the fact that there is a limited number of salmon
d) it is unconstitutional because a state may not deny an alien a livelihood unless that action is necessary to satisfy a compelling state need

Answer 42

c) the state must show a substantial relationship for discrimination against out-of-state residents under the P&I clause. *earning a living IS a fundamental interest, distinct from recreational fishing. however, the standard is not strict scrutiny for P&I analysis like stated in d)

Question 43

The ACLU convinces a criminal defendant to appeal his conviction. Does it matter whether the ACLU would have standing?

Answer 43

No. Because it’s the defendant actually doing the litigating!

Question 44

State G has an antiquated statute making it illegal to use contraceptives (passed the year that condoms were invented). But the state hasn’t prosecuted anyone under it in 80 years and condom sales are booming. Bill and Sally are married in state G. Bill wants to sue in federal court alleging that this contraceptive law is unconstitutional. What is the likely outcome?

a) Dismiss the case, as the outcome would have no practical legal effect
b) dismiss the case because Bill doesn’t have standing
c) Dismiss the case as a violation of the 11th Amendment
d) hear the case on its merits and find the law unconstitutional

Answer 44

a) it is moot,

Question 45

State of I requires a license for those who engage in the trade of barbering. It grants licenses to those who (1) graduate from an in-state barber school, (2) reside in the state for 2 years, and (3) are U.S. citizens. The requirement that a license applicant have graduated from school in-state is likely:

a) Constitutional because barbering is a privilege not a right
b) Constitutional because the state does not know the quality of barber schools out of the state
c) unconstitutional because it is a violation of the P or I clause (14th Amendment)
d) unconstitutional as an undue burden on interstate commerce

Answer 45

d) - this is not the least restrictive means of accomplishing the state interest so it fails DCC scrutiny. (which is also why B is wrong) *remember the distinction between P&I and P or I

Question 46

Are wild animals able to be regulated under the commerce clause? In other words… under what Congressional Power was the Endangered Species Act passed?

Answer 46

Yes - wild animals are considered to be in “interstate commerce” because they cross state lines. Remember that the necessary and proper clause only pertains to enumerated powers, it is not a power in and of itself!

Question 47

How much notice is required for procedural due process?

Answer 47

Reasonably calculated under the circumstances… but ACTUAL notice is required (not constructive).

Question 48

How does an “at-will” employment statute affect property interest in a government job?

Answer 48

The at-will statute negates the property interest in the job (unless the position is tenured).

Question 49

Dude is protesting capitalism. Desecrates a U.S. flag by shooting it with a gun. What’s the deal?

a) freedom of speech is fundamental and includes the right to be heard… so getting people’s attention with a gun was a protected exercise of 1st Amendment rights
b) He can be prosecuted for shooting but not for desecrating the flag since it is protected speech. The discharge of a firearm is not protected speech because of public safety concerns (rational basis for gov’t ban).
c) he can be prosecuted for the flag desecration but not the discharging of the gun
d) He may be prosecuted for both.

Answer 49

b) - Desecrating a U.S. flag is a protected form of speech, but the method may be prohibited if there is a rational basis in protecting public safety

Question 50

Is atheism a religious belief protected by the 1st Amendment?

Answer 50

Yup!

Question 51

What kind of suit is barred by the 11th Amendment? In other words, where can a state not be sued by citizens?

Answer 51

The 11th Amendment bars suit in federal court, but NOT in state courts!

Question 52

Dandruff owns a beauty shop which employs only male hairdressers and caters only to female customers. An ordinance of the City of Tinsel makes it unlawful for any person to operate a hairdressing salon catering to female customers if the hairdressers are male. Dandruff brings an action in federal court challenging the constitutionality of the ordinance. If the D city moves to dismiss the lawsuit on the grounds that Dandruff lacks standing, the city would:

a) prevail because the ordinance does not prohibit the operation of beauty salons per se, but only the right of the male customers to service female customers
b) prevail because only the employees can raise their rights of association
c) not prevail because the employees and beauty salon operators have rights that are harmed by the ordinance
d) Not prevail because the ordinance prevents the employees from exercising their First Amendment rights

Answer 52

c) This question is about STANDING, which Dandruff and his employees have (they are harmed by the ordinance). The answers pertaining to rights of association/1st Amendment rights get to the merits and are not even the most compelling arguments for Dandruff to assert

Question 53

Smith, a citizen of England, operates an adult theater that shows films that are obscene in the constitutional sense. Pursuant to a narrowly-drawn statute, Smith is prosecuted in state court for the exhibition of an obscene motion picture, and asserts as a defense the right of privacy. Which of the following best explains the effectiveness of his defense?

a) an alien may not assert an invasion of privacy defense
b) The right to possess obscene material does not extend beyond the home
c) the right of privacy allows the possession of obscene motion pictures in one’s home
d) theaters may show obscene films to adults

Answer 53

b) - the line for obscene materials is drawn at the home… you may have obscenity in the home. Note that theaters could show pornography if it didn’t constitute obscenity

Question 54

A zoning ordinance of Carmel prevents the keeping of any animals, except cats and dogs, within city limits. Chusetts is a member of a religious cult that believes in ancestor worship and uses monkeys as part of their daily religious worship. Consequently, he keeps a monkey in a separate bedroom in the home. If the town should sue to require Chusetts to remove the animal from the premises because its presence violates the zoning ordinance, and Chusetts challenged the constitutionality of the statute on 1st Amendment grounds,

a) Chusetts wil prevail if he proves that the City passed the law with religious motivation and the zoning ordinance is not narrowly tailored to the state’s compelling interest
b) Chusetts will prevail only if he proves that the application of the statute to him is not rational
c) the city will prevail only if it can show the statute is necessary to satisfy a compelling state need
d) the city will prevail if it can show a rational basis for the statute

Answer 54

a) if there is intentional discrimination (religious motivation) then the law likely needs to pass strict scrutiny. For generally-applicable laws, the plaintiff must show that the law was meant to be discriminatory.

Question 55

Chinook, a resident of State A, was a commercial salmon fisherman who fished 2 months/year in State B. Effective this year, State B says the fee for a salmon fishing license is $5/year for a state B resident and $500/year for a non-resident. If Chinook challenged the constitutionality of the law under the P&I clause of Article IV, the Court would find that:

a) it was constitutional because the state has a proprietary interest in the fish within its borders, and therefore may discriminate against nonresidents
b) It was constitutional because no fundamental interest was infringed
c) It is unconstitutional discrimination against nonresidents because it does not bear a substantial relationship to the fact that there is a limited number of salmon
d) It is unconstitutional because a state may not deny an alien a livelihood unless that action is necessary to satisfy a compelling state need

Answer 55

C). The state must show a substantial relationship. The mere proprietary interest does not justify discrimination without a substantial relationship.

Question 56

The U.S. house of representatives asks the judiciary committee to recommend a law regulating the conditions for marriages and divorces. The committee would like to respond with a law that would most likely withstand constitutional analysis. That law would:

a) only apply to marriage and divorces by members of the armed services
b) only apply to marriages and divorces performed by federal judges
c) only apply to marriages implemented by executive agreement seeking to define basic human rights
d) apply only to marriages and divorces is D.C.

Answer 56

D) even though all of these are plausible, this is the most likely answer (the house of representatives has police state power over D.C.)

Question 57

Manning received unemployment benefits from Great Lake State for one year more than the state statute allows. When the federal government sent a memorandum to the Great Lake Attorney General regarding an audit, the state sought to recover the funds from Manning. Kennedy was an assistant attorney general for Great Lake who filed an action in federal court against Manning to recover the payments, relying on an obscure regulation that allows a jurisdiction to recover government money accepted under misleading circumstances. Manning files a motion to dismiss in federal district court. What is the most likely outcome?

a) The court will dismiss based on the state’s sovereign immunity in federal court
b) the court will dismiss based on lack of standing
c) the court will hear the case
d) The court will find for Manning based on the ex post facto clause

Answer 57

C. (assuming there is a federal question to provide jurisdiction). Remember, ex post facto refers to things being considered crimes…

Question 58

Congress enacted a law limiting the # of passengers allowed in each train car. The bill was drafted the day after a terrorist attack on a passenger train. It also criminalized all of the common law crimes if committed while on a train scheduled for interstate travel. During debate, it became clear that the law would be solely for the purpose of deterring terrorists. What is the constitutionality of the statute?

a) Constitutional exercise of the commerce clause
b) Constitutional exercise of the federal police power
c) Unconstitutional regulation in a traditional state area
d) Unconstitutional as enacted for a non-economic purpose.

Answer 58

A. Congress may use the commerce clause power to achieve non-economic ends.

Question 59

Richmond state constitution has always had a provision prohibiting aliens from inheriting certain property. The U.S. signed a treaty over a century ago with Great Britain providing that no restrictions shall be placed on the rights of the citizens of either country to inherit property in the country of the other. Arthur, a citizen and resident of Great Britain, stands to inherit 34 acres of land in Richmond. This type of conveyance falls within the prohibition in the State Constitution. What is the likely outcome?

a) Arthur inherits the land if he can show no compelling state interest for the prohibition
b) Arthur inherits the land because the treaty overrides the prohibition
c) Arthur does not inherit the land because the Richmond state constitution prohibits it
d) Arthur inherits the land because the prohibition violates Equal Protection

Answer 59

B. The Supremacy Clause means the treaty overrides and invalidates the state constitutional provision - whether it would survive the EPC analysis would therefore not even get reached.

Question 60

The State of I requires a license for “those who engage in the trade of barbering.” I grants licenses to people who meet three conditions: graduate from an I state barber school, reside in the state for 2 years, and be a U.S. citizen. The requirement that they have graduated from an I State barber school is likely:

a) constitutional, because barbering is a privilege, not a right
b) Constitutional, because the state does not know the quality of barber schools outside of the state
c) Unconstitutional because it is a violation of the 14th Amendment P or I clause
d) Unconstitutional as an undue burden on interstate commerce

Answer 60

D. This is the best answer because it does burden interstate commerce. (B) is not the best answer because State I is not using the least restrictive means to achieve that end)

Question 61

The State of I requires a license for “those who engage in the trade of barbering.” I grants licenses to people who meet three conditions: graduate from an I state barber school, reside in the state for 2 years, and be a U.S. citizen. The requirement that the license applicant be a U.S. citizen is:

a) constittuional as an exercise of the state’s police power
b) constitutional as an effort to ensure that barbers speak English adequately
c) Unconstitutional as a denial of the EPC
d) Unconstitutional as a bill of attainder

Answer 61

C. strict scrutiny applies to classifications based on nationality/citizenship

Question 62

The State of I requires a license for “those who engage in the trade of barbering.” I grants licenses to people who meet three conditions: graduate from an I state barber school, reside in the state for 2 years, and be a U.S. citizen. Which of the following is/are good arguments to challenge the two-year residency requirement?

a) Art. IV P&I
b) 14th Amendment P or I
c) 14th Amendment EPC
d) Both A and C

Answer 62

D) The P&I clause specifically protects out of state residents, but the EPC also protects against invidious discrimination on the right to interstate travel, so both (a) and (c) are correct.

Question 63

Ron is convicted for speaking out about the oppression of clowns by the state government. Ron is convicted under a statute prohibiting the “disturbance of the peace by shouting political nonsense.” While Ton was known for outbursts when he forgot his medication, some of his statements in question could be defensible. On appeal to the state’s highest court claiming a violation of his right to free speech, the court refused to hear the case. In a single page decision, the court invoked a widely-ignored rule of appellate procedure requiring litigants to attach a copy of the statute in the appendix of the brief. As a result, Ron’s conviction stands. On appeal to the U.S. Supreme Court, what is the likely result?

a) The court will hear the case if Ron class the state violated due process by applying the appellate rule
b) The court will hear the case, because the state may not preclude high court review by applying the appellate rule inconsistently
c) The court will hear the case because it is a facially invalid statute
d) The court will not hear the case, because the appellate rule is not a federal constitutional matter

Answer 63

B. Normally, U.S Supreme Court review requires a final judgment from the state’s highest court but the state may not circumvent review by manipulating the appellate rules

Question 64

State of N.I. entered into a contract with Roads, Inc. to construct a 4-lane turnpike. Prior to commencement of the construction, the legislature, in order to provide funds for parks, repealed the statute authorizing the turnpike and canceled the agreement with Roads. Roads sued N.I. to enforce its original agreement. In ruling on this case, a court will likely hold that the state statute canceling the agreement is:

a) Valid because constitutionally the sovereign is not liable except with its own consent
b) Valid, because the legislature is vested with constitutional authority to repeal laws it has enacted
c) Invalid, because a state is equitably estopped to disclaim a valid bid once accepted by it
d) Invalid, because of the constitutional prohibition against impairment of contracts

Answer 64

B. State laws impairing a gov’t contract need only have a rational basis.

Question 65

Congress decided that the application of the UCCC (fake law) should be the same throughout the U.S. To that end, it enacted the UCCC as a federal law, directly applicable to all consumer credit, small loans, and retail installment sales. The law is intended to protect borrowers and buyers against unfair practices by suppliers of consumer credit. A national religious organization makes loans throughout the country for the construction and furnishing of churches. The federal UCCC would substantially interfere with the successful accomplishment of that organization’s religious objectives. The organization seeks to obtain a declaratory judgment that the federal law may not be applied to its lending activities. As a matter of constitutional law, which of the following best describes the burden that must be sustained?

a) The federal gov’t must demonstrate that the application of this statute to the lending activities of this organization is necessary to vindicate a compelling gov’t interest
b) The federal gov’t must demonstrate that the religious conduct affects commerce
c) The organization must prove that the activity is central to their religion and substantially interfered with
d) The organization will prevail by showing intentional discrimination by the federal gov’t only if it also shows the law is not narrowly tailored to a compelling gov’t interest

Answer 65

D. The burden in a discrimination claim is on the challenger to show a lack of a tailored application to a compelling gov’t interest. Even though the law affects religion, it is generally applicable. It will probably be reviewed under rational basis scrutiny unless intentional discrimination is shown.

Question 66

A law affects someone’s ability to practice a portion of their religious beliefs. What is the first key question to analyzing the law’s constitutionality?

Answer 66

Is the law facially neutral and generally applicable? (if so, rational basis scrutiny - lower - will apply unless Plaintiff can show intentional discrimination)

Question 67

The local chapter of the Libertarians wants to secede from Snow County and form Freedom County. In an effort to raise awareness of the oppressive nature of the government, Jeb contacts the advertising department of the local AM talk radio station. Jeb wants to run a campaign of political ads on the radio and he thinks this station is the best way to reach his target audience. The advertising department manager refuses to run the ads. Jeb files an action seeking a federal court order to voce the radio station to air the ads. What is the trial court’s strongest justification in denying Jeb relief?

a) The ratio station’s commercial time is not a public forum
b) Jeb has a reasonable alternative to get his message out to his target audience
c) The 14th Amendment provides no basis upon which to compel the radio station to air Jeb’s ads
d) The radio station’s decision not to run his ads is based on a content neutral reason.

Answer 67

C - the radio station is not a state actor, so the Constitution does not require it to play Jeb’s ads (note that though the freedom of speech rights are implicated, there is no gov’t actor as required!)

Question 68

State M purchases old, junk cars and disposes of them. The state purchases the junker cars from in-state owners for $200 and from out-of-state owners for $10. Were an out-of-state owner to challenge the program, the court would find that it was:

a) Constitutional, because the state created the financial market using its own funds
b) Unconstitutional, because it substantially interferes with interstate commerce
c) Unconstitutional because it violates the negative implications of the commerce clause
d) Unconstitutional because it is in-state economic protectionism

Answer 68

A. State M qualifies for the “market participant” exception to the dormant commerce clause.

Question 69

A competency test required for a teaching license is passed way more frequently by white folks than minorities (35% higher pass rate in white folks). An expert at trial indicates that the format chosen by the state demonstrates “clearly intentional discrimination” against minorities. The court will most likely find that the competency test is:

a) constitutional, as rationally related to a legitimate government interest
b) Unconstitutional, violates EPC due to its discriminatory impact
c) Unconstitutional, violates EPC due to its discriminatory intent
d) Constitutional, teachers participate in the gov’t

Answer 69

A - rational basis will apply because the classification is for teachers. If plaintiffs could demonstrate discriminatory impact AND discriminatory intent based on race, strict scrutiny would apply, but a discriminatory intent finding is very rare—even with this expert’s testimony, unlikely to be applied.

Question 70

Congress passed the Career Horizons Act which provides educational grants to U.S. citizens who meet specific qualifications. Hans is a German citizen who has been in the U.S. under a valid student visa. Hans applies for a grant under the Career Horizons Act and is denied, despite meeting all the protocol, because he is not a U.S. citizen. If Hans challenges the constitutionality of his denial, the court’s most likely decision is which?

a) Hans will not prevail, because Congress has the right to attach limiting conditions to its spending
b) Hans will prevail because he is in the country legally and is entitled to constitutional protections
c) Hans will not prevail because Congress has broad powers to restrict the entitlements of aliens
d) The case will be dismissed b/c aliens have no right to bring suit in the courts of the U.S.

Answer 70

C. Congress has plenary power to restrict the naturalization process, which means they can restrict entitlements to benefit U.S. citizens (to incentivize aliens to seek citizenship) A is legally correct but not the best rationale given this fact pattern.

Question 71

In an effort to smooth relations between two troubled countries, the President of the U.S. signs an executive agreement with the head of the nation of Zimtar. The purpose of the agreement is to “create the best possible public image” for Zimtar in the U.S. media. The E-I-C of the NYT files suit on behalf of the newspaper, claiming that the agreement violates the 1st Amendment rights of a free press. The president’s best argument for the constitutional validity of the executive agreement is

a) Executive agreements have no actual force of authority or law
b) Congress can override an executive agreement if it so chooses
c) The executive agreement does not place any restrictions whatsoever on the press
d) The president has broad discretion when entering into executive agreements

Answer 71

C. This agreement binds the President, not the press, to help create a good public image for Zimtar. D isn’t the “best” answer because - yeah, the President has broad powers, but he can’t violate the constitution in exercising that power.

Question 72

What are the four criteria to consider the validity of a state tax?

Answer 72

(1) not discriminatory (can’t be a protectionist result), (2) substantial nexus between a state interest and the activity being taxed, (3) must be fairly apportioned, (4) Not taxing goods in the stream of commerce

Question 73

Homegirl buys a car in State W from dealership S. She uses the car in State M (that’s where she is from). What applicable taxes to that transaction would be constitutional permissible?

a) A sales tax by State M levied against Homegirl and a use tax by State M levied against Homegirl.
b) A sales tax by State W levied against dealership
c) A sales tax by State M levied against Homegirl.
d) A use tax y state M levied against homegirl and a net income tax by W levied against dealership.

Answer 73

d) - a use tax is legit by the state in which the car is being used (bears a substantial nexus to state concern with wear/tear/pollution, you name it) and an income tax can also be levied against the dealership by the state in which it operates. Note that a sales tax can only be levied in the state where the sale takes place.

Question 74

If the President is sued for money damages for conduct that took place two days prior to his inauguration, does he enjoy executive immunity to the civil suit?

Answer 74

NO. The act that is the basis for the suit occurred before he was in office - had it been during office he would have been immune. (Prez has absolute immunity for lawsuits seeking damages for presidential actions, but conduct unrelated to being president? no immunity)

Question 75

Under what circumstances can public funding go to a religiously-affiliated school and comport with the 1st Amendment?

Answer 75

College athletics. Pretty much anything younger than higher education has been banned.

Question 76

When a plaintiff asserts a free exercise violation, which of the following can the court NOT consider in assessing the claim?

a) whether or not the religious belief is sincere
b) whether the action performed is actually mandated by the faith
c) whether a reasonable person would agree that the act is an exercise of a “religious” belief
d) evidence that the religious belief at issue is mere pretext

Answer 76

C. The 1st Amendment prohibits any restriction on BELIEFS but does allow restrictions on religious CONDUCT. So whether or not someone thinks the belief is legitimate/reasonably religious may not be considered. But whether or not the act in question stems from a legitimate religious belief is part of a reasonable analysis.

Question 77

When can an administrative appointee not be removed by the President’s removal power (typically able to be removed at-will w/o Congress’s approval)?

Answer 77

If the person was appointed for a fixed term they can not be so easily removed.

Question 78

WTF is a bill of attainder?

Answer 78

A bill of attainder is a legislative act that inflicts punishment on named individuals or on easily identifiable members of groups.

Question 79

Under what circumstances is conduct considered “Speech” for the purposes of the first amendment?

Answer 79

If (1) the conduct intended to communicate a message and (2) the audience was likely to understand the communication.

Question 80

For Congress to create a rule making agency, what sort of standards/guidelines need to be set for the agency?

Answer 80

The standards must be “intelligible” - not a super high burden to meet but they still must be articulated. Note that once the agency is given rule-making or decision-making authority Congress may not reserve a legislative veto for itself.

Question 81

What are the general characteristics of an executive agency (created by Congress) and how are its members appointed?

Answer 81

An agency vested with the authority to enforce laws is typically an executive agency (remember the executive power to uphold the laws?). Its members must all be appointed by the President w/the advice and consent of the Senate.

Question 82

Under whats circumstances may states enact “reverse discrimination” statutes?

Answer 82

States may implement “reverse discrimination” programs only if there is a record of past discrimination in the sector at issue.

Question 83

What must a government entity demonstrate to properly take property by eminent domain under a public development/improvement theory (a la Kelo)?

Answer 83

The government requires a showing of rough proportionality between the cost to the property owner with the public benefit derived from the taking.

Question 84

What is an exception to the general rule that taxpayers do not have general standing?

Answer 84

When a taxpayer believes that the tax and spend power was used in violation of the Establishment Clause.

Question 85

What sorts of state proprietary businesses can the federal government tax?

Answer 85

Those easily held by private persons/entities (e.g. municipally operated parks charging admission, state operated railroad that transports goods, state owned liquor stores).

Question 86

Generally voting rights operate in such a way that it’s “one person, one vote.” What’s the exception?

Answer 86

Special purpose geographical districts for local concerns such as the water rights of directly affected landowners are the exception to the rule of one person, one vote.

Question 87

How can a law validly impose a prior restraint on (protected) speech?

Answer 87

i. Must serve “an important government interest” and not be vague/overbroad
ii. Must also be afforded reasonable notice, uniformly applied, and come with judicial review of a denial of a permit

Question 88

What is the Mathews test?

Answer 88

Is importance of individual interest x risk of erroneous deprivation > cost to gov’t of procedures x availability of additional safeguards? In this case (if individual’s interest is greater than governments) then a pre-deprivation hearing is required by due process.

Question 89

What are the fundamental privacy interests?

Answer 89

CAMPER:

i. Contraception
ii. Abortion (can be regulated but not prohibited)
iii. Marriage
iv. Procreation
v. Education
vi. Relations (right of nuclear family to live together, have custody of children)

Question 90

What are the fundamental rights that would implicate a strict scrutiny analysis under substantive due process?

Answer 90

Life: not to be killed
Liberty:
a.	First Amendment
b.	Voting
c.	Interstate travel
d.	Refuse medical treatment
e.     Actual liberty (right to not be in jail)
f.      CAMPER privacy rights
Property:
i.	Right to a public education
ii.	The right to own property
iii.	Right to keep a tenured gov’t job

Question 91

To what sort()s of law could this standard be required? “Narrowly tailored to advance a compelling gov’t interest”?

Answer 91

Laws that implicate substantive due process (affect a fundamental right), or laws that discriminate based on a suspect classification. (EPC and substantive due process)

Question 92

To what sort(s) of law would this standard be required?

“Necessary to promote a compelling gov’t interest”

Answer 92

A law that impedes content-specific protected speech

Question 93

To what sort(s) of law would this standard be required? “No less restrictive means to achieve a compelling secular end”

Answer 93

A law that affects someone’s religious belief that was intended to affect religion.

Question 94

To what sort(s) of law would this standard be required? “Narrowly tailored to advance a significant gov’t interest”

Answer 94

Law impedes content-neutral speech in a public forum. NOTE THAT ‘SIGNIFICANT’ INTEREST = INTERMEDIATE BUT ‘COMPELLING’ = STRICT

Question 95

To what sort(s) of law would this standard be required? The law must be “substantially related to an important gov’t objective”

Answer 95

An EPC law that discriminates based on gender or legitimacy (intermediate scrutiny)

Question 96

What type of government interest must be shown to satisfy intermediate scrutiny?

Answer 96

“Important” or “significant” gov’t interests must be shown

Question 97

What type of government interest must be shown to satisfy strict scrutiny?

Answer 97

“COMPELLING” is the key word for strict scrutiny (across the board)

Question 98

To what sort(s) of laws would this standard be required? “Rationally related to a legitimate gov’t interest”

Answer 98

(1) A law discriminates against persons based on a class that is not “suspect” or “intermediate” (EPC rational basis),
OR
(2) a law affects a non-fundamental rights under substantive due process,
OR
(3) law impedes content-neutral speech in a public forum, OR
(4) a law affects religious beliefs but is facially neutral/generally applicable

Question 99

To what sort(s) of law would this standard be required? Must “serve an important government interest”

Answer 99

A prior restraint on speech.

Question 100

What are the key factors in deciding whether an issues is a non-justiciable political question?

Answer 100

1. Does the Constitution vest power to make this decision w/another area of gov’t (branch or states)?
2. Is there a lack of judicially manageable standards by which to decide the case?

Question 101

What are the justiciability issues that would bar a case from being heard in federal courts and what constitutional requirement does this stem from?

Answer 101

Standing, Ripeness, lack of mootness, no advisory opinions, no political question. Interpreted from the “case or controversy” requirement

Question 102

What are the questions to ask whether a plaintiff has standing?

Answer 102

1. Injury-in-fact (actual & imminent)
2. Causation (fairly traceable to D’s conduct)
3. Redressability

Question 103

How would an organization have standing?

Answer 103

Only if there is injury for which members of the organization could sue AND injury has some connection to the organization

Question 104

How could a 3rd party have standing for someone else?

Answer 104

a. Generally not allowed, exceptions:
i. Close relationship e.g. doctor/patient, school/student
ii. Special need to adjudicate (injury suffered by P affects relationships w/3rd parties… famous example Roe. v. Wade (doc’s ability to perform abortion affected)

Question 105

What are the main congressional sources of power to enact legislation? What areas of law does Congress have control over?

Answer 105

a. Commerce Clause
b. Tax & Spend
c. Postal Power
d. Immigration/Citizenship
e. Bankruptcy (Art. I courts)
f. Federal property
g. Takings/Eminent Domain
h. Investigation e.g. impeachment
i. Abrogate state immunity (14th Amend, Sec. 5)

Question 106

How does the president’s appointment power work- what’s the difference b/t primary & inferior officers?

Answer 106

i. Primary officers
1. Federal judges, ambassadors, cabinet members (w/advice + consent of senate)
ii. Inferior officers
1. Appointed by President, reviewed by Judiciary committee, approved by simple majority

Question 107

How does removal of independent agency officers work?

Answer 107

Independent agency: officer has “quasi-legislative, quasi-judicial” power (ex: FTC, FCC). Congress can give this officer a “fixed term” and Pres can only remove for cause

Question 108

How does the President’s pardon power work?

Answer 108

President can pardon for federal crimes but not state crimes - this power cannot be limited by Congress

Question 109

What are the President’s foreign policy powers?

Answer 109

i. Treaty power (2/3 ratification by senate)
ii. Executive agreements w/head of foreign country – never submitted to Congress
iii. Congressional-executive agreements (Congress votes on them and becomes law
iv. To appoint ambassadors
v. Commander in Chief

Question 110

What sorts of discrimination would implicate the privileges & immunities clause (Article 4)

Answer 110

“Fundamental rights” mean pursue a livelihood, civil liberties (so difference b/t commercial licensing schemes and recreational)

Question 111

What laws would be stricken down by the dormant commerce clause and what are its exceptions?

Answer 111

1. Laws that are economically protectionist to in-state interest/actors are per se invalid unless:
   a. “No other means to advance a legitimate state interest”
   b. Market Participant exception

Question 112

Can the President use his foreign affairs power to stop Congress from spending money on a monument dedicated to a foreign nation?

Answer 112

No - even though the President has foreign affairs powers, he has to see to it that the laws are faithfully executed - where Congress validly authorizes spending, El Presidente may not stop it.

Question 113

When can the government pass a rule that classifies on the basis of alienage and still only be subjected to rational basis scrutiny?

Answer 113

Where the classifications restrict the right to participate in functions “central to self-government” like voting, running for office, or serving on a jury.