Con Law

Question 1

Checklist Approach

Answer 1

1. Who is Acting – State action or individual acting on state’s behalf? Congress or state legislature?
2. Identify Individual Rights or Subject Matter Involved - category of Congressional regulation? Enumerated powers? “Fundamental” rights at issue? Crossover agency issues?
3. Test Applicable – appropriate legislative power? Strict scrutiny? Intermediate or rational basis?
4. Eliminate Wrong Legal Standards – challenge to leg power → government has power over issue? Means reach ends achieved? Challenge to individual rights → government (strict) or challenger (rational) have BOP?
5. Be Aware of Subtle Differences – tests and levels of scrutiny have slight variations

Question 2

122. The State of Tennesville enacted a law criminalizing certain speech. The legislature intended to punish the use of fighting words. A recent law review article by a 3L argued that the law is a fairly well-worded, good faith attempt at the constitutional requirements. The student argued that a reasonable person could decide what conduct or speech was prohibited, but that it is borderline constitutional. The student wrote the article because there were no states cases interpreting the statute, and the new governor had talked about enforcing it. Americans for Free Speech initiate a declaratory judgment action in federal district court. The Governor of Tennesville claims that the law prohibits another, yet unrecognized category of unprotected free speech. The district court will most likely:
     A) Not hear the case because the state court has not interpreted the law.
     B) Not hear the case because the state is immune from suit in federal court.
     C) Hear the case, if the AFS has membership in the state.
     D) Hear the case, because of the law’s effects on interstate commerce.

Answer 2

A) Not hear the case because the state court has not interpreted the law.
Abstention doctrine applies; unsettled issue of state law.

Question 3

123. South Georgia has had a statute on the books prohibiting the use of contraceptives by any person since the year condoms were invented. The state has not prosecuted anyone under the statute in 80 years, and sales have been brisk. Bill and Sally Process are getting married and living in South Georgia. Bill wanted to join a gang of liberals. As an initiation, Bill was ordered to file suit against the State. Bill sued the state in federal court alleging the old contraceptive law was unconstitutional. What is the court’s most likely course of action?
     A) Dismiss the case, as the outcome would have no practical legal effect.
     B) Dismiss, because Bill does not have standing.
     C) Dismiss, as a violation of 11th Amendment
     D) Hear the case on its merits and find unconstitutional.

Answer 3

A) Dismiss the case, as the outcome would have no practical legal effect.

This is the mootness doctrine.

Question 4

125. Last year, the Key Lime Supreme Court struck down the statute that sets the procedure for implementing the death penalty for capital crimes in the state. This year, Key Lime State prosecuted Birddog for murder. Key Lime has had a statute since 1901 stating that this crime was a capital offense. Key Lime legislature passed a statute that would survive current constitutional standards for the death penalty procedures. In June, Birddog was convicted and sentenced to death in accordance with the new law. What is the likely outcome on appeal of the case?
     A) The sentence violates the Ex post facto clause if the new statute was not in effect when the crime was committed.
     B) The sentence will be upheld, because it comports with the Constitution.
     C) The conviction violates the Ex Post Facto clause if the new statute was not in effect when the crime was committed.
     D) The conviction will be upheld, but the sentence violates the Constitution.

Answer 4

B) The sentence will be upheld, because it comports with the Constitution.

EPC prohibits punishing an act that was legal when it was committed and made illegal afterwards or increases the punishment of that crime.

Question 5

127. The State of Ilwa requires a license for those “who engage in the trade of barbering.” Ilwa grants licenses to people who meet three conditions: graduate from an Ilwa barber school, reside in the state for 2 years, and are US citizens. The requirement that a license applicant have graduated from an Ilwa 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 Ilwa
     C) Unconstitutional because it is a violation of the 14th amendment Privileges or Immunities Clause.
     D) Unconstitutional as an undue burden on interstate commerce.

Answer 5

D) Unconstitutional as an undue burden on interstate commerce.

State is preferring in-state colleges over out-of-state colleges and restricting interstate commerce.

Question 6

128. The State of Ilwa requires a license for those “who engage in the trade of barbering.” Ilwa grants licenses to people who meet three conditions: graduate from an Ilwa barber school, reside in the state for 2 years, and are US citizens. The requirement that a license applicant must be a US Citizen is
     A) Constitutional 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 equal protection
     D) Unconstitutional as a bill of attainder.

Answer 6

C) Unconstitutional as a denial of equal protection

The regulation fails strict scrutiny analysis.

Question 7

129. The State of Ilwa requires a license for those “who engage in the trade of barbering.” Ilwa grants licenses to people who meet three conditions: graduate from an Ilwa barber school, reside in the state for 2 years, and are US citizens. Which of the following is/are good argument(s) to challenge the 2 year residency requirement?
     A) Art. IV Privileges and Immunities
     B) 14th Amendment Privileges or Immunities
     C) 14th Amendment Equal Protection
     D) Both A and C.

Answer 7

D) Both A and C.

A is specific protection against discrimination of out-of-staters, so it is effective.
C protects against invidious discrimination, including interstate travel rights, so it is effective.

Question 8

130. The State of Ilwa requires a license for those “who engage in the trade of barbering.” Ilwa grants licenses to people who meet three conditions: graduate from an Ilwa barber school, reside in the state for 2 years, and are US citizens. Jake Elwood, a resident of the State of Eastern, was not allowed to sit for the hairdresser’s exam in Ilwa because he graduated from an Eastern barber school. If Jake files suit in federal court to contest denial of the license, what is the likely outcome for Jake?
     A) Dismissed, because of the abstention doctrine.
     B) Prevail, because Ilwa violated due process.
     C) Prevail, because the law violates the Art IV P&I Clause
     D) Decided on the merits, because federal jurisdiction extends to controversies between two states.

Answer 8

C) Prevail, because the law violates the Art IV P&I Clause

Ilwa is discriminating against citizens of Eastern.

Question 9

131. Ronald McDowell is convicted for speaking out about the oppression of clowns by the state government. Ronald is convicted under a statute prohibiting the “disturbance of the peace by shouting political nonsense.” While Ronald was known for his outbursts when he forgot his medication, some of his statements on this occasion could be defensible if interpreted favorably.
     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, Ronald’s conviction stands. In an appeal to the U.S. Supreme Court, what is the most likely result?
     A) The Court will hear the case if Ronald claims the state violated due process by applying the appellate rule.
     B) The Court will hear the case, because the state may not preclude review by applying an 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 issue is not a federal constitutional matter.

Answer 9

B) The Court will hear the case, because the state may not preclude review by applying an appellate rule inconsistently.

Question 10

132. Congress passed a statute requiring each state to arrange for the disposal of toxic waste generated within its borders. If the toxic waste is not disposed of or contained pursuant to federal guidelines w/in 5 years, the state will be deemed to “take title” to the waste and thereby become liable for tort damages stemming from it. The federal statute contemplates that every state with toxic waste w/in its borders will pass legislation funding containment. It will take new Power State five years to build containment facilities to handle all of the nuclear waste it currently has to the new federal standards. New Power files an action in federal court to have the law declared invalid. What is the likely outcome of the case?
     A) The court will invalidate the law, which improperly requires the state to pass laws to implement a federal program.
     B) The court will dismiss the case, b/c it violates 11th Amendment sovereign immunity.
     C) The court will dismiss, because New Power will not suffer any injury for five years, so the case is not ripe.
     D) The court will find for the US, because the law is constitutionally valid.

Answer 10

A) The court will invalidate the law, which improperly requires the state to pass laws to implement a federal program.

Congress may not commandeer the legislative process of the states into implementing a federal program. NY v. US.

Question 11

133. The State of North Island entered into a K w/Roads, Inc., for the construction of a four-lane turnpike. Prior to commencement of construction, the legislature, in order to provide funds for parks, repealed the statute authorizing the turnpike and canceled the agreement with Roads. Roads sued North Island 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 11

B) Valid, because the legislature is vested with constitutional authority to repeal laws it has enacted.

State laws impairing government Ks need only a rational basis, which here is to serve the public need for parks.

Question 12

137. Congress decided that the application of the Uniform Consumer Credit Code should be the same throughout the US. 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 government must demonstrate that the application of this statute to the lending activities of this organization is necessary to vindicate a compelling government interest.
     B) The federal government 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 government only if it also shows the law is not narrowly tailored to a compelling government interest.

Answer 12

D) The organization will prevail by showing intentional discrimination by the federal government only if it also shows the law is not narrowly tailored to a compelling government interest.

Burden is on challenger to show the lack of a tailored application to a compelling government 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 13

138. The Federal Endangered Species Act imposes criminal penalties for killing certain specified animals, among which is the rare Plaid Squirrel. Trail State classifies all species of squirrels as varmints, which may be destroyed by anyone with a Trail State hunting license. Rambo, who has a Trail State hunting license, regularly shoots Plaid Squirrels that trespass on his land. If Rambo is prosecuted under the federal statute, and challenges the constitutionality of the law, which of the following is the strongest constitutional argument in support of the statute?
A) The Commerce Power
B) The Necessary and Proper Clause
C) The Police Power
D) The power to regulate federal lands

Answer 13

A) The Commerce Power

It has been held that wild animals move in interstate commerce when they cross state lines, and are thus subject to the commerce power.

Question 14

139. The Macrosoft Corporation is headquartered in Evergreen State. To keep the corporation within the state, Evergreen passes a massive funding bill, which includes direct subsidies to Macrosoft. Several state attorneys general and private software competitor companies file an injunction against Evergreen subsidizing Macrosoft, claiming a violation of the Dormant Commerce Clause. The most likely disposition of this suit will be that the injunction will be:
     A) Granted, because the subsidies violate the DCC by unduly burdening out-of-state companies that must compete w/Macrosoft
     B) Granted, because the subsidies violate the DCC by effectively insulating the in-state corporation from out-of-state competition.
     C) Granted, because the Ps have standing to challenge the state subsidies as measurable expenditures.
     D) Denied, because the states are not prohibited from using state tax dollars to subsidize local industry.

Answer 14

D) Denied, because the states are not prohibited from using state tax dollars to subsidize local industry.

States can “distribute government largesse” to state residents. Reeves v. Stake.

Question 15

143. 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 contacted 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 force the radio station to air the advertisements. What is the trial court’s strongest justification in denying Jeb relief?
     A) The radio 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 Fourteenth Amendment provides no basis upon which to compel the radio station to air Jeb’s ads
     D) The radio station’s decision is based on content neutral reason.

Answer 15

C) The Fourteenth Amendment provides no basis upon which to compel the radio station to air Jeb’s ads

Radio station is not a state actor, so the Constitution does not require it to play Jeb’s ads. First Amendment doctrine does not apply.

Question 16

144. University of Michel conducted a test, using state tax subsidies, to determine the cause of the recent increase in fatalities from car accidents. Professor Thunderbird concluded that Yokobishi Manufacturing had produced a defective electronic speedometer. Neither Congress nor any other state took any action on the issue. Rather than naming the manufacturer, the Michel State Legislature banned the use of all electronic speedometers within the state effective 60 days from the passage of the law. What is the best argument to defeat the law?
     A) It is a violation of the Equal Protection Clause because it treats electronic speedometers differently from conventional speedometers.
     B) It is a violation of the Commerce Clause, because it unduly burdens interstate commerce
     C) it is a violation of the Due Process Clause because it is a taking without just compensation.
     D) It is a violation of the Constitution as a Bill of Attainder

Answer 16

B) It is a violation of the Commerce Clause, because it unduly burdens interstate commerce

Arguably a burden on interstate commerce, like requiring different sized mud flaps on the back of trucks.

Question 17

146. Responding to the economic downturn, New Gingrich State passed a law terminating all welfare programs effective in 90 days. Ninety days later, the State cuts off Sally’s benefits. Sally, a mother of two who is currently on welfare, files suit. The court will most likely
     A) Find that the hardship on Sally outweighs the administrative convenience of terminating the benefits.
     B) Deny Sally’s claim.
     C) Find the action invalid as the State did not provide Sally an opportunity to be heard.
     D) Find that the State must give Sally a post-deprivation hearing to determine her benefits.

Answer 17

B) Deny Sally’s claim.

There was no state action. The state passed a statute to terminate a program which is not new state action.

Question 18

150. Dixie State requires a competency test granting people a license to teach elementary or secondary school w/in the state. The test covers skills and knowledge taught in high school, as well as other skills. Caucasian test-takers pass the test twice as often as African-American test-takers. Regina, a black woman who failed the test, sues Dixie State. An expert testifying on behalf of the P opines that Caucasians score 35% higher than minority groups on multiple-choice question format tests, but that other formats reduce the margin substantially. The expert further opines that the choice of the multiple choice format in the face of such evidence is clearly intentional discrimination. The court will most likely find that the competency test is
     A) Constitutional, as rationally related to a legitimate government interest
     B) Unconstitutional, as a violation of equal protection due to its discriminatory impact
     C) Unconstitutional, as a violation of equal protection due to its discriminatory intent
     D) Constitutional, because teachers constitute participation in government.

Answer 18

A) Constitutional, as rationally related to a legitimate government interest

Court will apply rational basis scrutiny because the law is not facially discriminatory.

Question 19

152. Sam Blocky was married to Eve. Eve won custody of their two children and support payments from Sam in the divorce decree. Readjustment was hard on Sam. Sam got behind in his support payments. Then Sam met Rebecca and asked her to marry him. The state refused to issue a marriage license unless he could make a showing that his two children would never have to go on welfare. This denial of the marriage license was pursuant to a state statute. What is the probable outcome if the statute were properly challenged as to its constitutionality?
     A) Valid, as rationally related to the legitimate end of protecting children of a prior marriage
     B) Valid, as the state has general power to enact legislation
     C) Invalid, as the statute is not narrowly tailored to fit permissible ends.
     D) Invalid, as the statute does not treat applicants with children the same as similarly situation applicants without children.

Answer 19

C) Invalid, as the statute is not narrowly tailored to fit permissible ends.

Best answer because the statute is a restriction on marriage, which must be narrowly tailored to promote a compelling government interest with no less restrictive means. The state can pursue child support in other ways.

People with children are not a suspect class.

Question 20

153. A state law banning the sale of which substance would be least likely to be subject to strict scrutiny?
A) Milk
B) Condoms
C) Rubber Tires
D) B and C

Answer 20

A) Milk

Even if the court struck down the law, it wouldn’t apply strict scrutiny. Tires would probably be protected under DCC due to their necessity for interstate commerce.

Question 21

159. The State of Coast has a law that all state employees are “at-will” employees, which means they employees may be fired w/out cause. Prof Leftofski is an associate professor who attends public rallies critical of US foreign policy. He often cancels classes and has been late on several deadlines because of his activities. The university president tells the professor, “Get your lazy rear end off my campus. You’re fired.” Which of the following is the correct analysis and conclusion?
     A) employment is a fundamental right requiring due process. Due process was denied so the prof’s termination was illegal.
     B) A job with the government is a property right requiring due process. DP was denied, so the prof’s termination was illegal.
     C) The prof had no property interest in the job, so his termination did not violate DP.
     D) The prof was exercising his protected free speech rights, and so his at-will termination was unconstitutional.

Answer 21

C) The prof had no property interest in the job, so his termination did not violate DP.

At-will law negates any property interest in a public job, unless professor is tenured.

Question 22

161. The North American Association to Promote Strictly Traditional Religions (NAAPSTR) has successfully lobbied the State of Texarkana for a statute named “Equal Rights for All Religions.” The law requires broadcasters that air segments discussing Christianity to allow equal time for segments on Judaism, Hinduism, and Buddhism.
     The American Atheism Association (AAA) is devoted to the study and promotion of the belief that there is no supreme power or creator. AAA has put together a segment about atheism for broadcast on five major television stations in Texarkana. However, four of the five stations have declined to air the segment because they believe it would violate the statute. AAA has sued the four stations and has file suit against the state challenging the constitutionality of the statute.
     What is the strongest argument AAA can make in support of striking down the Equal Rights for All Religions Statute?
     A) The First Amendment prohibits government interference with freedom of the press.
     B) The fact that the statute involves only broadcast media and not print media is an Equal Protection violation.
     C) The First Amendment prohibits government interference w/the free exercise of religion.
     D) The statute is not narrowly tailored to promote a compelling governmental interest.

Answer 22

D) The statute is not narrowly tailored to promote a compelling governmental interest.

A statute that prefers certain religions must be narrowly tailored to achieve a compelling secular end. This statute fails that test.

Question 23

164. The states of Allen and Burns share a border straddled by a beautiful mountain range. Atop the range are two state parks, one run by the state of Allen and one run by the state of Burns. Visitors may take gondolas to the top of the mountains and state state-guided tours that overlap both parks. According to federal law, employees of any park or recreational facility that engages in interstate activities must be paid a minimum wage of $8.00. Tour guides are employed by both states. Tour guides from Allen are paid $6.75 per hour, which is the minimum wage of that state. Guides from Burns are paid $7.50 per hour, although that state’s minimum wage is only $6.00.
     Employees from Burns sue the state in federal court for back pay, claiming they are entitled to the difference between the state and federal wage. What is the likely result?
     A) The employees will prevail, because of the Supremacy Clause.
     B) The case will be dismissed or removed pursuant to the 11th Amendment.
     C) The state will prevail, because Congress has no authority to regulate the wages of state employees not engaged in interstate commerce.
     D) The state will prevail, because the management of the park is a traditional state function.

Answer 23

B) The case will be dismissed or removed pursuant to the 11th Amendment.

Private citizens can’t sue states in federal court for money damages. Period.

Question 24

168. Congress has passed the Career Horizons Act which provides educational grants to U.S. citizens who meet specific qualifications. Hans Kleimer is a German citizen who has been studying in the US under a valid visa. Hans applies for a grant under the Act. Despite meeting all of the other specified qualifications, Hans is turned down because he is not a US Citizen. If Hans challenges the constitutionality of his denial, what is the most likely outcome?
     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 entitlements of aliens.
     D) The case will be dismissed, because aliens have no right to bring suit in US courts.

Answer 24

C) Hans will not prevail, because Congress has broad powers to restrict entitlements of aliens.

Article I gives Congress plenary powers to regulate the naturalization process. Therefore, Congress can restrict entitlements for the benefit of US citizens, as this would encourage aliens to become citizens.

Question 25

169. Cheminol is a corporation operating in the State of Nebar. The company produces and ships flammable chemicals for use in the manufacture of certain types of hard plastics. For years, Cheminol has been burying bithium, a toxic waste product, in metal drums in a storage trench on Cheminol property. Some of the drums have suffered metal fatigue and begun to leak, but the company has not instituted clean up procedures. ||Kasan, a city in Nebar located near the Cheminol plant, has recently been detecting rising levels of bithium in its groundwater, attributable to the Cheminol dumpsite. One test completed on April 3 revealed that the bithium level had reached 100 parts per billion. The federal government regulations regarding bithium set the maximum permissible level in groundwater at 250 parts per billion. Neither the State of Nebar nor the city of Kasan has any law regarding bithium on the books.||The Kasan City Council is concerned about a new study indicating that even lower levels of bithium - 75 parts per billion - could be dangerous to humans. On July 17, the council passed a municipal ordinance limiting the permissible amount of bithium in groundwater to 50 parts per billion and cites Cheminol for violation. After a full and fair hearing, the city fined Cheminol $100,000 and ordered the immediate cleanup of the dumpsite within 60 days.||Cheminol brings suit to challenge the fine. What is the likely result?
     A) The city council will prevail, because it has the right to regulate for the health and safety of its citizens.
     B) The city council will prevail, because Cheminol had notice and an opportunity to be heard.
     C) Cheminol will prevail, because the city ordinance amounts to a bill of attainder.
     D) Cheminol will prevail, because the city ordinance was an ex post facto law.

Answer 25

D) Cheminol will prevail, because the city ordinance was an ex post facto law

The ordinance was an ex post facto law. Cheminol was not in violation of any bithium regulations until after the city passed the new lower standard. Cheminol was not given the opportunity to comply with the new standard.

Question 26

170. Cheminol is a corporation operating in the State of Nebar. The company produces and ships flammable chemicals for use in the manufacture of certain types of hard plastics. For years, Cheminol has been burying bithium, a toxic waste product, in metal drums in a storage trench on Cheminol property. Some of the drums have suffered metal fatigue and begun to leak, but the company has not instituted clean up procedures. ||Kasan, a city in Nebar located near the Cheminol plant, has recently been detecting rising levels of bithium in its groundwater, attributable to the Cheminol dumpsite. One test completed on April 3 revealed that the bithium level had reached 100 parts per billion. The federal government regulations regarding bithium set the maximum permissible level in groundwater at 250 parts per billion. Neither the State of Nebar nor the city of Kasan has any law regarding bithium on the books.||The Kasan City Council is concerned about a new study indicating that even lower levels of bithium - 75 parts per billion - could be dangerous to humans. On July 17, the council passed a municipal ordinance limiting the permissible amount of bithium in groundwater to 50 parts per billion and cites Cheminol for violation. After a full and fair hearing, the city fined Cheminol $100,000 and ordered the immediate cleanup of the dumpsite within 60 days.||Cheminol brings suit to challenge the constitutionality of the city ordinance. What is the LEAST effective argument Cheminol could make?
     A) Congress has occupied the field of regulation of toxic waste contaminant levels.
     B) The city ordinance is in conflict with the federal law and is therefore invalid.
     C) The city ordinance was enacted as a result of improper procedural methods.
     D) The city ordinance amounted to a taking of Cheminol’s property because there is no way to operate its plant without a minimum contamination rate of 60 parts per billion.

Answer 26

B) The city ordinance is in conflict with the federal law and is therefore invalid.

The city ordinance sets a higher standard of public safety than the federal law, and therefore does not violate the Supremacy Clause. The federal law simply provides a floor below which the state or city law may not go. A higher standard is acceptable.

Question 27

178. The State of Waldorf and the State of Statler share a border at their eastern and western edges, respectively. Because Waldorf has a lower sales tax than Statler does, many residents of Statler go to Waldorf to make major purchases, such as automobiles, expensive jewelry, etc. As a result, the otherwise quiet stretch of interstate highway connecting Eastern Waldorf and Western Statler is plagued with constant traffic jams and accidents. || Due to these problems caused by interstate purchasers from Statler, Representative Moneypenny from the State of Waldorf lobbies Congress for the Waldorf Business Defense Act, a bill that would allow Waldorf to tax residents of Statler at a higher rate than residents of Waldorf for single consumer purchases over the cost of $1,000. The bill passes by a narrow majority. || Maggie Mardelene lives in the State of Statler. She takes a vacation to the nearby State of Waldorf to see her sister’s new baby. While in Waldorf, Maggie drives her rental car past Sid’s Sizzling Streetlegals, a used car lot incorporated and licensed in Waldorf. Sid’s is selling a beautiful 1999 Lexus for $9,000. Maggie can’t resist the great deal and goes to Sid’s to purchase the car. However, when the salesman asks for her identification and discovers she is a resident of Statler, Maggie is charged sales tax amounting to $2400. A resident of Waldorf would have paid only $900 in sales tax. Which of the following taxes would be constitutionally permissible?
     A) A sales tax by Statler levied against Maggie and a use tax by Statler levied against Maggie.
     B) A sales tax by Waldorf levied against Sid’s.
     C) A sales tax by Statler levied against Maggie.
     D) A use tax by Statler levied against Maggie and a net income tax by Waldorf levied against Sid’s.

Answer 27

D) is correct. If a product is purchased outside a state but used in-state, a state use tax is permissible. Also, business conducted within a state may be subject to net income, licensing, and occupational taxes.

Question 28

179. The State of Waldorf and the State of Statler share a border at their eastern and western edges, respectively. Because Waldorf has a lower sales tax than Statler does, many residents of Statler go to Waldorf to make major purchases, such as automobiles, expensive jewelry, etc. As a result, the otherwise quiet stretch of interstate highway connecting Eastern Waldorf and Western Statler is plagued with constant traffic jams and accidents. || Due to these problems caused by interstate purchasers from Statler, Representative Moneypenny from the State of Waldorf lobbies Congress for the Waldorf Business Defense Act, a bill that would allow Waldorf to tax residents of Statler at a higher rate than residents of Waldorf for single consumer purchases over the cost of $1,000. The bill passes by a narrow majority. || Maggie Mardelene lives in the State of Statler. She takes a vacation to the nearby State of Waldorf to see her sister’s new baby. While in Waldorf, Maggie drives her rental car past Sid’s Sizzling Streetlegals, a used car lot incorporated and licensed in Waldorf. Sid’s is selling a beautiful 1999 Lexus for $9,000. Maggie can’t resist the great deal and goes to Sid’s to purchase the car. However, when the salesman asks for her identification and discovers she is a resident of Statler, Maggie is charged sales tax amounting to $2400. A resident of Waldorf would have paid only $900 in sales tax. ||Sid’s experiences a sharp drop in business because of the new tax against residents of Statler. The company files suit challenging the constitutionality of the state tax law. What is the least effective argument that the state can make in defense to Sid’s claim?
     A) Sid’s claim does not involve a fundamental right.
     B) There is statistical evidence that the problems on Waldorf’s eastern highway are caused by residents of Statler.
     C) The Waldorf Business Defense Act is constitutional.
     D) Any other measure would not solve the problem.

Answer 28

A) Sid’s claim does not involve a fundamental right.

Sid’s claim involves the right to pursue a livelihood, which is certainly fundamental.

Question 29

181. In a stunning front-page article in the New York Times, it is revealed that the President of the United States, Geoff Brush, has participated in insider trading. On November 7, 2000, Brush was elected to his first term of office. On November 27, he resigned as CEO of his father’s tobacco company, Fillup Maurice. ||On January 16, 2001, Brush was golfing with the CFO of Fillup Maurice. The CFO said that the company was about to fold. Apparently, there had been some shady bookkeeping going on (of which Brush had no knowledge when he was CEO). On January 18, 2001, Brush dumped his stock. The dump greatly exacerbated the stock’s plummet and caused a number of other stockholders to be financially ruined. On January 20, 2001, Brush was inaugurated.|| Brush is tried and convicted of violating the Insider Trading Act. As a result, the House determines that grounds for impeachment exist. The vote is a majority of 223 to 212. The Senate convicts by a majority vote of 56 to 44. What are the consequences for President Brush?
     A) He is impeached.
     B) He is removed from office.
     C) He is impeached and removed from office.
     D) He is neither impeached nor removed from office.

Answer 29

A) He is impeached.

Only a majority of House votes are necessary to impeach, but the Senate must convict by a 2/3 margin for the President to be removed.

Question 30

183. Kelly is a property developer who owns 110 acres in a suburb of Baysurf. She has subdivided the property into 1-acre plots and wants to sell them to private parties to build single-family dwellings. She receives all of the necessary licensing and zoning approval, and registers her business with the Secretary of State and other appropriate state agencies. Concerned about property values and safety, she wants to include in each deed a covenant stating that the purchaser will not resell the property to anyone of Arabic descent. ||The O’Neills buy a piece of property and build a house. Three years later, they wish to sell, and get an outstanding offer from a man whose parents are both Syrian nationals. They sell the property and move. However, Kelly files a breach of contract suit in state court for violation of the covenant. Kelly prevails, and the O’Neills appeal, claiming that the covenant amounted to unconstitutional racial discrimination. Kelly argues that there was no state action. What is the best argument that the O’Neills can make in support of their claim?
     A) The housing development is a place of public accommodation.
     B) There are mutual contacts between Kelly and the state.
     C) Housing citizens is a traditional public function.
     D) The lower court enforced the contract.

Answer 30

D) The lower court enforced the contract.

This scenario falls under the narrow exception carved out in Shelly v. Kramer. If a contract contains racially restrictive covenants, state action is present if a court enforces the contract.

Question 31

184. Congress recently passed a new comprehensive Labor and Employment Act, which greatly expanded the rights of American employees. In anticipation of an overwhelming amount of litigation, Congress created the federal Labor and Employment Court. The court’s jurisdiction is to hear cases brought pursuant to the Labor and Employment Act. Since litigation will settle much of the controversy surrounding the Act, Congress has provided that the court will be eliminated after 10 years. Since the Labor and Employment Court will have expertise in adjudicating disputes about the act, no appeals will be allowed, and the U.S. Supreme Court will not have the power of judicial review. ||The Minimum Wage Act provides that the federal minimum wage will increase by a certain percentage every two years. The next increase will occur in eleven months and will bring the federal minimum wage up to $9.15 per hour. The State of Dakola’s minimum wage is currently $9.00 per hour. ||What is the strongest ground for challenging the constitutionality of the Labor and Employment Act?
     A) It limits the jurisdiction of the Labor and Employment Court.
     B) It eliminates judicial review of an inferior federal court by the U.S. Supreme Court.
     C) It eliminates all possibility of appeal.
     D) It violates the constitutional provision that all federal court judges serve for a life term as long as they do not act improperly.

Answer 31

C) It eliminates all possibility of appeal.

The Act completely eliminates the right of appeal, which is has been determined to be a Fifth Amendment due process right.

Question 32

185. Congress recently passed a new comprehensive Labor and Employment Act, which greatly expanded the rights of American employees. In anticipation of an overwhelming amount of litigation, Congress created the federal Labor and Employment Court. The court’s jurisdiction is to hear cases brought pursuant to the Labor and Employment Act. Since litigation will settle much of the controversy surrounding the Act, Congress has provided that the court will be eliminated after 10 years. Since the Labor and Employment Court will have expertise in adjudicating disputes about the act, no appeals will be allowed, and the U.S. Supreme Court will not have the power of judicial review. ||The Minimum Wage Act provides that the federal minimum wage will increase by a certain percentage every two years. The next increase will occur in eleven months and will bring the federal minimum wage up to $9.15 per hour. The State of Dakola’s minimum wage is currently $9.00 per hour. ||An employer in Dakola challenges the constitutionality of the Minimum Wage Act in the Labor and Employment Court. The employer argues that when the new increases take effect, Dakola’s minimum wage will increase and he will not be able to afford to stay in business. The State of Dakola moves to dismiss. What result?
     A) Dismissed, the case is not ripe because the employer has not been injured.
     B) Dismissed, the court does not have jurisdiction.
     C) Motion to dismiss denied, the employer will be injured by the law when it takes effect and the case should be heard by the Labor and Employment Court.
     D) Dismissed, the case is moot because the federal law will have no effect on Dakola’s minimum wage.

Answer 32

B) Dismissed, the court does not have jurisdiction.

The initial fact pattern stated that the Labor and Employment Court had jurisdiction over claims made pursuant to the Labor and Employment Act. This claim is made pursuant to the Minimum Wage Act, over which the court has no jurisdiction.

Question 33

186. The State of North Caretarna has a law that allows public funds to be used in financial assistance programs to schools. In North Caretarna, a few schools at each academic level are run by religious organizations. In which of the following situations is the law most likely to be constitutionally valid?
     A) The law allows payment to all elementary schools, provided the school can demonstrate that the funds are not used in furtherance of religion.
     B) The law allows payment to all high schools, provided the funds are used only for athletic programs.
     C) The law allows payment to all high schools, provided the school can demonstrate that students of all religions are admitted without discrimination.
     D) The law allows payment to all colleges, provided the funds are used for athletic programs.

Answer 33

D) The law allows payment to all colleges, provided the funds are used for athletic programs.

Courts have been most lenient about public funds for athletic programs made to religious schools at the college level.

Question 34

187. An outbreak of waterborne illness has ravaged the State of Pensacola. The illness has been traced to seepage from slaughterhouses engaged in unsafe disposal of animal byproducts. A recently enacted state law requires the “sanitary disposal of all animal carcasses, including organs, at a designated state disposal site.” Jerry is a devoutly religious man whose faith requires him to bury a whole goat carcass in his backyard each month as an offering. Two weeks after the law is enacted, he is arrested while performing the act of burial. ||If Jerry is prosecuted for violating the state law, what is his best defense on constitutional grounds?
     A) Enforcement of the law in Jerry’s case is a violation of his freedom of religion.
     B) The act of burying the goat is expressive conduct and is therefore protected speech under the First Amendment.
     C) His belief that his religion requires him to bury a goat is sincere and therefore the prosecution is a Free Exercise Clause violation.
     D) The statute excessively entangles the government with religion, and is an Establishment Clause violation.

Answer 34

C) His belief that his religion requires him to bury a goat is sincere and therefore the prosecution is a Free Exercise Clause violation.

If Jerry is sincere in his belief, then the law as applied may be a violation of his right to religious free exercise.

Question 35

189. The State of Illiho is located on the West Coast of the United States. To get from Illiho to almost any other U.S. state requires travelling through Tassen, a neighboring state that shares an eastern border. To the North of Illiho is the State of Starket, the only state accessible to Illiho without going through Tassen. ||Ace Trucking Company has its national headquarters in the State of Illiho but ships goods throughout the United States. Due to the heavy use of its roads by trucks from Illiho, Tassen has imposed a privilege tax on trucks from Illiho of $10 for every shipment across Tassen. Trucks from other states are taxed 50 cents per shipment, regardless of the amount of use. Tassen trucks are exempted from the tax, regardless of how much they use Tassen roads. Tassen also imposes a tax of 4% of the value of the goods in each truck that travels through Tassen, regardless of where the truck originated and whether the truck stops in the State of Tassen or not. ||Ace Trucking files suit challenging the constitutionality of the Tassen privilege tax. Which of the following is the strongest argument in support of Ace’s claim?
     A) Tassen is taxing goods in the stream of commerce.
     B) There is no substantial nexus between the state interest and the activity taxed.
     C) The tax is protectionist.
     D) No legitimate state interest is furthered by the tax.

Answer 35

C) The tax is protectionist.

Since the state does not impose the tax on Tassen trucks, the tax favors in-state interests over foreign interests.

Question 36

191. The State of Illiho is located on the West Coast of the United States. To get from Illiho to almost any other U.S. state requires travelling through Tassen, a neighboring state that shares an eastern border. To the North of Illiho is the State of Starket, the only state accessible to Illiho without going through Tassen. ||Ace Trucking Company has its national headquarters in the State of Illiho but ships goods throughout the United States. Due to the heavy use of its roads by trucks from Illiho, Tassen has imposed a privilege tax on trucks from Illiho of $10 for every shipment across Tassen. Trucks from other states are taxed 50 cents per shipment, regardless of the amount of use. Tassen trucks are exempted from the tax, regardless of how much they use Tassen roads. Tassen also imposes a tax of 4% of the value of the goods in each truck that travels through Tassen, regardless of where the truck originated and whether the truck stops in the State of Tassen or not. ||In a separate action, a trucking company from Illiho that ships goods through Tassen challenges the Tassen goods tax under the dormant commerce clause. Is the claim valid?
     A) No. The dormant commerce clause only prohibits states from enacting protectionist legislation that burdens interstate commerce.
     B) Yes. The dormant commerce clause prohibits the taxing of goods in the stream of commerce.
     C) No. States are permitted to tax out-of-state interests at the same rate as in-state interests. D) Yes. The dormant commerce clause prohibits states from taxing goods unless a legitimate state interest is served.

Answer 36

B) Yes. The dormant commerce clause prohibits the taxing of goods in the stream of commerce.

The Tassen goods tax is taxing some goods that are in the stream of commerce - there is no break in transit as the goods pass through the state. This is not permitted under the dormant (or negative) Commerce Clause.

Question 37

198. Virgenessee and Alabraska are neighboring states that share the Blue Ridge River as a border. For three years, Virgenesee has been relaxing its environmental laws, including water pollution controls, in the hope of enticing more manufacturing businesses to the state. It worked, and mercury levels in the Blue Ridge River have tripled. Citzens of Alabraska are no longer able to use the river for recreation and fishing. The State of Alabraska files suit in the Federal District Court of Virgenessee, requesting that Virgenessee compensate Alabraska citizens for the harm resulting from the increased mercury levels.||Virgenessee files a 12(b)(6) motion for dismissal of the case, arguing that the court has no jurisdiction to hear the matter. The motion will likely be
     A) Denied, because lower courts have concurrent jurisdiction to hear cases between two or more states.
     B) Denied, because of Alabraska’s parens patriae status.
     C) Granted, because the Supreme Court has mandatory original jurisdiction.
     D) Granted, because in cases between states, the Supreme Court must first deny certiorari before a suit in a lower court is filed.

Answer 37

B) Denied, because of Alabraska’s parens patriae status.

In cases between two states where, as here, one state is suing on behalf of its citizens under the parens patriae doctrine, lower federal courts have concurrent jurisdiction with the Supreme Court.

Question 38

200. With the approval of the majority of Congress, United States President John Taylor appoints Simon LeBon as head of the EPA for a term of 3 years. After a bitter political disagreement, Taylor revokes the appointment on the grounds that LeBon serves “at the pleasure of the President.” LeBon protests and files suit. What is the likely result?
     A) LeBon will prevail, because he was appointed for a term.
     B) LeBon will prevail, because Taylor may not remove him without Congress’ consent.
     C) Taylor will prevail, because the Executive Branch may dismiss administrative appointees at will.
     D) Taylor will prevail, because the Executive does not need Congressional approval to remove administrative appointees.

Answer 38

A) LeBon will prevail, because he was appointed for a term.

The President may remove administrative appointees, but only if they are not appointed for a fixed term.