Con Law

Question 1

What does the Eleventh Amendment prohibit?

Answer 1

The Eleventh Amendment prohibits an action in federal court by a citizen of one state against another state when the basis for the action is the violation of state law.

Question 2

Does the Eleventh Amendment prevent recovery of retroactive money damages by citizens against a state agency?

Answer 2

The Court has interpreted the Eleventh Amendment as barring unconsented private suits against a state for retroactive money damages. Congress may abrogate state sovereign immunity only if it (1) provides a clear statement of its intent to abrogate, and (2) acts under Section 5 of the Fourteenth Amendment.

Question 3

May Congress expand or limit SCOTUS original jurisdiction?

Answer 3

No. Article III, Section 2 gives the Supreme Court “original jurisdiction” (i.e., the case may be filed first in the Supreme Court) over “all cases affecting ambassadors, other public ministers and consuls and those in which a State shall be a party.” Congress may not expand or limit the Court’s original jurisdiction. Marbury v. Madison, 5 U.S. 137 (1803).

Question 4

Can the Supreme Court hear cases in which state supreme courts refused to hear? Further, may Congress establish the manner in which the appellate jurisdiction of the Supreme Court is exercised.

Answer 4

Yes, Congress can establish the manner in which appellate jurisdiction is exercised, and Congress has eliminated certain types of appeals, pursuant to Article III, Section 2.

The Supreme Court has the power to review state court decisions and statutes to ensure conformity with the U.S. Constitution “and under such regulations as the Congress shall make.” The two means of establishing Supreme Court jurisdiction are (i) direct appeal and (ii) certiorari (discretionary review).

Question 5

What argument best supports the US Supreme Court denying a petition, such as a habeous claim based on ineffective assistance of counsel when the federal law allows a year to file but state law requires it be filed without substantial delay and the highest state court denies review because of said delay?

Answer 5

The Adequate and Independent State Grounds Doctrine operates to forestall review by the U.S. Supreme Court of a final state-court judgment based on state law that is independent of federal law and adequate to support the judgment. A judgment by a state court may be adequate even if it prevents a party from litigating a federal right on the basis of a state procedural rule. The rule may even permit the state court to exercise discretion so long as the rule is not being utilized to discriminate against claims of federal rights.

Question 6

If a state is a party, who has original jurisdiction?

Answer 6

Section 2 of Article III of the U.S. Constitution specifically provides that the Supreme Court has original jurisdiction over all cases in which a state is a party. Note that Congress cannot expand or limit this jurisdiction, but it can grant concurrent original jurisdiction to lower federal courts.

Question 7

What is Taxpayer Standing?

Answer 7

Taxpayer standing is the idea that a person who pays taxes should have the right to file a lawsuit against the government if the government allocates money improperly. The Supreme Court has held that this is not sufficient basis for standing, unless the suit is challenging specific appropriations under the taxing and spending power for violation of the Establishment Clause.

Question 8

What is required to have standing? Further, can an individual have standing to challenge a federal statute on Tenth Amendment grounds?

Answer 8

In order to have standing to assert a claim or defense, a person must suffer an injury in fact. An individual, as well as a state, may have standing to challenge a federal statute on Tenth Amendment grounds.

Question 9

Can an assignee have standing?

Answer 9

An assignee has standing under Article III to bring an assigned claim, even if the claim is mature at the time of assignment and the assignment is made for collection only. An assignee may sue on the basis of the assignor’s injuries.

Question 10

A state legislature passed a law requiring employers to provide their employees with health insurance that covered certain prescription drugs. Violation of this statute was considered a crime that subjected the offender to fines, which were described in detail in the statute. The law was effective immediately. An employer did not provide its employees with insurance that covered the required drugs, and argued that such drugs were prohibited by the religion practiced by the employer. The employer filed a complaint in federal court asserting that the law was unconstitutional and asked for a preliminary injunction against the attorney general to prevent him from enforcing the statute while the case was heard. The attorney general filed a motion to dismiss, asserting that the federal court did not have jurisdiction to hear the case. How should the federal court rule on the attorney general’s motion to dismiss?

Answers:

A. Grant the motion based on prudential grounds.
B. Grant the motion based on the doctrine of abstention.
C. Deny the motion, because the employer has taxpayer standing due to the imposition of fines.
D. Deny the motion, because the employer’s injury is imminent.

Answer 10

Answer choice D is correct. In order to bring a claim in federal court, a plaintiff must have standing and the issue must be ripe for litigation. To have standing, a plaintiff must establish (1) a particularized injury, which must have actually occurred or be imminent; (2) that defendant caused this injury; and (3) that the relief requested is likely to redress the injury. First, the employer can show an imminent injury—loss of money from the threatened fines, which can be imposed immediately. Second, the government caused this injury by forcing the employer to comply with the law or pay a fine. Third, the requested injunction will redress that injury by removing the burden of compliance unless and until a court rules that the law is constitutional. Furthermore, the case is ripe because the threat of enforcement is imminent and the legal issues are sufficiently developed for a court to decide the case. Answer choice A is incorrect because neither of the categories of prudential standing applies here: The court is not being asked to adjudicate the claims of third parties or “generalized grievances” (i.e., injuries that are widely shared, as contrasted with the employer’s individualized injury here). Answer choice B is incorrect because the two abstention doctrines—the Younger abstention doctrine, which applies only to pending state criminal cases or administrative proceedings, and the Pullman abstention doctrine, in which constitutional claims depend on resolving an unsettled issue of state law—are inapplicable. Answer choice C is incorrect because the doctrine of taxpayer standing, which allows a taxpayer standing to file a federal lawsuit challenging a specific congressional appropriation for violation of the Establishment Clause, is also inapplicable.

Question 11

Can a federal court enjoin a pending state criminal case?

Answer 11

Under the Younger doctrine, a court will generally not enjoin a pending state criminal case, unless the state prosecution was taken in bad faith or for the purpose of harassment.

Question 12

A state statute criminalizes the public distribution in quantity of anonymous handbills related to any political party or candidate in connection with any election of state public officials. Previously, a citizen had been convicted for violation of this law with regard to handbills that he had distributed in opposition to the candidacy of particular person for mayor. His conviction was overturned on appeal by a state appellate court because the state failed to prove that he had distributed the handbills in quantity. The candidate, who had been successful in winning the office of mayor, had since resigned. The citizen, concerned that the former candidate might run again for elective office, has filed an action in federal court seeking a declaratory judgment that the criminal statute is unconstitutional due to overbreadth.
How is the court likely to rule on this matter?

Answers:

A. Rule in favor to the state, because the state has an interest in maintaining the integrity of state elections.
B. Rule in favor of the citizen, because the statute has a chilling effect on the citizen’s exercise of his First Amendment rights.
C. Dismiss the action for lack of an actual, present controversy.
D. Abstain from deciding the matter until the state court has the opportunity to construe the statute.

Answer 12

Answer choice C is correct. In order for a federal court to entertain an action, there must be an actual controversy. Although an action that seeks a declaratory judgment may be constitutionally permissible, the challenged action must pose a real and immediate danger to a party’s interests for there to be an actual dispute. Here, the citizen’s sole concern is the hypothetical danger that a particular person will run for elected office in the near future. Therefore, there is not a present danger of the citizen’s running afoul of the state criminal statute regarding the distribution of handbills, and there is no actual controversy to be decided by the court. Answer choice A is incorrect. Although the state does have an interest in maintaining the integrity of state elections, the plaintiff has failed to assert an actual controversy. Consequently, the court should dismiss the action without ruling on the citizen’s constitutional challenge. Answer choice B is incorrect. The state criminal statute could have a chilling effect on a plaintiff’s exercise of his core First Amendment right to engage in political speech. However, the narrow and hypothetical focus of this particular plaintiff’s concern makes it unlikely that the statute in question has a current chilling effect on the citizen. Consequently, regardless of whatever merit a constitutional challenge to the state statute might have in the abstract, the citizen’s challenge does not present an actual controversy, and the court should dismiss the action without ruling on the citizen’s constitutional challenge. Answer choice D is incorrect because abstention is not appropriate here. There is no pending state criminal prosecution of the citizen as his conviction was previously overturned. Because the statute does not appear susceptible to interpretation by a state court in a manner that would avoid the federal constitutional question, there is no reason the court should abstain from hearing the matter.

Question 13

What does Section 5 (The Enabling Clause) of the Fourteenth Amendment permit Congress to do?

Answer 13

The Section 5 Enabling Clause of the Fourteenth Amendment permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the Fourteenth Amendment, as long as there is “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end. Congress may override state government action that infringes upon Fourteenth Amendment rights, but it may not regulate wholly private conduct under this amendment.

Question 14

Is it constitutional for Congress to enact a national property tax that is applied uniformly throughout the US to the fair market value of the property?

Answer 14

Article I, Section 9 provides that “no . . . direct tax shall be laid, unless in proportion to the Census[.]” Although there is dispute as to the types of taxes that are encompassed within the definition of a direct tax, a tax on real property interests is undisputedly a direct tax. To satisfy the apportionment rule, a state with twice the population of another state would have to pay twice the tax, even if the more populous state’s share of the national tax base were smaller. Here, because the real property tax is not in proportion to the population of each state, it would run afoul of Article I, Section 9.

Question 15

Can Congress tax goods exported to foreign countries?

Answer 15

Congress may not tax goods exported to foreign countries. Under the Export Taxation Clause, a tax or duty that falls on goods during the course of exportation or on services or activities closely related to the export process is prohibited.

Question 16

Suppose Congress passes a law denying federal courts jurisdiction over habeas petitions of those designated as enemeny combatants. Then, can an enemy combatant alien’s habeas corpus petition be denied who is taken to a territory outside the US but over which the US has sovereign control

Answer 16

Under the Suspension Clause of Article I, Section 9, Clause 2, a detainee retains the privilege to file a habeas corpus petition unless this privilege is suspended. This clause applies to individuals detained in a territory over which the United States has sovereign control, even though such territory is outside the United States.

Question 17

Congressional power to investigate, Congressional Subpoena power and limits

Answer 17

Congress does not have an express power to investigate, but the Necessary and Proper clause allows Congress broad authority to conduct investigations incident to its power to legislate. While a subpoenaed witness who fails to appear before Congress or refuses to answer questions may be cited for contempt, the witness is entitled to certain procedural due process rights, including the presence of counsel.

Question 18

Property Clause of Article IV, Section 3

Answer 18

The Property Clause of Article IV, Section 3 states, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” This power includes not only the power to dispose of property owned by the United States and to make incidental rules regarding its use, but also the power to protect the property. Although a state generally has the same right as any property owner to construct a fence on its property, this right must give way to federal regulation.

Question 19

Can Congress take away a persons citizenship?

Answer 19

The protection of national citizenship in Clause I of the Fourteenth Amendment prevents Congress from taking away a person’s citizenship without her consent, unless that citizenship was obtained by fraud or in bad faith.

Question 20

State classification based on alienage v Federal classification based on alienage

Answer 20

A classification based on alienage is subject to a different standard depending on whether the action is taken by the state or by the federal government. Courts will generally apply the strict scrutiny test and strike down state-based laws that discriminate against resident aliens for lack of U.S. citizenship. In contrast, Congress has plenary power over aliens under Article I, and the power to expel or exclude aliens is a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control. Therefore, a federal alienage classification is likely valid unless it is deemed arbitrary and unreasonable.

Question 21

Can state’s regulate federal elections?

Answer 21

The Elections Clause explicitly empowers Congress to override state laws concerning federal elections.

Question 22

A recently enacted federal statute requires the President to make each appointment of a United States ambassador to a foreign country from a list of three individuals. The list is to be compiled by the Senate Foreign Relations Committee and approved by the full Senate in advance of the appointment. The statute also provides that Senate confirmation of the appointment is deemed to occur automatically 30 days after the time the President names an appointee from the list, unless the full Senate determines otherwise within the 30-day period.

Is this statute constitutional?

Answers:

A. No, because the statute violates the constitutional requirements for appointment of principal officers of the United States.
B. No, because the statute impermissibly restricts the plenary foreign affairs powers of the President.
C. Yes, because the statute is consistent with the constitutional requirement that the presidential appointment of ambassadors be with the advice and consent of the Senate.
D. Yes, because the statute is a necessary and proper measure in furtherance of Congress’s power to regulate commerce with foreign states.

Answer 22

Answer choice A is correct. Two provisions of the statute violate the appointments clause of the Constitution as they go beyond simply ‘advice and consent’. First, the provision limiting the President to a list of three potential nominees violates the President’s power to nominate principal officers. Second, the automatic confirmation provision violates the requirement that the Senate consent to the appointment of a principal officer. Answer choice B is incorrect because the statute does not restrict the President’s conduct of foreign affairs. It applies only to the appointment of ambassadors. Answer choice C is incorrect because the statute represents a misapplication of the Senate’s advice and consent power. Answer choice D is incorrect. The statutory scheme for the nomination and confirmation of ambassadors is not “necessary” because it is not reasonably related to furthering any congressional statute regulating foreign commerce. Moreover, the statutory scheme is not “proper” because two provisions of the statute described above violate the appointments clause of the Constitution.

Question 23

If a treaty is not self-executed and the Senate ratifies it, what is the effect on state laws or courts?

Answer 23

Under the Supremacy Clause, a state is required to follow federal law when it conflicts with state law. A treaty that is not self-executing is not treated as federal law for purposes of the Supremacy Clause, however, unless it has been implemented through legislation. The President, acting on his own, cannot implement such a treaty.

Question 24

Who has the power to recognize foreign countries?

Answer 24

Although the Constitution does not specifically state that the power to recognize a foreign country lies solely in the hands of the President, it does provide that the President “shall receive Ambassadors and other Public Ministers.” The President also has the power to nominate ambassadors, as well as the sole power to negotiate treaties. Moreover, historically Congress has acquiesced in the power of the President to recognize a foreign country. Consequently, because the President has exclusive power over the recognition of a foreign country, the court should not grant the injunction because it would require the passport office to recognize a country that the President has not yet recognized.

Question 25

Can Congress pass resolutions disapproving of Agency action?

Answer 25

It is unconstitutional for Congress to legislatively veto an executive action—that is, to retain direct control over the actions of an executive agency, rather than going through the proper channels of passing a bill.

Question 26

Best argument against Congress passing legislation allowing a case that was dismissed with prejudice to be brought again

Answer 26

Congress may not reinstate the right to bring a legal action after the judgment in the action has become final. Requiring a federal court to do so violates the separation of powers doctrine. Once a judicial decision becomes the final word of the federal judiciary with regard to a particular case or controversy, Congress may not declare by retroactive legislation that the law applicable to that particular case was different from what the courts said it was.

Question 27

Congressional v Presidential immunity

Answer 27

Although members of Congress enjoy immunity for statements made in the regular course of the legislative process (i.e., during legislative hearings on a bill), the immunity will not protect statements made outside of Congress. Accordingly, the immunity will not extend to a “re-publication” of a defamatory statement, even if that statement was originally made in Congress. On the other hand, the president enjoys absolute executive immunity to civil suits for money damages for actions while he is in office.

Question 28

What would the court do if a president was alleged to have made slanderous remarks prior to taking office in a presidential debate?

Answer 28

A president does not enjoy immunity from an action for civil liability that stems from conduct before the president took office. In this regard, the president is subject to litigation in the same manner as any private citizen. Accordingly, a court would permit the case to go forward.

Question 29

If a judge, with proper jurisdiction to issue the warrant, improperly grants a search warrant against someone and they issued it with actual malice and sole purpose of harassing the individual, and then that judge is sued for that, should the civil court dismiss the action?

Answer 29

A judge is absolutely immune from civil liability for damages resulting from her judicial acts unless it is clear that the judge did not have jurisdiction. Since the judge in question had jurisdiction to issue the search warrant, the court should dismiss the homeowner’s action.

Question 30

Is the DOD subject to state tax if entered into a state-owned weapons manufacturer?

Answer 30

No. The federal government and its instrumentalities (such as a national bank) are immune from taxation by the states.

Question 31

A federal statute provides that the Secretary of Education may reduce by six percent the distribution of federal education funds to a state that fails to require local elementary schools to observe February 11, the birthday of Thomas Edison, as Inventors’ Day. Of the following, which provides the best support for the Congressional power to enact this statute?

Answer 31

The “General Welfare” Clause of Article I, Section 8 of the United States Constitution This clause gives Congress the power to spend for the general welfare i.e., any public purpose—not just to pursue its other enumerated powers. Although Congress cannot “commandeer” state legislatures by commanding them to enact specific legislation, Congress can use its spending power to accomplish such a result indirectly by conditioning the receipt of federal funding on enacting such legislation. Congressional “encouragement” cannot exceed that point at which pressure turns into compulsion, but because this statute only limits funding by six percent, rather than eliminating it totally or by a large, coercive amount, that does not appear to be applicable on these facts.

Question 32

May Congress authorize states to violate the dormant commerce clause?

Answer 32

Because Congress has exclusive authority over interstate commerce, it may explicitly permit states to act in ways that would otherwise violate the Dormant Commerce Clause.

Question 33

Tests for state tax imposed on interstate and foreign commerce

Answer 33

A state tax imposed on interstate commerce must satisfy the Complete Auto test. Under this test, (i) the activity taxed must have a substantial nexus to the taxing state, (ii) the tax must be fairly apportioned, (iii) the tax may not discriminate against interstate commerce, and (iv) the tax must be fairly related to the services provided by the state. A state tax on foreign commerce must, in addition to meeting the same requirements as a tax on interstate commerce, not (i) create a substantial risk of international multiple taxation or (ii) prevent the federal government from “speaking with one voice” regarding international trade or foreign affairs issues.

Question 34

Dormant Commerce Clause

Answer 34

A state statute violates the Dormant Commerce Clause if it discriminates against out-of-state commerce. The statute in question places a restriction on out-of-state breweries that is not placed on in-state breweries. Accordingly, this statute discriminates against out-of-state breweries and violates the Dormant Commerce Clause. Additionally, although the Twenty-First Amendment recognizes the right of states to regulate the distribution of alcohol, this right is subject to the Dormant Commerce Clause.

Question 35

Twenty First Amendment

Answer 35

The Twenty-First Amendment, in addition to repealing prohibition, specifically gives states the authority to prohibit the transportation or importation of alcoholic beverages into the state for delivery or use within the state.

Question 36

The Employee Retirement Income Security Act (ERISA) provides that specific provisions of the Act “supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” Among those specific provisions is one that requires an employer with a group health plan to provide to each employee who would lose coverage as the result of termination of employment the opportunity to elect continuation coverage under the plan for a period of at least 60 days. Prior to the enactment of the continuation coverage election requirement, a state statute imposed a similar requirement on employers within the state with a group health plan. What is the effect of the federal provision on the state statute? Answers: A. The federal provision preempts the state statute. B. The state statute continues to be effective because it imposes the same requirements as the federal provision. C. The state statute continues to be effective because it only applies to employers within the state. D. The state statute continues to be effective because it was enacted before the federal provision.

Answer 36

Answer choice A is correct. Under the Supremacy Clause of Article VI, Section 2 of the U.S. Constitution, a federal law that expressly prohibits state regulation of a matter preempts state law on that matter. Here, ERISA provides that specific provisions of the Act, including the provision that addresses the right of an employee to elect continuation of health care coverage under an employer’s group health plan, preempt state laws with regard to this right. Consequently, the state statute that provides for this right is expressly preempted. Answer choice B is incorrect because, even though the state law is consistent with the federal provision, the federal law expressly preempts the state law. Answer choice C is incorrect because federal law, as the “law of the land,” applies to all states unless otherwise limited. The fact that the state law was limited to employers within the state does not protect it from preemption by a federal law that applies throughout the United States. Answer choice D is incorrect because the language of the federal law expressly preempts existing as well as future state regulation of this employee right.

Question 37

What is required for the government to seize real and personal property in light of procedural due process?

Answer 37

Generally, the government is required to provide the owner of real property with notice and a hearing prior to seizure of the property pursuant to a forfeiture statute. However, the government does not need to provide notice prior to the seizure of personal property.

Question 38

When is a hearing required for a public employee who can only be fired for cause? When can that timing be changed?

Answer 38

Generally, a public employee who may be discharged only for cause has a property interest in her job, and therefore is entitled to notice of termination and a pre-termination opportunity to respond. A formal pre-termination hearing, however, is not required. If there is a significant reason for immediately removing a “for-cause” employee from the job, a prompt post-termination hearing with reinstatement and back pay if the employee prevails constitutes sufficient due process.

Question 39

Is it a violation of due process if a judge fails to recuse herself after determining state law does not require her to recuse herself? Further, may the Supreme Court hear such a case?

Answer 39

Due process entitles a person to a fair decision maker. A judge must recuse herself when she has a direct, personal, substantial, pecuniary interest in a case or there is a serious risk of actual bias.

Question 40

Can a public officially successfully seek reinstatement if fired in retaliation for speech made as a citizen about a matter of public concern?

Answer 40

When a government employee contends that his rights under the Free Speech Clause of the First Amendment have been violated by his employer, the employee must show that he was speaking as a citizen on a matter of public concern. In determining whether a government employee is speaking pursuant to his official duties, the critical question is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties. When a public employee is speaking about a matter of public concern as a citizen rather than as employee, the First Amendment interest of the employee must be balanced against the interest of the state, as an employer, in effective and efficient management of its internal affairs.

Question 41

A state statute flatly bans the sale or distribution of contraceptive devices to minors. A national retailer of drugs and related items is charged with violating this state statute. Which of the following is the strongest constitutional argument the retailer could make in defending itself against prosecution for violation of this statute? Answers: A. The statute constitutes an undue burden on interstate commerce. B. The statute denies minors one of their fundamental rights without due process. C. The statute denies the retailer a privilege or immunity of state citizenship. D. The statute violates the First Amendment right to freedom of religion because it regulates morals.

Answer 41

Answer choice B is correct. If the retailer is able to argue that the government action affects a fundamental right, such as the right to privacy, then strict scrutiny will apply to the statute and judicial review. The state would then need to prove that the law is necessary to achieve a compelling government interest. Answer choice A is incorrect because challenges based on interstate commerce will be reviewed at lower levels of scrutiny rather than strict scrutiny applicable here. Answer choice C is incorrect because a fundamental right analysis would require the application of the strict scrutiny test, making it a stronger argument for the retailer. Answer choice D is incorrect because it goes too far to presume the exercise of religion is implicated.

Question 42

Substantive Due Process Standard: Access to the Ballot

Answer 42

Unlike voting rights, access to the ballot is not a fundamental right. Therefore, burdens on access to the ballot are not subject to strict scrutiny. The state has a legitimate interest in regulating the election process, though that interest must be weighed against the use of unfair ballot access rules used to favor incumbents.

Question 43

Standard of review for legislation related to zoning

Answer 43

Most legislation related to zoning is reviewed under the rational basis standard, and a law meets that standard if it is rationally related to a legitimate state interest. Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational. In court, the government’s stated interest in enacting the law need not be one that it offered when the law was passed

Question 44

Standard of review for legislation that lengthens the education requirements for a given profession and that does not grant exemption for those already pursuing the requisite degree

Answer 44

Because the statute does not discriminate against a suspect or quasi-suspect class, and does not infringe upon a fundamental right, the statute is subject to the rational basis test. Under this standard, the statute is presumed valid until the plaintiff establishes that the law is arbitrary or irrational.

Question 45

Standard of review and burden of persuasion for a challenge of a public school rule that male student athletes hair cannot be longer than 4 inches and the challenge is for a right to wear hair as he pleases

Answer 45

The standard of review to which governmental action is subjected when challenged on substantive due process grounds depends on the right asserted by the plaintiff. If the plaintiff is asserting a fundamental right, the government must establish that its requirement is the least restrictive means to achieve a compelling governmental interest. If a fundamental right is not involved, the plaintiff must show that the restriction does not bear a rational relationship to a legitimate government interest. Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational.

Question 46

What are the best grounds to challenge a statute in which Congress passes a federal law requiring tolls be paid at all borders, with out-of-state drivers being required to pay an extra toll and leave a credit card on file in the event of an accident

Answer 46

The Due Process Clause of the Fifth Amendment applies against the federal government, and provides that “no person shall be…deprived of life, liberty, or property, without due process of law.” The Due Process Clause contains a substantive component that guarantees certain fundamental rights, including the right to travel among the states. This includes the right to enter one state and leave another and to be treated as a welcome visitor. Because this law impinges on a fundamental right, it is subject to strict scrutiny.

Question 47

Is it likely constitutional for state law to prohibit anyone convicted of a felony from voting?

Answer 47

As permitted by Section 2 of the Fourteenth Amendment, a state may prohibit a felon from voting, even one who has unconditionally been released from prison.

Question 48

Standard of review for a state statutory formula for allocating funds to local schools based on wealth

Answer 48

A disparity among school districts in the state funding of public education that constitutes discrimination on the basis of wealth is subject to the rational basis standard because wealth is neither a suspect nor a quasi-suspect class. In addition, while education is of major significance to both the individual and society, there is no fundamental constitutional right to education. Consequently, the allocation formula is subject to the rational basis standard.

Question 49

A federal statute requires United States civil service employees to retire at age 75. However, that statute also states that civil service employees of the armed forces must retire at age 65. A 65-year old service employee of the Department of the Army seeks a declaratory judgment that would forbid his mandatory retirement until age 75. The strongest argument that the employee can make to invalidate the requirement that he retire at age 65 is that the law Answers: A. Denies him a privilege or immunity of national citizenship. B. Deprives him of a property right without just compensation. C. Is not within the scope of any of the enumerated powers of Congress in Article I, Section 8. D. Invidiously discriminates against him on the basis of age in violation of the Fifth Amendment.

Answer 49

Answer choice D is correct. The Supreme Court has held that the Fifth Amendment Due Process clause includes rights guaranteed by the Equal Protection Clause of the Fourteenth Amendment, thereby making discrimination by the federal government subject to review under the same standards as the states. The Equal Protection Clause of the Fourteenth Amendment prohibits government discrimination of similarly situated individuals. The employee's strongest argument is that the law treats him unfairly due to his age, which is a non-suspect classification. Note that laws and other governmental actions classifying on the basis of age are reviewed under the rational basis standard. A law meets the rational basis standard of review if it is rationally related to a legitimate state interest, and the burden here would be on the employee. Answer choice A is incorrect because it misstates the law with regards to privileges and immunities. Answer choice B is incorrect because it misstates the law with regards to takings. Answer choice C is incorrect because Congress can legislate, but it must do so fairly.

Question 50

Twenty years ago, a federal district court found that a city school district, but not surrounding suburban school districts, had violated the Constitution; the district court issued a complex desegregation order. At the time integration efforts began, the city school district was 70 percent white. The city school district is now only 25 percent white. This decline was largely due to white families either moving to surrounding suburbs outside of the city school district or sending their children to private schools within the school district. To attract those white students back into the district schools, and to limit any further movement of white students from the district, the court orders the city school district to build five expensive, state-of-the-art magnet schools. For which of the following purposes is this order unconstitutional? Answers: A. Attracting white students from the surrounding suburban school districts into the district's schools. B. Attracting white students out of private schools located within the city school district. C. Limiting any further withdrawal of white students from the city school district. D. Forcing a state to spend public funds in a particular way that the state would not otherwise wish to do so.

Answer 50

Answer choice A is correct. Because discrimination must be intentional in order to violate the Constitution, only intentional (de jure) segregation in schools violates the Equal Protection Clause. A court cannot impose a remedy that involves multiple school districts unless there is evidence of intentional segregation in each district. If there is no such evidence, a federal district court can only remedy constitutional violations (i.e., race discrimination) that occurred within a particular school district. Hence, the court can issue orders that aim to keep white students in the district schools or to attract white students in private schools within the district to its public schools. However, the court cannot seek to attract white students from surrounding suburbs into the district without evidence of discrimination in the suburbs. For this reason, answer choice B is incorrect because it would be constitutional to implement a remedy within a particular school district, whether between private and public schools or not. Answer choice C is incorrect because the court is not involving multiple school districts. Answer choice D is incorrect because a federal court, in fashioning a remedy for a constitutional violation, may compel a state to expend public funds in a way that the state would not otherwise wish to do so.

Question 51

Is a statute, passed without hearings or public notice but signed by the president, terminating social security for resident aliens because of budgetary shortfalls constitutional?

Answer 51

Because Congress has plenary power over aliens under Article I, a federal alienage classification is likely valid unless it is arbitrary and unreasonable. Since the reason for the law (i.e., to reduce the deficit) is rational, it is constitutional.

Question 52

Can a state give a tax reduction with the condition that to qualify the individual must be a US citizen?

Answer 52

No, because the tax break offered to specific citizens by the state violates the Equal Protection Clause. Generally, a state law that discriminates against aliens is subject to strict scrutiny under the Equal Protection Clause and will be struck down. While a state law that restricts or prohibits an alien’s participation in government functions is subject only to a rational basis review, this statute does not fall within that category.

Question 53

Standard of review for state school discrimination based on gender

Answer 53

Discrimination based on gender is “quasi-suspect” and subject to intermediate scrutiny, which is less stringent than strict scrutiny but tougher than the rational basis test. Just as with suspect classifications and fundamental rights, there must be discriminatory intent by the government to trigger intermediate scrutiny. Even if discriminatory intent can be shown, under intermediate scrutiny, the burden is on the state to show that a statute or regulation that treats the sexes differently is substantially related to an important governmental interest.

Question 54

Can a state legislature pass a law prohibiting cities from recognizing gay or lesbian as a protected class in response to several cities passing such ordinances forbidding discrimination against lesbian and gays

Answer 54

The Supreme Court has struck down bans on same-sex marriage as violations of a fundamental right on both Due Process and Equal Protection grounds, but it has not resolved the issue of whether discrimination based on sexual orientation is subject to heightened scrutiny. Regardless of whether heightened scrutiny applies here, the government cannot impose a burden on or deny a benefit to a group of persons solely based on animosity toward the class that it affects. In this case, a court would likely strike down the law because it does not satisfy the rational basis test.

Question 55

Can a state deny criminal appeals based on an inability to pay a required fee?

Answer 55

No. While most state actions that discriminate against the poor are subject only to rational basis scrutiny, the availability of appeal in a criminal case cannot hinge on ability to pay a filing fee. To deny an indigent the right to appeal through the imposition of a fee violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Question 56

Assume for the purposes of this question that you are counsel to the state legislative committee that is responsible for real estate laws in your state. The committee wants you to draft legislation to make all restrictions on land use imposed by deeds (now or hereafter recorded) unenforceable in the future so that public land-use planning through zoning will have exclusive control in matters of land use. Which of the following is LEAST likely to be a consideration in the drafting of such legislation? Answers: A. Compensation for property rights taken by public authority. B. Impairment of contract. C. Sovereign immunity. D. Police power.

Answer 56

Answer choice C is correct. The government has the power to take private property for public purposes under the doctrine of "eminent domain." This power is limited under the Fifth Amendment to prevent such a taking without a legitimate public purpose or exercise of the government's police power and must be accompanied by "just" or fair compensation. Sovereign immunity would not be relevant to enacting a statute such as the one posed in this question, which makes it the least likely to be a consideration. Answer choice A is incorrect because compensation is an important consideration when property is taken by public authority. Answer choice B is incorrect because state law cannot impair the obligation of contracts unless the government can demonstrate that the interference was reasonable and necessary to serve an important government interest. Answer choice D is incorrect because if the government is using its police power to regulate land use without compensation, the regulation must be rationally related to a legitimate state interest.

Question 57

A state passed a law prohibiting the construction of any structure within 100 feet of the shoreline of an inland lake. A landowner owned a piece of empty lakefront property that extended 200 feet beyond the shoreline. The landowner sued the state, alleging that the law constituted a taking. Which of the following, if raised at trial, would not factor into the court’s determination of whether or not a taking has occurred? Answers: A. The degree to which the law benefits society at large. B. Whether the law substantially advances a legitimate government interest. C. The owner’s intentions in possessing the property. D. The owner’s ability to sell the property to a third party.

Answer 57

Answer choice B is correct. Generally, a governmental regulation that adversely affects a person’s property interest is not a taking, but when a regulation so substantially hinders a person’s property interest as to make it virtually valueless, that law may be considered a “regulatory taking.” In determining whether a regulation constitutes a taking, the court will consider: (1) the economic impact of the regulation on the property owner; (2) the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding his use of the property; and (3) the character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property. A court generally will not examine whether a regulation substantially advances a legitimate governmental interest. Here, all the factors are valid considerations for the court except whether or not the law advances a legitimate government interest. Answer choice A is incorrect because a court may consider the degree to which a law will benefit society. Answer choice C is incorrect because the court may consider the extent to which the law interferes with the owner’s reasonable expectations regarding the use of his property; if the owner had purchased the property with no intent to build a structure on it, his claim would be significantly weakened. Answer choice D is incorrect because the ability to resell the property speaks to the economic impact of the property regulation to the owner. It may also be relevant in determining whether any one of the essential attributes inherent in property ownership has been violated.

Question 58

On the substantive constitutional issue, what is the likely result for a federal aid for education program in which teachers salaries are essentially subsidized, provided that the subsidy is not paid to those teachers who teach religious subjects?

Answer 58

Held unconstitutional, because the policing of the restriction would amount to an excessive entanglement with religion.The Establishment Clause of the First Amendment prohibits the establishment of religion by government. Government also cannot show a preference of one religion over another. If a government action does impact religion, it will only be valid if (i) it has a secular purpose, (ii) the principal effect neither advances nor inhibits religion, and (iii) it does not result in excessive entanglement of government with religion. Here, it would take "excessive entanglement" to determine what constitutes "instruction in religious subjects." This directly invalidates the provision under the appropriate test.

Question 59

Is it constitutional for a middle school principal to request a clergy member to deliver a prayer at a graduation ceremony?

Answer 59

No, because it violates the Establishment Clause of the Constitution.Generally, religious activities conducted in public schools violate the Establishment Clause. A nondenominational prayer led by a cleric at public school graduation ceremonies has been held invalid as clearly promoting religion. Here, the clergy member’s delivery of a prayer at the public middle school’s graduation ceremony would violate the Establishment Clause, and is thus unconstitutional.

Question 60

Is it constitutional for a state to allow a tax exemption for religious publications if it requires the publisher to demonstrate to a tax official that it is a religious organization, if that statute also specifies that the official may not question the reasonableness of the applicant's religious beliefs?

Answer 60

No, because the sales tax exemption is confined solely to religious organizations. Under the Lemon test, a governmental action that benefits religion is valid if (i) it has a secular purpose, (ii) its principal or primary effect neither advances nor inhibits religion, and (iii) it does not result in excessive government entanglement with religion. In this case, this exemption does not result in excessive government entanglement with religion because the procedure to obtain an exemption only requires a single interaction with a state official. However, this exemption does not have a secular purpose and advances the interests of religious organizations. Consequently, it violates the Establishment Clause of the First Amendment.

Question 61

A minister is fired in violation of the ADA and files suit seeking reinstatement and back pay, and the church files for summary judgment, should the court grant the summary judgment?

Answer 61

Yes, because the Free Exercise clause of the First Amendment supports the dismissal. In Hosanna – Tabor Evangelical Church and School v. EEOC, 132 S.Ct.694 (2012), the Supreme Court unanimously recognized the existence of a “ministerial exception” grounded in the First Amendment Religious Clauses that precluded the application of employment discrimination laws concerning the employment relationships between a religious organization and its ministers. Requiring a church to accept or retain an unwanted minister interferes with the internal operations of a religious organization in violation of the Free Exercise and Establishment Clauses of the First Amendment.

Question 62

A public square located in a major city contained a number of statues of historical figures, including religious ones. Members of various religions came to the square to pray in front of the religious statues. One religious statue depicted the founding member of a particular religious sect. Under the sincerely held beliefs of the sect, sect members were not permitted to worship or pray at any religious statue until sundown. The sect used the statue in the square as a place of worship and prayer on a regular basis, considering it sacred. As a result of an outbreak in crime in the square at night, the city enacted an ordinance prohibiting the presence of any persons in the square after sundown. The sect challenged the ordinance on the ground that it violated the Free Exercise Clause. Will the sect’s challenge to the ordinance be successful? Answers: A. No, because the ordinance was not enacted to target the sect’s religious practices. B. No, because the ordinance is a valid time, place, or manner restriction. C. Yes, because the ordinance restricted the sect’s religious practices. D. Yes, because the ordinance did not impact the practice of other religions.

Answer 62

Answer choice A is correct. Generally, only state laws that intentionally target religious conduct are subject to strict scrutiny. Neutral laws of general applicability that have an impact on religious conduct are subject only to the rational basis test. In this case, there are no facts to suggest that the ordinance was enacted to intentionally target the sect’s religious conduct. Instead, the ordinance was enacted due to an outbreak of crime at night in the square. Although the ordinance has a disparate impact on the sect’s exercise of religion, the ordinance is a neutral law of general applicability, subject only to rational basis review. Therefore, the sect’s challenge will not be successful. Answer choice B is incorrect. The ordinance is a valid time, place, or manner restriction because it restricts the time in which a person can conduct speech and related activities in the square, a public forum, and does not do so based on the content of the speech. However, the challenge here was brought under the Free Exercise Clause, not a freedom of speech challenge. Thus, the analysis is concerned with whether the ordinance intentionally targeted this particular religious sect, regardless of whether it was a valid time, place, or manner restriction. Answer choice C is incorrect. The mere fact that the ordinance restricted the sect’s religious practices, without evidence that the ordinance intentionally targeted the sect, is not enough to render the ordinance unconstitutional. Answer choice D is incorrect because the existence of a disparate impact on a particular religion is not sufficient in and of itself to constitute a violation of the Free Exercise Clause.

Question 63

Is it constitutional for a state law to limit corporate and institutional donors' contributions to candidates and ballot measures to $500?

Answer 63

No, because a law may not limit the contributions to ballot measures. Statutes limiting campaign contributions are subject to intermediate scrutiny: they must be “closely drawn” to correspond with a sufficiently important interest. Laws may limit contributions to individual candidates, but not to ballot measures. This law is limiting contributions to ballot measures and is therefore unconstitutional.

Question 64

Should a court rule in favor of a police chief that fires a police officer for a porn video the officer posted online in which the officer wore fake police uniform and identified as an officer, and in which the officer states is parody for how an officer should act?

Answer 64

For the police chief, because the officer’s video did not constitute speech on a matter of public concern. When a government employee contends that his rights under the Free Speech Clause of the First Amendment, as made applicable to state and local government action through the Fourteenth Amendment, have been violated by his employer, the employee must show that he was speaking as a citizen on a matter of public concern. Here, the police officer cannot establish that a sexually explicit video that is a parody of improper police behavior deals with a matter of public concern.

Question 65

What is the proper burden of proof for a challenge of a state statute that prohibits "all speech-making, picketing, and public gatherings of every sort on the Capitol steps in front of the main entryway between 7:45 a.m.-8:15 a.m., 11:45 a.m.-12:15 p.m., 12:45 p.m.-1:15 p.m., and 4:45 p.m.-5:15 p.m. on Capitol working days."?

Answer 65

The state would have to prove that it had a compelling need for this statute and that there were no less restrictive means by which it could satisfy that need. Applicable to the states via the Fourteenth Amendment, the First Amendment generally prohibits the government's ability to restrict speech. However, the government may regulate the time, place, and manner of speech in a public forum (which can be traditional or designated) so long as the law is (i) content neutral, (ii) narrowly tailored to serve a significant government interest, and (iii) leaves open alternate channels of communication for the speaker.

Question 66

What is the proper standard for review of a city ordinance that limits the number of signs that can be displayed on public property and sets a time period before and after an event in which that sign could be displayed?

Answer 66

It must be the least restrictive means for accomplishing a compelling governmental interest. This regulation is a restriction on speech that is content-based on its face. The regulation applies to one specific topic (upcoming events) and subjects that speech to different--and more onerous--requirements than any other signs. Therefore, the city’s ordinance will be judged by a strict scrutiny standard. Answer choice A is incorrect because it states the standard for time, place, and manner restrictions. However, this is a content-based restriction, so strict scrutiny applies.

Question 67

While PTSD is not common in car crash victims, a state enacted legislation prohibiting any licensed psychotherapist from sending mailings that raised concern of PTSD to any car accident victim in the state until 30 days after the accident. This was also done to protect the reputation of psychotherapists in the state. Is it constitutional?

Answer 67

Yes, because the law protects the privacy of accident victims and the public regard for psychotherapy without being substantially more restrictive than necessary. The law is constitutional, because it satisfies the First Amendment standards for government restrictions on commercial speech. The mailings contain commercial speech, because they advertise services provided by the psychotherapists. A restriction on commercial speech is subject to a form of intermediate judicial scrutiny, requiring the government to show that the restriction directly advances an important or substantial government interest and that the restriction is not substantially more extensive than necessary to protect that interest. The law here satisfies that standard; the 30-day waiting period for the psychotherapists' mailings narrowly serves the government's substantial interests in protecting both the privacy of accident victims and the public regard for psychotherapy.

Question 68

Regulations on electronic billboards, and one such regulation prohibits displays of violence. What is the appropriate standard of review?

Answer 68

As a content regulation, it must be necessary to achieve a compelling governmental interest. Although viewpoint neutral, the state highway administration’s rule is a content-based regulation of speech because it prohibits the graphic display of violence. As such, the strict scrutiny standard of review applies. The rule must be necessary to achieve a compelling governmental interest.

Question 69

A reporter breaks into a corporation and steals documents that show the corporation is concealing something and the newspaper publishes the stories, and the corporation sues both the reporter for trespass and the newspaper for publishing illegally obtained facts, can it recover?

Answer 69

Yes, the corporation can recover from either the newspaper or the reporter. the press has no greater First Amendment rights than does the general public. There is no special privilege allowing the press to invade the rights of others. Members of the press are not immune from the application of generally applicable laws, even if the application of such laws has a negative incidental effect on the ability to gather and report the news. The First Amendment shields the media from liability for publishing information that was obtained illegally by a third party as long as the information involves a matter of public concern and the publisher neither obtained it unlawfully nor knows who did. Here, the newspaper likely knew the information was not lawfully obtained and certainly knows who obtained the information. Therefore, the corporation can recover against both the reporter and the newspaper.

Question 70

A state required its political parties to allow every registered voter in the state to vote in party primaries. A newly-formed state party wanted to hold a primary to pick its presidential electors, but the national party with which the state party was affiliated required that electors be chosen only by party members. A neighboring state prohibited independents from voting in party primaries. A long-established third party hoped to finally secure the governor’s mansion, which it felt hinged on the ability to attract a large percentage of the independent voters. Both the newly formed state party and the established third party challenged their respective states’ primary regulations in federal court as unconstitutional. What will be the outcome of these lawsuits? Answers: A. Both the newly-formed state party and the established third party will prevail. B. The newly-formed party will prevail, but the established third party will lose. C. The established third party will prevail, but the newly-formed party will lose. D. Both the newly-formed party and the established third party will lose.

Answer 70

Answer choice A is correct. A state cannot require a local party to participate in an open primary (i.e., a primary in which any voter in the state may vote in a political party's primary) to choose presidential electors where the national party has required that electors must be chosen only by party members. In addition, a state may not prohibit a political party from allowing independents to vote in its primary. Answer choice B is incorrect because states cannot prohibit political parties from allowing independents to vote in primaries. Answer choice C is incorrect because open primaries cannot be required by the state. Answer choice D is incorrect because both statutes are unconstitutional. (Note: The length of time that the political party has been in existence is irrelevant for this purpose.)

Question 71

A state adopted a blanket primary system for choosing elected state officials. Under this system, all candidates participate in a single primary election in which all voters cast ballots. A voter is free to vote for any candidate, and a member of one party may vote for a candidate affiliated with another party. The two candidates who receive the greatest number of votes, regardless of party, advance to the general election. On the ballot, the candidates are identified only by name. Each political party is free to select its nominee by whatever method it chooses. Is this primary system likely to withstand a constitutional challenge? Answers: A. No, because a state must permit a candidate to designate the candidate’s party affiliation on the ballot. B. No, because a blanket primary system is per se unconstitutional. C. Yes, because a state is free to design and conduct a primary as it sees fit. D. Yes, because the primary system doesn’t determine a party’s nominee.

Answer 71

Answer choice D is correct. A state may institute a blanket primary system in which all voters participate. However, the First Amendment freedom of expression and association prohibit states from interfering with a political party’s endorsement of a candidate or selection of a candidate. Because this system does not appear to do either one, it is likely constitutional. Answer choice A is incorrect because a state is likely not required to designate the political party with which a candidate is associated. A state may refuse to list a candidate’s party affiliation, despite being chosen as the party’s candidate, when the candidate has also been selected by another party as its candidate. Since the refusal did not impose a severe burden on the party’s rights, it does not face the strict scrutiny test. Answer choice B is incorrect because a blanket primary is not unconstitutional. Answer choice C is incorrect because while a state is generally free to design and conduct a primary as it sees fit, a state is subject to constitutional restrictions, such as the First Amendment.

Question 72

Is an ordinance that prohibits a private organization from discriminating based on political viewpoints constitutional?

Answer 72

No, because the organization's right to freedom of association allows it to refuse to admit potential members who do not adhere to its mission statement. The residents are not likely to prevail in their claim, because it would violate the environmental organization's First Amendment right to freedom of association if the state were to force the organization to accept the residents as members. The U.S. Supreme Court has held that the forced inclusion of an unwanted person in a group violates the group's freedom of association if including that person would significantly affect the group's ability to express its viewpoints. The freedom of association entitles the environmental organization to refuse membership to the residents, because admitting them would effect a change in the organization's viewpoint on the mining operations.

Question 73

What is the best constitutional argument for a new party in a state that is being denied access to the ballot?

Answer 73

The Fourteenth Amendment. The most helpful constitutional argument for the new party is discrimination against candidates from smaller parties. Although there is no fundamental right to be a candidate for political office, state election laws imposing undue burdens on placing new or small parties on the state ballots must serve a compelling state interest in the regulation of a subject within the state's constitutional power. Although it is generally permissible to require voters’ signatures on a petition and payment of filing fees, plaintiffs’ strongest argument under these facts is that the large filing fee and the requirement that the petition be signed by actual (as opposed to registered) voters are preclusive measures in violation of equal protection.

Question 74

A newly enacted state criminal statute provides, in its entirety, "No person shall utter to another person in a public place any annoying, disturbing, or unwelcome language." A man followed an elderly woman for three blocks down a public street, yelling in her ear offensive four-letter words. The woman repeatedly asked him to leave her alone, but he refused. In his subsequent prosecution, the first under this statute, the man Answers: A. Can be convicted. B. Cannot be convicted, because speech of the sort described here may not be punished by the state because of the First and Fourteenth Amendments. C. Cannot be convicted, because, though his speech here may be punished by the state, the state may not do so under this statute. D. Cannot be convicted, because the average user of a public street would think his speech/action here was amusing and ridiculous rather than "annoying," etc.

Answer 74

Answer choice C is correct. Freedom of expression is not absolute. Some government restrictions are permissible, provided that the content of protected speech is not being restricted. Here, the statute defines the offensive speech as "annoying," which is overly broad and vague. However, government may restrict speech on the basis of content if the speech is unprotected speech, such as speech that incites an immediate breach of the peace (i.e., "fighting words"). The speech here is likely sufficient to constitute fighting words because the man yelled at an elderly woman for three blocks even after she repeatedly asked him to stop; an immediate breach of the peace was therefore likely. However, the statute would not meet strict scrutiny as applied to its regulation of the content of protected speech. Answer choice A is incorrect because words that are simply annoying or offensive are not fighting words; there must be a genuine likelihood of imminent violence by a hostile audience. Answer choice B is incorrect because the state could regulate the speech if it did so with a narrowly construed and well-defined statute. Answer choice D is also incorrect because a statute that attempts to prohibit "annoying" speech is overbroad.

Question 75

If a welfare beneficiaries benefits are to be terminated, when is a hearing required for due process?

Answer 75

He is entitled to notice and hearing BEFORE termination.

Question 76

Can Congress expand or create new Constitutional rights?

Answer 76

No. Under Section 5 of the Fourteenth Amendment, Congress can only enforce constitutional rights as declared by the Supreme Court—not create new rights.

Question 77

In the Labor Management Relations Act, Congress expressly authorized the president to seize plants to avert a labor shutdown if the president determined that a shutdown would threaten national security. In response to a threatened national strike by America’s steel workers, the president ordered the government to seize and operate steel mills to ensure steel production that the president deemed vital to the War on Terrorism and hence to national security. Subsequent to the order, Congress did not explicitly approve or disapprove of the president’s action. One of the companies affected by the president’s order filed a suit in an appropriate federal court claiming that the order violated the Constitution. What is the most likely ruling? A. Congress unconstitutionally delegated its legislative power to the president because the statutory standard—that a shutdown would “threaten national security”—does not provide a specific, intelligible standard. B. The president lacked power as Commander-in-Chief to take this action because it involved domestic affairs, not military decisions in the foreign theater of war. C. The president had Article II power to take this action. D. The president’s action would be lawful only if Congress explicitly approved it.

Answer 77

Answer choice C is correct. Presidential power under Article II is greatest when the president acts pursuant to Congressional authorization. Here, Congress expressly authorized the president to seize plants to prevent a shutdown that would threaten national security. Answer choice A is incorrect because, although the delegation of legislative power to the executive is subject to the requirement that the exercise of such power must be subject to a specific, intelligible standard, the Supreme Court has so loosely interpreted this requirement that almost any standard has satisfied this requirement. Answer choice B is incorrect because the President generally can take domestic action to protect national security where Congress has authorized him to do so. Answer choice D is incorrect because where (as here) Congress has broadly authorized the President to take an action (seizing domestic plants) if he determines that national security is at stake, the action is valid and does not need any later congressional approval.

Question 78

A federal statute provides that “all persons within the United States shall have the same right in every state to make and enforce contracts as is enjoyed by white persons.” The Supreme Court interpreted this statute as applying to all contracts, including private contracts. A black citizen of a state in the United States claims that an appliance store in her state violated this statute by refusing to enter into a sales contract with her because of her race. The appliance store defended on the ground that the statute is unconstitutional. A federal court would be most likely to uphold this statute by relying upon which provision of the Constitution? A. The Thirteenth Amendment B. The Contracts Clause C. The General Welfare Clause D. The Equal Protection Clause of the Fourteenth Amendment

Answer 78

Answer choice A is correct. Unlike the Fourteenth Amendment and the Contracts Clause, the Thirteenth Amendment does not require state action. Rather, it abolishes slavery and its “badges and incidents,” including racial discrimination in private transactions like contracts. Moreover, Section 2 of the Thirteenth Amendment authorizes Congress to enact legislation to implement its guarantees. Answer choices B and D are incorrect because, as mentioned, the Contracts Clause and the Fourteenth Amendment protect against wrongful conduct by the government, rather than a private party such as the appliance store. Answer choice C is incorrect. The General Welfare Clause permits Congress to exercise its spending and taxing powers for any public purpose, but it does not create a specific power to legislate for the public welfare in general. The facts do not indicate that the statute was part of a taxing and spending scheme, so the General Welfare Clause does not apply.

Question 79

Based on an advertisement in a local newspaper, a state resident bought a cross-country roundtrip ticket on a national airline for $450. The ad did not mention that the airline charged $75 for any changes to a ticket. Because of illness, the state resident had to change her return flight, and the airline charged her $75. The state resident refused to pay, citing a state law that required any ad for the sale of tickets for any event or trip to clearly disclose any monetary penalties for changing tickets. The airline sued the state resident in federal court for the unpaid fee, arguing that the state law is invalid, citing a federal statute prohibiting states from enforcing any law “relating to the rates, routes, or services” of any airline. Will the airline prevail? A. Yes, because, under the Freedom of Press Clause of the First Amendment, the content of commercial speech may not be regulated. B. Yes, because Congress has occupied the field of airline rates, routes, and service and hence has preempted the state law. C. No, because the court will apply the presumption against preemption. D. No, because the state law does not conflict with the federal statute.

Answer 79

Answer choice B is correct. The language of the federal statute indicates a specific intent by Congress to preempt the field of airline regulations with regard to rates, routes, and services. Under the Supremacy Clause, federal law preempts state law when Congress has enacted legislation that explicitly prohibits state regulation in the same area. Answer choice A is incorrect because commercial speech is subject to content regulation. The Freedom of Press Clause does not grant the press greater free speech rights than the public at large enjoys. Answer choice C is incorrect because, although there is a judicially recognized presumption against preemption with respect to a conflict between state and federal law, this presumption is rebuttable if Congress has manifested its intent to preempt state law, as is the case here. Answer choice D is incorrect because, although the state law does not purport to deal specifically with interstate commerce in general or airline travel specifically, there is clear conflict between the federal statute and the state law with respect to the fee charged by the airline.

Question 80

In a state known for its game fish, there are many guide-led fishing expeditions marketed to tourists. The state enacted a statute that required all fishing guides who charge a fee to have a license. The purpose of the statute is to protect the state’s game fish from overfishing. The license costs $100 for in-state residents and $300 for out-of-state residents. If an out-of-state resident challenges the constitutionality of this statute, what is the most likely result? A. The statute will be struck down under the Privileges and Immunities Clause of Article IV, Section 2. B. The statute will be struck down under the Equal Protection Clause. C. The statute will be upheld because engaging in fishing is not a fundamental right. D. The statute will be upheld because regulation of fishing is traditionally a state, rather than national, function.

Answer 80

Answer choice A is correct. The Article IV Privileges and Immunities Clause prohibits a state from discriminating against nonresidents with respect to the exercise of a fundamental right or engagement in an essential activity, such as earning a living, unless there is substantial justification for the discrimination. Here, the state imposed a fee on nonresidents that was three times greater than the fee on residents. While nonresidents may contribute to the problem that the state was seeking to address (i.e., overfishing), there are other means of addressing this problem, such as limiting the amount of fish that can be caught, that are less restrictive on the rights of nonresidents. Answer choice B is incorrect because, since nonresident fishing guides are not members of a suspect classification, the rational basis standard is applied to determine whether the statute violates the Equal Protection Clause. Under this standard, the statute is likely to be upheld since indirectly limiting the number of guides could reduce the number of individuals who go fishing and thereby the number of fish caught. Answer choice C is incorrect because, although engaging in fishing is not a fundamental right, the right to earn a livelihood is an essential activity for purpose of the Article IV Privileges and Immunities Clause. Answer choice D is incorrect because, even if the state has traditionally regulated fishing, the state cannot do so in a manner that violates individual rights set forth in the Constitution. The conflict here is not between a state statute and a federal statute, but between the state statute and the Constitution.

Question 81

Congress has enacted many laws regulating navigation generally, but not regarding the specific subject of water pollution by ships sailing on navigable bodies of water. A state enacted a law prohibiting any ship from discharging specified pollutants, including oil, into the navigable waterways of the state. Violation of the law was punishable by fines based on the amount of the discharge. The law is necessary to the important state interest of preventing pollution; there are no reasonable alternatives available. In addition, the benefits of the law to the state outweigh the burdens it imposes on interstate commerce. A ship owner from another state is fined pursuant to this law for discharging oil into a waterway in the state. Will the ship owner’s challenge of the state law as unconstitutional be successful? A. Yes, because the law regulates interstate commerce, which may be regulated only by Congress. B. Yes, because the fine constitutes an impermissible ad valorem tax. C. No, because the law is necessary to the important state interest of preventing pollution and there are no reasonable alternatives available. D. No, because the law does not discriminate against interstate commerce and does not impose an undue burden on interstate commerce.

Answer 81

Answer choice D is correct. The Dormant Commerce Clause requires that a state law not discriminate against out-of-state commerce and not constitute an undue burden on interstate commerce. The law in question satisfies these two requirements. Answer choice A is incorrect because although Congress has the power to regulate interstate commerce, if Congress has not acted with respect to a particular aspect of interstate commerce, a state may regulate that aspect. Answer choice B is incorrect because the law imposes a fine, not a tax. Even if the fine were construed to constitute a tax, it is not assessed on the value of property, and therefore is not an ad valorem tax. Answer choice C is incorrect because, since the law does not discriminate against out-of-state commerce, it is irrelevant that the law satisfies the exception that permits discriminatory laws if they are necessary to an important state interest.

Question 82

Is it constitutional for a city to have a complete ban on all adult entertainment establishments?

Answer 82

No. Under the First Amendment, a city can regulate adult entertainment establishments (e.g., by localizing them in a particular area), but cannot impose a blanket ban on all pornography. It does not matter that (i) the city might have legitimate reasons for such a ban (e.g., decreasing crime), or (ii) other neighboring cities allow such establishments.

Question 83

The Occupational Safety and Health Act of 1970 (OSHA) required all private employers in America to meet certain minimum federal standards to ensure safe and healthful work environments. Recently, Congress amended OSHA, extending its coverage requirements to state and local government employers. A state sued in an appropriate federal court, challenging the constitutionality of this amendment. Will the court likely uphold the amendment as constitutional? A. No, because the amendment violates the Tenth Amendment. B. No, because the amendment violates fundamental principles of federalism, because Congress has directly impaired the states’ ability to carry out their integral governmental functions. C. Yes, because the amendment merely affects the activities of states acting in their proprietary capacity. D. Yes, because the amendment is a valid exercise of Congress’s Commerce Clause power.

Answer 83

Answer choice D is correct. The amendment regulates an intrastate economic activity (i.e., the workplace itself) that has a substantial effect on interstate commerce. Answer choices A and B are incorrect because neither the Tenth Amendment nor the principle of federalism prevents the application of the federal standards to the state workers. Answer choice C is incorrect because Congress has plenary Commerce Clause power to regulate employment conditions of all state employees.