Constitution

Question 1

1A

Answer 1

Freedom of speech

Question 2

2A

Answer 2

Right to bear arms

Question 3

8A

Answer 3

Prevent cruel and unusual punishment on criminals

Question 4

10A

Answer 4

Keeps the federal government limited

Question 5

12A

Answer 5

Changed presidential election process

Question 6

13A

Answer 6

Freed all slaves

Question 7

14A Section I

Answer 7

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens.

Defines citizenship, contains the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause, and deals with post–Civil War issues

Question 8

15A

Answer 8

Voting rights; meaningful vote; improper prohibitions

Question 9

decision to marry

Answer 9

Fundamental right = strict scrutiny

Question 10

Comity Clause only applies to

Answer 10

“citizens,” not corporations

Question 11

Dormant Commerce Clause

Answer 11

state may not discriminate against out-of-state commerce

Question 12

time, place, and manner restrictions on speech

Answer 12

test: must be content-neutral, narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information.

Question 13

market participant example

Answer 13

selling the rights to exploit a natural gas field that the state owns

Question 14

Supreme Court original jurisdiction

Answer 14

jurisdiction over all cases in which a state is a party

Question 15

choice of schools

Answer 15

a state law requiring children to attend public schools infringes on the right of parents to control the upbringing of their children. Supreme Court precedent also establishes that this right is a fundamental aspect of privacy protected by the due process clause of the Fourteenth Amendment. A state law that infringes on that right must therefore undergo strict judicial scrutiny, which requires the state to prove that the law is necessary to further a compelling state interest.

Question 16

state voting and national voting …

Answer 16

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.

Question 17

can press public stolen reports about toxic air pollution?

Answer 17

The press has the right to publish information about matters of public concern, and the viewers have a right to receive it. 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 DID NOT obtain it unlawfully.

Question 18

Comity Clause protects chq or persons?

Answer 18

PERSONS. While the Comity Clause of Article IV, Section 2 of the United States Constitution limits its protection to individuals, the Dormant Commerce Clause is not so limited. State or local action that discriminates against a corporation can violate the Dormant Commerce Clause.

Question 19

Dormant Commerce Clause protects chq or persons?

Answer 19

BOTH. While the Comity Clause of Article IV, Section 2 of the United States Constitution limits its protection to individuals, the Dormant Commerce Clause is not so limited. State or local action that discriminates against a corporation can violate the Dormant Commerce Clause.

Question 20

A privately owned architectural firm incorporated in State A contracted with the federal government to design and construct a federal research facility on federal land in State B. Because the firm wanted to source its construction materials close to the construction site, it purchased most of the needed supplies in State B from State B manufacturers. During the lengthy project, State B passed a law imposing a higher sales tax on industrial construction materials sold in State B. The architectural firm has challenged the constitutionality of the tax as applied to the supplies purchased for construction of the federal facility.

Is the tax constitutional as applied to the supplies purchased by the firm for construction of the federal facility?

Answer 20

Yes, because the private firm is not immune from nondiscriminatory state taxation.

The federal government and its instrumentalities are immune from taxation by the states. However, states may impose generally applicable indirect taxes so long as they do not unreasonably burden the federal government (e.g., state income taxes on federal employees). Here, this generally applicable sales tax on industrial construction materials that applies to a private architecture firm building a federal building is not so unreasonably burdensome as to be an impermissible taxation of the federal government.

Question 21

During wartime, a number of military aircraft factories expanded their operations and hired many additional employees. As a result of this increased employment, these communities experienced a sudden and unprecedented need for affordable rental housing. In response to this need, Congress passed a law establishing the maximum rent that may be imposed for a two-bedroom apartment within a ten-mile radius of a military aircraft factory.

Is this statute likely to be constitutional?

Answer 21

The authority granted to Congress under the war power of Article I, Section 8, is very broad. Congress may take whatever action it deems necessary to provide for the national defense in both wartime and peacetime, including rent control of the civilian economy during wartime, and even during the post-war period. Therefore, this statute is constitutional pursuant to the congressional war and defense powers.

Question 22

Is it constitutionally proper for the prosecutor to impeach testimony with a statement made before the grand jury?

Answer 22

No, because the mayor’s grand jury testimony was coerced by the grant of immunity.

Testimony given under a grant of immunity is considered coerced and involuntary. A defendant’s involuntary statement, such as a confession produced by coercion, cannot be used either substantively or for impeachment purposes. Consequently, the mayor’s statement made under the compulsion of the grant of immunity may not be used to impeach the mayor’s testimony at his trial for an offense that was the subject of the mayor’s grand jury testimony.

Question 23

bill of attainder

Answer 23

A bill of attainder is a legislative act that declares a person or group of persons guilty of some crime and punishes them without a trial.

bill of attainder is a legislative act that inflicts punishment on NAMED individuals or on EASILY identifiable members of groups and punishes them without a trial.

Question 24

ex post facto

Answer 24

The constitutional prohibition on an “ex post facto” law is confined to a RETROACTIVE change to a criminal or penal law. A law that is civil in purpose is treated as a criminal law only if its punitive effect clearly overrides its civil purpose.

Question 25

takings clause against builders

Answer 25

Takings Clause if there is an essential NEXUS between legitimate state interests and the conditions imposed on the property owner, and a rough PROPORTIONALITY between the burden imposed by the conditions on property owner and the impact of the proposed development.

Question 26

quasi-suspect classification

Answer 26

gender;
“legitimate” and “illegitimate” children;

unconstitutional unless they can withstand INTERMEDIATE scrutiny.

Question 27

Nonsuspect Classifications

Answer 27

age;
poverty;
(sexual orientation);

RATIONAL basis

Question 28

Fundamental Rights Unique to Equal Protection

Answer 28

One Person, One Vote;

Gerrymandering;

Question 29

Strict scrutiny

Answer 29

1) Test: LEAST RESTRICTIVE means to achieve a compelling governmental interest.
2) Burden of proof: burden is on the government to prove that the law is necessary.

3) Applicability:
– fundamental right
travel
voting
privacy (marriage)
2A (possess firearm)

-- suspect classification is involved. 
     race, 
     ethnicity, 
     national origin, 
     state law --> alienage.

Question 30

Intermediate scrutiny

Answer 30

1) Test: SUBSTANTIALLY RELATED to an important governmental interest.
2) Burden of proof: generally on the government

3) Applicability:
- - gender or
- - nonmarital child (legitimacy).

Note that in gender cases there must be an “exceedingly persuasive justification” for the classification, which may bring the standard in such cases closer to strict scrutiny.

Question 31

rational basis

Answer 31

1) Test: rationally related to a legitimate governmental interest.
2) Burden of proof: Laws are presumed valid; burden is on the challenger to establishing that the law is arbitrary or irrational.

3) Applicability
- - age, wealth, weight, or most other classifications, as well as to any distinctions drawn for business or economic reasons.

Question 32

General Welfare Clause

Answer 32

While the General Welfare Clause gives Congress broad power in exercising its spending and taxing powers, it does not give Congress the specific power to legislate for the public welfare in general. Such “police power” is reserved for the states.

Question 33

11A

Answer 33

Makes states immune from suits from out-of-state citizens and foreigners not living within the state borders; lays the foundation for state sovereign immunity.

e.g. Congress cannot take this right away (abrogate)

Question 34

interstate commerce tax (and test)

Answer 34

States may tax interstate commerce if Congress has not already acted in the particular area and if the tax does not discriminate against or unduly burden interstate commerce.

The Supreme Court applies a four-part test to determine whether a state tax comports with the Commerce Clause: (1) there must be a substantial nexus between the activity taxed and the taxing state (here, that requirement is satisfied as the taxing state is both supplying the electricity and paying for clean-up), (2) the tax must be fairly apportioned according to a rational formula (here, tax is calculated by usage), (3) the tax may not provide a direct commercial advantage to local businesses over interstate competitors (nothing in the fact pattern indicates that this factor is present), and (4) there must be a fair relationship between the tax and the service provided (here, the tax is calculated in direct proportion to usage and is used for clean-up efforts related to production of electricity).

Question 35

Comity Clause

Answer 35

The Privileges and Immunities Clause (U.S. Constitution, Article IV, Section 2, Clause 1, also known as the Comity Clause) prevents a state from treating citizens of other states in a discriminatory manner. Additionally, a right of interstate travel may be plausibly inferred from the clause.

e.g. persons only, N/A to entities such as companies.

Question 36

tax payer standing

Answer 36

A taxpayer generally does not have standing to file a federal lawsuit simply because the taxpayer believes the government has allocated funds in an improper way.

LIMITED exception for a taxpayer suit challenging a specific LEGISLATIVE appropriation made under the taxing and spending powers for violation of the Establishment Clause.

Question 37

state regulation that is not discriminatory

Answer 37

state regulation that is not discriminatory may still be struck down as unconstitutional if it imposes an undue burden on interstate commerce

Question 38

city is classifying persons as either state citizens or out-of-state citizens, and providing the latter group with a benefit by relieving them from paying the city’s sales tax. Remedy?

Answer 38

The Equal Protection Clause of the Fourteenth Amendment provides that “no state shall…deny to any person within its jurisdiction the equal protection of the laws.” The Equal Protection Clause is generally the constitutional safeguard that a citizen or group of citizens will use to challenge a law that is based on some kind of classification. Here, the city is classifying persons as either state citizens or out-of-state citizens, and providing the latter group with a benefit by relieving them from paying the city’s sales tax.

Question 39

discrimination on basis of status as a nonmarital child.

Answer 39

Classifications on the basis of status as a nonmarital child are subject to INTERMEDIATE scrutiny—they must be SUBSTANTIALLY RELATED to an important governmental interest.

Question 40

raising fees on out-of-staters violates what to rights?

Answer 40

Nonresident citizens are protected against discrimination with respect to fundamental rights or essential activities, including the pursuit of employment, transfer of property, access to state courts, and engaging in the political process. Discrimination against out-of-state residents in setting the fee for a commercial activity, such as the oyster-fishing license here, violates the PRIVILEGES and IMMUNITIES Clause of Article IV, but similar discrimination for a recreational activity, such as a recreational hunting license, does not, if there is a rational basis for the fee differential. Here, the state is discriminating against the out-of-state oyster fisherman by setting a much higher fee for a commercial activity. Note that this would also likely violate the DORMANT COMMERCE Clause

Question 41

law against graphic video on billboard

Answer 41

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 42

The Eleventh Amendment prohibits

Answer 42

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..

11A restricts the ability of individuals to bring suit against states in federal court.

Question 43

Export Taxation Clause

Answer 43

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.

Congress has the power to regulate international commerce. A tariff (import) is a valid exercise of this power

Question 44

Who controls national guard

Answer 44

National Guard units are under the DUAL control of the federal and state governments. Under the Militia Clauses (Art. I, Sec. 8, Cl. 15, 16), Congress has the power to authorize the President to call National Guard units to execute federal laws, suppress insurrections, and repel invasions. This constitutional authority extends to use of National Guard units in domestic situations and non-emergency circumstances, and is NOT subject the approval or veto of the governor of a state.

Question 45

Enclave Clause

Answer 45

Congress has the general police and regulatory powers over the District of Columbia that a state enjoys over persons and things within its boundaries. Among those powers is the power to tax or not to tax income earned within its boundaries.

Question 46

judge immunity

Answer 46

A judge is absolutely immune from civil liability for judicial acts, including grave procedural errors.

The judge is not immune, however, to lawsuits regarding non-judicial activities

Question 47

public employee for termination

Answer 47

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 hearing is not required, as long as there is pre-termination notice, an opportunity to respond to the decision maker, and a post-termination evidentiary hearing.

Question 48

may a state prohibit felons from voting

Answer 48

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 49

family living together

Answer 49

Related persons, including extended family members, have a fundamental right to live together in a single household. Therefore, the strict scrutiny test applies to the statute. Under this test, the law must be the least restrictive means to achieve a compelling governmental interest.

Question 50

indigent unable to pay appeals fee

Answer 50

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 51

pubic records of convicts

Answer 51

it is non punitive, usually okay

Question 52

secrecy in trial by closed AND gag order

Answer 52

not valid. there are less restrictive means to secure identity of witnesses.

Note that gag orders are almost always struck down because they are rarely the least restrictive means of protecting the defendant’s right to a fair trial.

Question 53

can gov’t hiring penalize for association with bad groups?

Answer 53

not unless student lacked the specific intent to further the organization’s illegal objectives; this intent is necessary in order to punish her based upon her association with the group.

The First Amendment’s freedom of association protects the right to form or participate in any group, club, or other organization virtually without restriction, but the right is not absolute.

Question 54

unambiguous legislation

Answer 54

Congress has the power under the spending power to spend for the general welfare and may impose conditions on the receipt of an appropriation by a state, such conditions must be set out UNambiguously to be enforceable.

Question 55

Property Clause

Answer 55

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.

Here, Congress has the power to protect federal land FROM A NUISANCE erected on adjoining property, and this power likely extends to property that is owned by the state.

Question 56

Congress taking away citizenship

Answer 56

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.

e.g. passport not renewed because of voting in another country.

Question 57

Elections Clause (Congress’s powers)

Answer 57

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

Question 58

State taxing federal gov’t

Answer 58

The federal government and its instrumentalities (such as a national bank chartered by the federal government) are immune from taxation by the states. McCulloch v. Maryland, 17 U.S. 316 (1819). States may, however, impose generally applicable indirect taxes so long as they do not unreasonably burden the federal government (e.g., state income taxes on federal employees). Note that imposing state sales tax on purchases made by the federal government is often unreasonably burdensome and, therefore, unconstitutional.

Question 59

Congress enacted a statute permitting states to enact any law regarding the regulation and taxation of persons in the financial services industry, provided that any such law is consistent with federal statutes regulating the industry. A state enacted a statute that taxed all out-of-state financial services corporations doing business in the state. However, the statute did not tax local financial services corporations. A group of out-of-state financial service corporations joined in a court action challenging the constitutionality of the state statute. Assuming the state statute is not inconsistent with any federal statute, is it constitutional?

Answer 59

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. In this case, Congress, by statute, permitted states to enact any law, including a tax law, regarding the financial services industry that is consistent with applicable federal statutes.

Question 60

21A

Answer 60

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 61

Supremacy Clause

Answer 61

The Supremacy Clause of Article VI provides that the “Constitution, and the laws of the United States” are the “supreme law of the land.” Any state constitutional provision or law that directly or indirectly conflicts with a federal law, including federal regulations, is void under this clause

e.g. coinage

Question 62

seizure

Answer 62

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. Here, the city provided no notice or hearing for either the home or the vehicle. The city was required only to provide notice and a hearing for the seizure of the home

Question 63

ballot requirements

Answer 63

There is no fundamental right to have one’s name on an election ballot or to hold office through election or appointment. A state may ban all write-in candidates in both primary and general elections, as long as the state provides other reasonable means by which a candidate can get on the ballot.

Question 64

home schooling regulation

Answer 64

While parents do enjoy a fundamental right to make decisions regarding the care, custody, and control of one’s children, including the right to privately educate one’s child outside the public school system, that right is subject to reasonable educational standards imposed by the state. Consequently, the court must strike down any requirements that the court finds impose unreasonable educational requirements on the homeschooling of children.

Question 65

standard for poor school neighborhoods

Answer 65

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 66

takings

Answer 66

One way in which a taking may occur is through the destruction of property or the elimination of a property right. Here, while the supplier continued to possess a valid lien on the plane, the lien was worthless because the supplier could not enforce it against the U.S. Forest Service due to sovereign immunity. Because this action effectively destroyed the value of the supplier’s property lien, it constitutes a taking.

e.g.
A manufacturer entered into a contract with the United States Forest Service, an agency of the federal government, to construct a special plane to be used by the Forest Service in fighting forest fires. During the construction of the plane, as the Forest Service made progress payments to the manufacturer, the supplier of materials obtained, under state law, a valid lien upon the plane for the cost of these materials. Shortly before construction was completed, the manufacturer ceased operation and the Forest Service, as permitted by the terms of the contract, took title to the plane. The supplier’s otherwise valid lien is now unenforceable against the Forest Service because of the doctrine of sovereign immunity. Has there been an unconstitutional taking of the supplier’s property?

-Yes, because the Forest Service’s action effectively eliminated the supplier’s lien on the plane.

Question 67

D forgoes appeal and wants Supreme Court to hear case

Answer 67

Congress has restricted the U.S. Supreme Court’s appellate review to a final judgment rendered by the highest court of a state in which a decision could be had. Since the defendant elected to forego an appeal of his conviction to a state appellate court, the U.S. Supreme Court cannot hear this appeal.

Question 68

standing elements

Answer 68

To have standing, a plaintiff bears the burden of establishing three elements—(i) injury in fact, (ii) causation, and (iii) redressability.

Question 69

standing of an assignee of a claim

Answer 69

An assignee of a claim has standing to enforce the rights of an assignor, even when the assignee is contractually obligated to return any litigation proceeds to the assignor (e.g., an assignee for collection), provided the assignment was made for ordinary business purposes and in good faith.

Question 70

Congress taxing grass for cows

Answer 70

Article I, Section 8 of the Constitution GIVES Congress the power to levy and collect taxes. A tax by Congress will generally be UPHELD if it has a REASONABLE relationship to revenue production, or if Congress has the power to regulate the activity being taxed.

Question 71

Congress buys land for historical preservation

Answer 71

Congress has the power to spend for the “general welfare”—i.e., ANY public purpose—not just to pursue its other enumerated powers. The public purpose need not be a national purpose, but may instead concern only a particular LOCALE.

Question 72

Direct tax—apportionment (Congress)

Answer 72

Article I, Section 2 provides that “[r]epresentatives and direct taxes shall be apportioned among the several states,” and Article I, Section 9 provides that “no…direct tax shall be laid, unless in proportion to the Census….” A direct tax (one imposed directly on property or persons, such as an ad valorem property tax) would therefore have to be apportioned evenly among the states. The difficulty of ensuring this outcome explains Congress’s reluctance to enact such taxes—or perhaps the Supreme Court’s reluctance to find that federal taxes are “direct.” The Sixteenth Amendment gave Congress the power to lay and collect income tax without apportionment among the states.

Question 73

detainee files habeas corpus

Answer 73

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 74

does contractor working for federal gov’t pay state taxes?

Answer 74

No, because the state sales taxes were imposed on the private contractor’s purchase of the materials, and not directly on the federal government.

Although a state may not tax the federal government or its instrumentalities, there is no similar restriction on the taxation of property owned by a private individual. In this case, the sales taxes have only an indirect economic effect on the federal government.

Question 75

federal marshal kills bystander when prisoner escaped

Answer 75

The federal marshal can argue that, since the killing occurred when he was acting as a federal law enforcement officer, he enjoys immunity under the Supremacy Clause from state prosecution for his actions.

Question 76

It has been proposed that the federal statutory exemption for interest earned by the holders of bonds issued by states to finance public works projects, such as highways and educational facilities, be repealed. These bonds are the primary method by which many states finance such projects. Since imposing an income tax on the bond interest would have the effect of increasing the interest that the state must pay on these bonds, this change would have a substantial adverse economic impact on the cost of these projects to the state. Would the repeal of this federal statutory exemption be constitutional?

Answer 76

Yes, because the tax would not be imposed directly on the states.

Question 77

school board candidates have to own property within distrinct

Answer 77

likely unconstitutional under the Equal Protection Clause, the principle of “one person, one vote” requires that one person’s vote must be essentially equal to any other person’s vote. The “one person, one vote” principle applies to local elections of entities that perform governmental functions, even when the functions are specialized rather than general in nature, such as a local school board. The restriction of voting to a class of persons (e.g., landowners) has generally been found to violate the “one person, one vote” principle, except in the case of water-district elections.

Question 78

establishment clause

Answer 78

When a governmental program shows preference to one religion over another,

OR to RELIGION OVER NONRELIGION, strict scrutiny applies!

Question 79

jurisdiction when state is a party

Answer 79

Supreme Court has original jurisdiction over all cases in which a state is a party

Question 80

A state law that restricted abortion was challenged in state court as a violation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and as a violation of a similar due process provision of the state constitution. The case made its way to the state’s highest court, which ruled that the law violated the due process provisions of both the U.S. and the state constitutions. If petitioned to do so, may the U.S. Supreme Court exercise jurisdiction to review the state court decision?

Answer 80

No.

U.S. Supreme Court does not have appellate jurisdiction over a decision by the highest court of a state when that decision is supported by state law grounds that are (1) independent of federal law and (2) adequate to sustain the result in the case.

Question 81

After a prominent senator is accused of accepting bribes from commercial gaming lobbyists in exchange for a promise to vote in favor of land-based casinos in a state, a Congressional committee is assigned to investigate the alleged misconduct. Within the course of the investigation, the committee seeks to question Senator X, a fellow senator from the same state as the accused senator. Senator X is subpoenaed to appear before the Congressional committee without the presence of counsel to testify on whether he ever saw the accused senator accept money from a gaming lobbyist. Senator X fails to appear before the Congressional committee and is immediately cited for contempt. Is the citation of Senator X for contempt valid?

Answer 81

No, because Senator X did not receive procedural due process.

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 82

Investors brought an action under federal law for fraud in the sale of securities against an investment company. The action was dismissed with prejudice by the federal district court because it was not timely filed. The investors did not appeal this dismissal. Congress then passed legislation permitting the investors to reinstate this action. The investors petitioned the district court for reinstatement of their action. Of the following, which would serve as the best ground for the investment company to challenge the constitutionality of this law?

Answer 82

Correct Answer: Separation of powers doctrine
NOT EX POST FACTO

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 83

Speech and Debate Clause

Answer 83

protects members of Congress from civil and criminal liability for statements and conduct made in the REGULAR COURSE of the legislative process, including a speech given on the floor of Congress, committee hearings, and reports.

Question 84

A state owned a large natural gas field and took bids for its exploitation. The highest bid came from an interstate pipeline company that distributed natural gas to providers throughout the country. A local gas company submitted the next highest bid, which included the commitment that it would pass along to local customers any savings if it was awarded the contract. The state awarded the contract to the local company. The interstate company sued to overturn this decision. Should the interstate company prevail?

Answer 84

Correct Answer: No, because the state acted as a market participant.

A state may behave in a discriminatory fashion if it is acting as a market participant (buyer or seller), as opposed to a market regulator. If the state is a market participant, it may favor local commerce or discriminate against non-resident commerce as could any private business. Here the state is a market participant because it is selling the rights to exploit a natural gas field that it owns. The usual rules of the dormant commerce clause restricting the power of the state to prefer local economic actors over interstate companies therefore do not apply.

Question 85

property interest in restraining order

Answer 85

A cognizable property interest involves more than an abstract need or desire; there must be a “legitimate claim of entitlement” by virtue of statute, employment contract, or custom. If enforcement of the restraining order is subject to the discretion of the police officers, then the woman cannot assert an absolute entitlement to having the order enforced.

Question 86

abrogate rights

Answer 86

repeal or do away with

Question 87

bankruptcy

Answer 87

11A normally allows state immunity, but state not immune from federal bankruptcy.

The Eleventh Amendment does not bar the actions of a Bankruptcy Court that impacts state finances.

Question 88

out of state discrimination

Answer 88

Privileges and Immunities Clause protects citizens of one state from discrimination by another state in their exercise of FUNDAMENTAL rights.

HOWEVER, for a tour guide license, that violates fundamental right to earn a living.
————————————————
another alternative is dormant commerce clause does not permit state discrimination, unless rational basis.

Question 89

Equal Protection Clause and discrimination

Answer 89

not enough of disparate impact, must show intentional discrimination.

e.g.
The test was designed to ensure that firefighters could handle the physical rigors of the job, such as lifting heavy equipment, carrying injured people, and withstanding intense heat. Applicants of a specific ethnic background failed this physical fitness test at twice the rate of applicants at large.

Question 90

Preemption

Answer 90

1. Express Preemption

Federal law expressly preempts state law in cases in which the Constitution makes the federal power exclusive (such as the powers to coin money or declare war) or when Congress has enacted legislation that explicitly prohibits state regulation in the same area (e.g., the Federal Cigarette Labeling and Advertising Act forbids state laws that regulate either cigarette labels or the “advertising or promotion” of labeled cigarettes “based on smoking and health,” 15 U.S.C. § 1334).

2. Implied Preemption
   a. Intent to occupy a field can be inferred from a framework of regulation so pervasive that Congress left no room for states to supplement; or
   b. The state law directly conflicts with the federal law

Question 91

religion wants to handle venomous snakes which are outlawed.

Answer 91

Under the Free Exercise Clause of the First Amendment, a state may enact a neutral law of GENERAL APPLICABILITY. Here, the state enacted its law for the neutral purpose of protecting public health and safety, and the law applies generally to everyone in the state; the effect on the religious entity is only incidental to the law’s intended purposes.

HAD it been targeted toward religion, then it would face strict scrutiny.

Question 92

regulating adult entertainment

Answer 92

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.