Constitution law

Question 1

Commerce Clause

Answer 1

The Commerce Clause power is exceptionally broad. Congress can regulate four categories of activities involving interstate commerce:
(1) channels of interstate commerce, (2) instrumentalities of
interstate commerce, (3) articles moving in interstate commerce, and
(4) activities “substantially affecting” commerce.

Congress can
regulate an activity, you need only determine that (1) the activity is commercial, and (2) the activity “substantially affects” interstate commerce or the activity is part of a general class of activities that, collectively, substantially affect interstate commerce.
sale and distribution of items, if activity is non commercial find the obvious connection with interstate commerce so applicability of this clause is valid

You shouldn’t be surprised to see an MBE question in which Congress tries to make someone who is not presently in the market for a good (e.g., broccoli) buy the good or pay a penalty; you should answer that this isn’t
authorized by the Commerce Clause (but might be authorized by Congress’s power to tax and spend, if the money is collected by the IRS, as in the Affordable Care Act situation).

The commerce power would allow Congress to regulate Old Mac’s production: Old Mac is already engaged in an activity (farming), the activity is commercial, and the cumulative (or aggregate) effect of many farmers’ production could
substantially affect the supply and demand of commodities interstate

Question 2

State law and federal law conflict

Answer 2

the only time you analyze state statutes’ impact on
interstate commerce under the Commerce Clause is when there’s no relevant federal legislation. Then you have to determine if a state
regulation unduly burdens interstate commerce (see the discussion on validity of state statutes under item 3 below). If relevant federal legislation exists, then your analysis falls under the Supremacy
Clause. There are two questions you have to ask:
1. Did Congress expressly authorize or prohibit state regulation? If so, that controls. If not —
2. With no express authorization or prohibition by Congress, you have to determine if the federal law preempts the state law. If the state law directly contradicts the federal law, it will be preempted. If there’s no direct conflict, you have to determine if Congress intended the federal
law to occupy the entire field. Look at four factors to determine if
that is the case: (1) whether the subject matter is traditionally
classified as local or federal; (2) how pervasive the federal regulation is; (3) how similar the state and federal laws are (the more they coincide, the more likely it is that federal law was intended to supersede state law); and (4) whether there’s a need for uniform federal regulation. You can remember this with a mnemonic —
PUSH (Pervasiveness, Uniformity, Similarity, History).
Note that preemption is an issue any time a state law conflicts with a federal law (or is in the same field). However, it’s most likely to be applied in the area of interstate commerce

Question 3

Welfare clause

Answer 3

— applies only to fed government— unlike the name, fed can’t pass welfare laws
—tax and spend is the scope of the power.
Incidentally, keep in mind that states do have the power to legislate for the general welfare, but only under their police power, not under the Welfare Clause

Question 4

contracts clause

Answer 4

Applies to: States only.
Source or prohibition: Prohibition.
The Contracts Clause, or “Obligations of Contracts” Clause, prohibits states from passing any law that impairs the obligations of contracts.
It’s usually correctly applied when the state seems to be trying to escape its own obligations.
States can regulate contract formation prospectively. Thus, when the “Contracts Clause” is an answer choice, the first thing you should do is check to see if the contract in question predates the offending statute. If not, then the Contracts
Clause is irrelevant.

state modifications of contracts will be permissible
if the modifications (1) serve an important and legitimate public interest and (2) are necessary to achieve that public interest; and if (3) the contract impairment is reasonable under the circumstances.
Also, keep in mind that the state has more leeway when the state itself was a party to the contract

Question 5

Privileges & Immunities of the Fourteenth Amendment.

Answer 5

Privileges & Immunities of the Fourteenth Amendment.
Applies to: States.
Source or Limitation: Limitation.
This voids state enactments which clearly infringe on the privileges of national citizenship. The protection is limited to the fundamental rights shared by all citizens, namely the right to travel freely from state to state, to petition Congress for redress of grievances, to vote for national officers, to assemble peaceably, and to discuss matters of national legislation.

These same rights are protected against state
encroachment by the Due Process and Equal Protection Clauses of the Fourteenth Amendment, so, wherever Privileges and Immunities seems to apply, Due Process or Equal Protection would be a stronger argument against the constitutionality of the state action in question

“Interstate” Privileges & Immunities Clause, Article IV, § 2.
Applies to: States.
Source or Limitation: Limitation.
It prevents states from
discriminating against out-of-state citizens and residents in matters concerning “essential activities” (e.g., pursuing one’s livelihood, owning property) and “basic rights” (e.g., medical care, court access), unless the discrimination is closely related to a substantial state purpose (e.g., protecting natural resources by the state) and there are no less restrictive means available to achieve the purpose.
It’s important to remember that this provision doesn’t protect
corporations or aliens — just out-of-state, human, U.S. citizens

Question 6

Test for strict scrutiny where statute is valid

Answer 6

The woman’s suit would be brought on a substantive due process theory. The Supreme Court held in Zablocki v. Redhail, 434 U.S. 374
(1978), that marriage is a “fundamental right” for substantive due process purposes. That case, like the fact pattern here, involved a state statute making a marriage license conditional upon the payment of all court-ordered child support. The Court concluded that the statute “substantially” interfered with this fundamental right of marriage, triggering strict scrutiny of the statute. When a statute is strictly scrutinized, the defender of the statute (here, the state) bears the
burden of proving that the law is necessary to serve a compelling governmental interest.

Question 7

Enforcement Clause of the Fourteenth Amendment

Answer 7

The Enforcement Clause of the Fourteenth Amendment is § 5,
which gives Congress “power to enforce [this Amendment] by
appropriate legislation.” But the entire Fourteenth Amendment limits only “state action,” that is, conduct by state and local governments rather than by private individuals. Consequently, the Supreme Court
has held that Congress’s § 5 enforcement power, too, applies only where Congress is regulating state action rather than purely private
conduct. S

Question 8

Privileges and Immunities Clause of Article IV

Answer 8

he Privileges and Immunities Clause of Article IV prohibits any
state from engaging in certain types of discrimination against citizens of other states. It is not a source of congressional power

Question 9

Expost facto law

Answer 9

An ex post facto law is a law that imposes a
punishment for an act that, at the time it occurred, was not punishable.
That’s what the state is doing here, by prosecuting the principal for actions he took before the new statute was enacted. (The statute would not pose an ex post facto problem if it were applied to actions taken by
a state employee after the date of the statute’s enactment.

Question 10

Due Process

Answer 10

The principal would indeed have a plausible due process claim,
since he has been deprived of a liberty interest, namely, his freedom to give schooling to certain people. But not all governmentally imposed restrictions on liberty violate the Due Process Clause. Where the liberty interest being restricted is not a “fundamental” one, the government may infringe on it without violating the Due Process Clause, as long as the means chosen is rationally related to the fulfillment of a legitimate state objective, an easy-to-satisfy test.
There is no reason to believe that a person’s right to help others get schooling is a “fundamental” interest for due process purposes.
The state has a very plausible argument that it is pursuing a “legitimate” interest (keeping its employees from aiding and abetting violations of U.S. immigration law), and that the means it has chosen are at least
rationally related to the achievement of this objective

Question 11

The Fourteenth
Amendment’s Privileges or Immunities Clause

Answer 11

The Fourteenth Amendment’s Privileges or Immunities Clause prevents a state from impairing certain rights held by U.S. citizens. But the clause has always been interpreted to protect only certain rights of “national,” as opposed to state, citizenship.
The list of rights protected by the clause
is a very short one, essentially limited to the right to travel from state to state and to relocate to a new state without penalty, the right to vote in national elections, and a few other narrowly-defined rights. The principal would have to show that his “right” to help others gain an education was covered by the clause. But the right to help others obtain an education is certainly not a right of “national” citizenship of
the sort

Question 12

Bill of attainder

Answer 12

A bill of attainder is a legislative act that applies either to named individuals or to easily-ascertainable members of a group, in such a way as to inflict punishment on them without a judicial trial. U.S. v.
Lovett, 328 U.S. 303 (1946).

Question 13

When is a statute held void for vagueness

Answer 13

A statute will be held void for vagueness if the conduct that it
forbids is so unclearly defined that persons of reasonable intelligence must necessarily guess at its meaning. The idea is that a statute is unconstitutionally vague if it does not give fair notice of the dividing line between forbidden and non-forbidden behavior

Question 14

Core political speech by FA

Answer 14

d the letter carriers.
Core political speech is especially rigorously protected under the
First Amendment (as made applicable to the states by the Fourteenth
Amendment). Even speech advocating force or crime may not be forbidden on the grounds that it is subversive, unless the government proves that (1) the speech is intended to incite or produce imminent lawless action; and (2) such imminent lawless action is in fact likely
to occur. Brandenburg v. Ohio, 395 U.S. 444 (1969).

Question 15

if a govt employee burned his IRs Regs books on fire while state law opposed starting a fire in govt building

Answer 15

Where a regulation has a significant impact on protected
expression, but is “content neutral” (i.e., not related to the message being communicated), the regulation is subject to mid-level review:
It must be “narrowly tailored” to further a “significant governmental interest.” Clark v. Community For Creative Non-Violence, 468 U.S. 288 (1984).
The protester’s conduct in setting the fire receives First
Amendment protection, because he was intending to deliver a
message (a protest), and the audience was likely to understand that message. But the statute here is content-neutral: All setting of fires in public buildings is prohibited, regardless of the content of any message being delivered by the fire-setter. So the “narrowly tailored to further a significant governmental interest” standard is the applicable standard. (It is highly likely that the ban here satisfies this mid-level standard, since there is obviously a significant governmental interest in avoiding the danger posed by fires in public buildings, and a ban on intentionally setting such fires is a narrowly tailored means
of avoiding this danger.

Question 16

First amendment speech

Answer 16

But the conduct/speech distinction is essentially irrelevant in First Amendment law: If conduct is motivated
by an intent to communicate a message (and the audience is likely to understand the message), the conduct receives First Amendment protection. However, even conduct that receives First Amendment protection because it is communicative may nonetheless be subjected to significant governmental restriction; where the restriction is content
neutral, the restriction will be upheld if it is narrowly tailored to achieve a significant governmental interest.

Question 17

if a substantial part of funding comes from university, can it be deemed state university and can the professor removed from this university challenge removal on freedom of speech violation

Answer 17

The professor’s suit would have to have been based on the First
Amendment, as made applicable to the states by means of the
Fourteenth Amendment’s Due Process Clause. The Fourteenth
Amendment applies only where there is “state action,” that is, some
sort of participation in the challenged action by a state or local
government entity. So purely private action cannot be the basis for a First Amendment or Fourteenth Amendment claim. Here, the university whose conduct is alleged to have violated the professor’s free-speech rights is a private university. Unless the state has somehow participated in that conduct, the absence of state action will automatically defeat the professor’s claim. The mere fact that a
substantial portion of the university’s operating budget comes from state funds is not sufficient to cause the university’s conduct to be deemed state action. See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830
(1982) (even though a private high school received public funds amounting to 90% of the school’s budget, this was not enough to transform the school’s employment decisions into state action).

Question 18

Appellate Jurisdiction of SC

Answer 18

The U.S. Supreme Court has appellate jurisdiction not only over state court decisions that determine the constitutionality of federal laws, but also over state court decisions that construe the meaning of federal statutes.

here a state court opinion rests on two
independent grounds, one of which is based on federal law and the other on state law, the Supreme Court does not have jurisdiction to hear the appeal if the state-law portion of the opinion is by itself sufficient to sustain the judgment. (If the Court were to hear the appeal, it would in effect be rendering an advisory opinion, since its opinion on the federal law issue would not make a difference to the outcome.) In this situation, there is said to be an “independent and
adequate state ground.”

Article III, § 2, of the Constitution says that in all cases falling
within the federal judicial power, and not falling within the Supreme Court’s original jurisdiction, the Supreme Court “shall have appellate jurisdiction . . . with such exceptions, and under such regulations as the Congress shall make.”
Supreme Court cases have interpreted this
language as meaning that Congress may remove an entire subject area from the Supreme Court’s appellate jurisdiction, as long as Congress is acting in a substantively neutral way (rather than, say, trying to dictate the outcome in a particular type of case). See, e.g., Ex parte
McCardle, 74 U.S. 506 (1869) (Congress may constitutionally prevent the Court from hearing all habeas corpus appeals from the federal circuit courts). Since the statute here prevents either side from appealing criminal decisions made by a state’s highest court, the statute is probably sufficiently neutral. It’s possible that the Supreme Court might conclude that the statute here is so broad that it went beyond Congress’s power to modify the Court’s appellate jurisdiction

Under
Article III, § 2, the Supreme Court has original jurisdiction in (and only in) all cases affecting ambassadors, other public ministers and counsels, and those in which a state shall be a party. The case here does not involve any of those categories, so originaljurisdiction does not exist.
Appellate jurisdiction: Article III, § 2, also provides that in those
cases arising under the Constitution, by an Act of Congress, or by treaty, the Supreme Court shall have appellate jurisdiction. It’s true that, as the facts tell us, a federal statute gives the Supreme Court the authority to review any case filed in a U.S. court of appeals,
even though that case has not yet been decided by the court of appeals. But that statute presumes a decision by a lower court, which hasn’t yet happened in this case. Indeed, for the Supreme Court to hear this case, in the absence of any lower-court decision, would not be an exercise of “appellate” jurisdiction at all
— there is no decision being appealed from

Question 19

Appointment clause

Answer 19

The Appointments Clause (Art. II, § 2, cl. 2) provides that the
President shall “nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors . . . Judges of the Supreme Court, and all other Officers of the United States[.]”
The statute here violates this Clause in two respects. First, by saying that the President may appoint an ambassador only from among the names appearing on a congressionally-generated list, the statute violates the principle,
expressed in the Appointments Clause, that the President may
nominate anyone he or she wishes as an ambassador or other principal federal officer (subject, of course, to Senate confirmation).
Second, the phrase “by and with the advice and consent of the Senate” means that a presidential appointment of an ambassador or other principal federal officer must be affirmatively approved by a vote of the Senate;
the Senate is not permitted to abdicate its duty to consent (or not consent) to such an appointment by means of a statute stating that lack
of disapproval within 30 days shall be the equivalent of approval.

Question 20

Commercial Speech First amendment

Answer 20

Commercial speech receives First Amendment protection, but to a somewhat lesser extent than,
say, core political speech. One of the limitations is that commercial speech that is misleading or deceptive is not entitled to any First Amendment protection at all. See, e.g., Central Hudson Gas v. Public
Service Comm., 447 U.S. 557 (1980): “[T]here can be no
constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive
the public than to inform it[.]”

Question 21

Tenth amendment

Answer 21

The Tenth Amendment has relatively little scope under modern law; virtually its only function is to prevent Congress from commanding the states to enact or enforce federal policies. The Tenth Amendment can never validate a state law that violates some other Federal constitutional provision. Therefore, the Tenth Amendment would not save the state statute here from attack on the grounds that
the statute intentionally discriminates against, and unduly burdens, inter-state commerce, and thereby violates the dormant Commerce Clause

Although the Tenth Amendment today doesn’t pose much of a
limit for Congress, it does prevent Congress (or any other part of the federal government) from compelling a state to enact or enforce a particular law. See N.Y. v. U.S. (1992): Under the Tenth Amendment, Congress may not “commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”

Question 22

Freedom of association, can bar reject person who is member of subversive group

Answer 22

First, the Supreme Court has repeatedly held that the First
Amendment freedom of association prevents the government from denying a privilege or benefit, such as bar membership, based solely on membership in an organization. See, e.g., Baird v. State Bar of
Arizona, 401 U.S. 1 (1971) (Stewart, J., concurring): “[M]ere
membership in an organization can never, by itself, be sufficient ground for a State’s imposition of civil penalties or criminal punishment.”
Second, the state cannot deny a privilege or benefit
based upon the applicant’s refusal to disclose her mere membership in an organization — if a membership could not by itself be the basis for
denying a privilege, the government cannot require disclosure of the membership as a condition of receiving the privilege, either

The government may withhold a benefit or privilege (such as bar membership) based on the applicant’s membership in an organization that the applicant knows advocates the overthrow of the government by force or violence, if the applicant shares the specific intent to further the organization’s illegal goals. And the government is
permitted to (1) ask questions sufficient to find out whether the applicant has such a specific intent; and (2) deny membership to an applicant who will not answer such questions about her intent.

Question 23

statute is overbroad and vague

Answer 23

A statute is overbroad if, in addition to proscribing activities that may be constitutionally forbidden, it also sweeps within its coverage asubstantial amount of speech or conduct that is protected by the guarantees of free speech.
The doctrine of vagueness is similar but not identical to that of overbreadth: A statute will be void for vagueness if
the conduct forbidden by it is so unclearly defined that persons of common intelligence would have to guess at its meaning and would differ as to its application.

Question 24

Legislative power to enact laws about marriage

Answer 24

The central obstacle under this problem is that the states have the general power to legislate regarding marriage and divorce, because family oriented legislation is not within Congress’s enumerated powers. Congress only has power to the extent of its enumerated powers under the Constitution. In order to be valid, a federal statute must be rationally related to an enumerated power, or be a necessary and proper means of effectuating such power. These are the major
powers of Congress: civil rights, elections (congressional), admiralty, taxation, eminent domain, spending for general welfare, defense, interstate commerce, citizenship, and external (foreign) affairs CREATE DICE

Under Article I, § 8, of the Constitution,
Congress is expressly given the power to govern the District of
Columbia. This, in effect, gives it ‘‘state-like’’ control over the District of Columbia, and this neatly avoids the obstacle in this problem —
namely, that marriage and divorce is neither one of Congress’s
enumerated powers, nor is its legislation necessary and proper to effectuating an enumerated power. Since legislation concerning marriage and divorce would clearly be part of ‘‘governing’’ the
District of Columbia, such congressional legislation would be valid.

Question 25

Fifth amendment

Answer 25

The Fifth Amendment to the Constitution prohibits the
government from taking private property ‘‘without just
compensation.’’ The Supreme Court has held that a land use regulation may constitute a regulatory taking when the regulation deprives the owner of all economically viable use of his land (Lucas v. South Carolina Coastal Council). The purchaser in this problem bought the
land with the expectation of developing it. However, the county’s regulation, enacted after the purchase, barred him from doing so. The blanket prohibition on any sort of development deprived the purchaser
of any means of recouping any part of his investment and was
therefore a regulatory taking of the purchaser’s land. As a result, the Taking Clause requires that the county pay just compensation to the purchaser.

The Taking Clause of the Fifth Amendment applies when a
governmental entity either interferes with an individual’s right to possess his land (either by physically occupying or taking possession of the land) or enacts a land use regulation that effectively removes any economically viable use of the land. The legislative purpose of the zoning may be relevant if the regulation’s constitutionality is challenged, but is irrelevant to the issue of whether compensation is
due to the landowner

Question 26

Standing

Answer 26

Standing is an interest in the outcome of a controversy. An
organization has standing to challenge government actions that cause an injury in fact to its members if the organization can demonstrate the following: (1) that there is an injury in fact to some members of the organization that would give these individual members a right to sue on their own behalf; (2) that the injury to the members is related to the organization’s purpose; and (3) that neither the nature of the claim
nor the relief requested requires participation of the individual
members in the lawsuit. Hunt v. Wash. Apple (1977).

In particular, to be heard the plaintiff must have standing and the case must (1) not call for an advisory opinion, (2) be ripe for adjudication, (3) not be moot, and (4) not call for the courts to decide a non-justiciable ‘‘political question.’’
The court in this problem should refuse to hear the case because the controversy is not yet ripe for decision. A case is considered not yet ripe when the controversy is not yet sufficiently concrete as to allow effective adjudication. In particular, when a plaintiff sues for some anticipated harm, that harm must be reasonably likely and specific.
When it is unclear whether or not harm will ever come to the plaintiff, the case is not ripe.

Question 27

Taxing power of Congress

Answer 27

Article I, § 8, cl. 1, of the Constitution gives Congress the power
to ‘‘lay and collect Taxes . . . and Excises, to pay the Debts and
provide for the Common Defence and general Welfare of the United States.’’ So Congress can tax for the purpose of ‘‘provid[ing] for the . . . general Welfare.’’ That’s what it is doing here. Because the power is plenary (i.e., complete) a tax measure will be upheld so long as it
bears some reasonable relationship to revenue production and does not violate any specific constitutional provision.
Here, the purpose of the tax is to raise revenue, so the requirement of ‘‘reasonable relationship to revenue production’’ (expressed in the
choice as not having any ‘‘provisions extraneous to tax needs or purposes’’) is satisfied. There is no provision in the Constitution that
this tax would violate. Therefore, it’s valid.

Question 28

Due Process clause of fifth amendment

Answer 28

Equal Protection Clause of the
Fourteenth Amendment applies to the federal government through the
Due Process Clause of the Fifth Amendment.
The Equal Protection Clause, operating on the federal government
through the Due Process Clause of the Fifth Amendment, provides a strong basis for challenging the statute because the statute draws distinctions on racial lines. In order to determine whether a statute is valid under equal protection, you have to determine the basis of the classification, and then apply the appropriate level of scrutiny (strict,
intermediate, or rational basis) to the statute.
When a statute classifies individuals based on their race, which is a ‘‘suspect classification,’’ a court will review the statute using strict scrutiny. This means that in
order for the statute to be valid, the classification must be necessary to promote a compelling governmental interest. Because this test is so difficult to pass, the application of strict scrutiny will generally result
in a statute being ruled invalid

Question 29

Jurisdiction of fed courts

Answer 29

The jurisdiction of the federal courts is
addressed in Article III, § 2, of the Constitution. Among other cases,
federal courts may hear cases between citizens of different states
(‘‘diversity’’ jurisdiction), cases arising under the Constitution or a federal law or treaty (‘‘federal question’’ jurisdiction), and those wherethe United States is a party.

Article III, § 2, of the Constitution gives the Supreme Court
original jurisdiction over cases where a state is a party, as here.
Congress has the power to create lower federal courts, and give them jurisdiction concurrent with the Supreme Court. In fact, Congress specifically authorized federal courts to hear cases brought by aliens against states

Choice D suggests that there’s federal question jurisdiction under these facts. If you look at the farmer’s claim, you can deduce that it will address an equal protection violation, since the statute under which the farmer has been injured creates a suspect classification: It forbids aliens from owning more than 100 acres of land, and alienage is a suspect classification. Equal protection is protected by the federal
Constitution, so the farmer’s claim would ‘‘arise’’ under the
Constitution, giving the federal court federal question jurisdiction over
the case.

Question 30

state laws to meet 3 requirements

Answer 30

1. It must be enacted within the state’s powers (e.g., police powers);
2. It must not violate any person’s constitutional rights; and
3. It must not improperly burden interstate commerce.

Question 30

state laws to meet 3 requirements

Answer 30

1. It must be enacted within the state’s powers (e.g., police powers);
2. It must not violate any person’s constitutional rights; and
3. It must not improperly burden interstate commerce.

Question 31

Free exercise of religion

Answer 31

‘free exercise’’ part of the First Amendment’s Religion Clause
guarantees the right to free exercise of religion. However, as is furtherexplained in the free exercise clause
does not relieve a person of the obligation to obey a valid, neutral, and “generally applicable” prohibition of particular conduct. Since the prohibition on animal cruelty constitutes such a neutral and generally applicable prohibition, the priest’s conviction does not violate his freedom of religion.
Incidentally, note that while the conduct of religion can be
regulated, the beliefs themselves cannot. The right to hold religious beliefs is considered absolut

n. In order to gain protection a religious belief must be held in good faith, and it must parallel an orthodox religious belief; it cannot be merely a political or philosophical view. United States v. Seeger (1965). Thus, a belief in
Satan could constitute a religious belief. If the priest, in fact, had a religious belief in Satan, and the statute here violated the priest’s right to the free exercise of religion (e.g., by forbidding any worship of Satan), his conviction would be overturned

Question 32

Gender based classification

Answer 32

Gender-based classifications are subject to intermediate scrutiny, which requires the government to show that the classification be substantially related to an important government objective. The use of
peremptory challenges to exclude all women from a jury cannot survive mid-level review because it fails to further the state’s legitimate interest in achieving a fair trial, while reinforcing stereotypical assumptions about women. J.E.B. v. Alabama (1994).

Question 33

commerce clause in case of state acting as a regulator

Answer 33

Congress’s power over interstate commerce is nonexclusive. If
Congress has not enacted laws regarding the subject, a state or local
government may regulate aspects of interstate commerce if (and only if) the regulation: (1) does not discriminate against out-of-state
competition to benefit local economic interests; and (2) does not
unduly burden interstate commerce. This limit on the powers of state or local governments to regulate or affect interstate commerce is sometimes called the ‘‘dormant Commerce Clause.’’
By reducing the amount of taxes paid by assemblers of computers
in an amount equal to the portion of computer components
manufactured in the state, the city is discriminating against out-ofstate competition to benefit local economic interests. This discrimination causes the tax measure to violate test (1) above.
Consequently, the ordinance violates the dormant Commerce Clause
principle.

Question 34

Is it constitutional for the provision for construction
of buildings to be used for secular purposes, at religious colleges and universities

Answer 34

Thus, there’s a potential
Establishment Clause problem. In such situations, the test used to
determine if the enactment is constitutional is from Lemon v.
Kurtzman (1971):
1. The statute must have a secular purpose;
2. It must have as its principal or primary effect neither the
advancement nor inhibition of religion; and
3. It must not foster excessive government entanglement with
religion.
Choice A implicitly recognizes that this test is met. The central
issue here is the third element, ‘‘excessive entanglement,’’ because it is purely judgmental — the only real way to know if a particular provision constitutes excessive entanglement is to see if the Supreme Court has already addressed the issue. And, by gum, with this one, it
has. The issue of government grants for construction of buildings to be used exclusively for secular education, at religious colleges and universities, was addressed in Tilton v. Richardson (1971). The grants were upheld, on the basis that, as long as the schools involved were
not ‘‘permeated with religion,’’ the grants didn’t involve excessive entanglement with religion.

Question 35

Display of native christmas tree in state legislature lobby surrounded by non religious- is it secular or religious

Answer 35

ymbol.
The constitutionality of the display of a religious symbol such as a nativity scene will be a question of fact. The most important single factor seems to be the context in which the religious symbol is displayed: If the religious symbol is presented by itself in what is clearly a space reserved by the government for its own property and its own messages, the Court is likely to conclude that a reasonable
observer would believe that the government was endorsing the religious message. Conversely, the presence of other non-religious symbols nearby, or the existence of a sign indicating that the display was furnished by private parties, may well be enough to lead a
reasonable observer to the conclusion that the government was not endorsing religion. See Allegheny County v. ACLU (1989) (nativity
scene displayed in a courthouse violated the Establishment Clause, in part because the absence of any nearby non-religious symbols as part of the display would lead a reasonable observer to conclude that the
city was endorsing a religious observance, not merely celebrating the secular holiday season).
On this standard, the proposed display of the nativity scene would be unconstitutional. The nativity scene would not be surrounded by
non-religious symbols having to do with the holiday season, a fact that would rebut the implication that the nativity scene was just part of a secular celebration of the holiday season

Answer 36

Under the dormant Commerce Clause, a state regulation whichaffects interstate commerce must meet each of the following
requirements to be upheld: (1) the regulation must pursue a legitimate
end; (2) the regulation must be rationally related to that legitimate
end; and (3) the regulatory burden imposed by the state on interstate
commerce, and any discrimination against interstate commerce, must
be outweighed by the state’s interest in enforcing the regulation. The fact that the means used is not the ‘‘best’’ means of solving the
problem — i.e., is not the means having the tightest possible fit with the governmental objection — is irrelevant under this test. (Factor (2)above requires just a ‘‘rational relation’’ between means and end, avery easy-to-satisfy test.) So the fact that the county has tried to solve
its congestion problem ‘‘one step at a time’’ (by eliminating some sources of congestion but not the biggest source) is also irrelevant —
as long as the county has eased the problem somewhat, that’s all that is required as to the means-end fit

Question 37

Procedural due process

Answer 37

was ‘‘property,’’ which the state
could not take away from him without due process.
Where a state-issued license is required to pursue a business or
profession, a person who has already obtained the license has a
‘‘property’’ interest in that license for Fourteenth Amendment due
process purposes. Consequently, that property may not be taken away without due process of law.
Precisely what procedural safeguards the barber is entitled to is not certain, but the more serious the threatened loss of property or liberty, the wider the array of procedural safeguards required.
Mathews v. Eldridge, 425 U.S. 319 (1976). Here, the threatened loss (the right to practice one’s profession) is serious, so extensive safeguards ought to be given. Since the proceeding is analogous to a criminal trial — the Board is determining whether the barber used his premises to commit a crime — he has a strong claim of entitlement to the sorts of procedures used in criminal trials, including the right to
cross-examine his accusers.

Question 38

Immunity of federal govt from state taxation

Answer 38

The federal government is immune from taxation by any state.
Federal immunity from state taxation exists only in these situations where the ‘‘legal incidence’’ of the tax is on the United States.
Employees of the federal government are not immune from state taxation. Graves v. New York Ex Rel. O’Keefe, 306 U.S. 466 (1939).

Question 39

Powers of the president- can he set up an executive commission to perform state functions- health with funds being appropriated by Congress and no fed statutes

Answer 39

because the Commission is a temporary agency set up for a specific purpose.
Creation of an advisory commission, such as the one here, falls
within the President’s executive powers. Congress has the right to earmark specified federal monies to be spent as the President shall determine. Therefore, nothing about this arrangement violates any
Constitutional provision.

Question 40

Thirteenth amendment

Answer 40

The Thirteenth Amendment is, in fact, the
only constitutional provision explicitly limiting private acts by
individuals. Under it, if Congress could rationally determine that the
conduct it is prohibiting imposes a ‘‘badge or incident’’ of slavery on a
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victim, the statute will be valid. Jones v. Alfred H. Mayer Co. (1968).
This provision is exceptionally broad, giving Congress the power to prohibit virtually all racial discrimination against blacks, and whites,
for that matter.
Here, the statute will serve to eliminate racial discrimination
against blacks, and Congress could rationally determine that when people conspire to deny blacks housing, employment, or education
due to their race, this constitutes a ‘‘badge or incident’’ of slavery. As
a result, the statute will be valid, and the Thirteenth Amendment will
be the source of the validity. Since C recognizes this, it’s the best
response.
(A) is not the best respon

Question 41

racial set aside in municipal body when there has been no preference

Answer 41

racial set-asides have to pass a strict scrutiny test.
Equal protection requires race-based affirmative action plans to be subject to the same strict scrutiny as are governmental actions that intentionally discriminate against racial minorities. (See the discussion
of choice A above.) In other words, the Supreme Court takes the view that when minority groups are given express, racially oriented preferences, they are not receiving ‘‘equal protection’’ — they are instead receiving a preference, one that may well constitute a denial of equal protection to the members of the non-favored (majority) racial
group. Here, because the government entity giving the preference has
not been shown to have discriminated in the past, the preference
would fail the required strict scrutiny

Question 42

Eleventh Amendment

Answer 42

The Eleventh Amendment, as a general matter, bars a citizen from suing a state in federal court without that state’s consent. One of the exclusions to the Amendment is a suit by the federal government against a state. Here, the lawsuits covered by the statute are between states and the federal government. The Eleventh Amendment does not bar fed suit by fed government against the state

Question 43

non justiciable - political standing

Answer 43

A ‘‘political question’’ is one that the Constitution commits to
another governmental branch, which the judicial process is inherently incapable of resolving and enforcing. These are the criteria for determining political questions:
1. A ‘‘textually demonstrable’’ constitutional commitment of the issue to the political branches;
2. Lack of manageable standards for judicial resolution;
3. A need for finality in the action of the political branches; and
4. Difficulty or impossibility of devising effective judicial
remedies.

Question 44

immunity from suits in legislative assembly

Answer 44

ecause the statements were made during the legislative process.
Article I, § 6, states that for any speech or debate in either the
House of Representatives or the Senate, members of Congress shall
not be questioned in any other place. This is the ‘‘Speech and Debate
Clause.’’ The clause clearly applies to the senator’s statement: The
statement was made on the floor of the Senate, so it falls within even
the most narrowly defined construction of the Speech and Debate
Clause. (The fact that the speech didn’t relate to current legislation is
irrelevant — as long as the words were spoken on the floor during the
session, that’s enough.)
With respect to the senator’s legislative assistant, the Clause itself,
by its literal terms, seems not to apply. But the Court has held that the
clause applies ‘‘not only to a Member but also to his aides insofar as
the conduct of the latter would be a protected legislative act if
performed by the Member himself.’’ Gravel v. U.S. (1972). Thus, since
the senator is covered, so is his legislative assistant.