Constitutional Law

Question 1

George filed suit against Al under the federal Securities and Exchange Act. While George’s suit was pending, in another case involving the federal Securities and Exchange Act, the United States Supreme Court decided that certain actions filed under the Act are subject to a one-year statute of limitations. In accordance with this decision, the federal district court dismissed George’s action and entered final judgment in favor of Al. No appeal was taken. The next day, Congress adopts legislation that permits a longer statute of limitations for such cases. The legislation provides for the reopening of final judgments such as the one against George, with instructions to apply the longer statute of limitations to cases that were pending the day before the Supreme Court was announced.

The Provision that provides for the reopening of final judgment is:

(a) Constitutional, because statutes of limitations are legislative rather than judicial
(b) Constitutional, because Congress is free to alter the limitations period for all pending and future cases.
(c) Unconstitutional, because the federal judiciary, not Congress, is vested with the power to decide cases and controversies.
(d) Unconstitutional, because application of the provision to a pending case would be an ex post facto law.

Answer 1

(c) Unconstitutional, because the federal judiciary, not Congress, is vested with the power to decide cases and controversies.

Question 2

Pleasantville is a small community. Recently Pleasantville has experienced a substantial growth in its population. The longtime residents of Pleasantville are worried that a substantial increased in the population would threaten the quiet atmosphere. Therefore, to restrict growth, a zoning ordinance is passed designating the remaining undeveloped land in the community of Pleasantville for large, one-family dwellings only.
The Home Builders Association is an organization made up of companies specializing in building and selling small inexpensive homes. The Association’s best chance for bringing suit to enjoin application of the Pleasantville zoning ordinance would be to establish injury:

(a) To potential purchasers.
(b) To the community as a whole
(c) To the future business of the Association members
(d) To companies wishing to locate in the Pleasantville area.

Answer 2

(c) To the future business of the Association members

Question 3

Suppose Congress enacts a uniform product liability statute to govern recovery by private parties of damages for personal injury or property loss resulting from product defects.

The Act preempts and replaces state tort law with uniform national liability standards. Suppose, further, that the Act contains no provisions addressing the jurisdiction of the
federal courts to hear cases or controversies arising under the Act.

A The federal district courts will have jurisdiction to hear cases or controversies arising under the Act, pursuant to 28 U.S.C. § 1331.

B The state courts will have jurisdiction to hear cases or controversies arising under the Act under various state jurisdictional statutes.

C The Supreme Court may decline to hear challenges to the statute’s constitutionality within its discretion.

D All of the above.

Answer 3

D All of the above.

Question 4

Driving without a license is a misdemeanor in the state of Nirvana. Wells Fargo, a resident of Nirvana, delivers mail on an urban route in Easton, the largest city in Nirvana, for the United States Postal Service, an instrumentality of the United States Government.

He does not have a valid driver‟s license. If Wells Fargo continues to drive the mail truck as part of his postal service duties, may he be punished by the state for driving without a license?

A Yes, unless Wells Fargo is charged for driving on state and local roads outside of federal enclaves such as national parks and military bases.

B Yes, whether or not Wells Fargo is charged for driving without a license on state and local roads outside of federal enclaves such as national parks and military bases.

C No, because Nirvana has no authority to regulate the employment practices of a federal instrumentality.

D No, but Nirvana may tax Wells Fargo for driving without a license

Answer 4

C No, because Nirvana has no authority to regulate the employment practices of a federal instrumentality.

Question 5

Suppose Congress enacts a uniform product liability statute to govern recovery by private parties of damages for personal injury or property loss resulting from product defects. The Act preempts and replaces state tort law with uniform national liability standards. Suppose, further, that the Act contains no provisions addressing the jurisdiction of the federal courts to hear cases or controversies arising under the Act.

A The federal district courts will have jurisdiction to hear cases or controversies arising under the Act, pursuant to 28 U.S.C. § 1331.

B The state courts will have jurisdiction to hear cases or controversies arising under the Act under various state jurisdictional statutes.

C The Supreme Court may decline to hear challenges to the statute’s constitutionality within its discretion.

D All of the above.

Answer 5

D All of the above

Question 6

Driving without a license is a misdemeanor in the state of Nirvana. Wells Fargo, a resident of Nirvana, delivers mail on an urban route in Easton, the largest city in Nirvana, for the United States Postal Service, an instrumentality of the United States Government. He does not have a valid driver‟s license. If Wells Fargo continues to drive the mail truck as part of his postal service duties, may he be punished by the state for driving without a license?

A. Yes, unless Wells Fargo is charged for driving on state and local roads outside of federal enclaves such as national parks and military bases.

B. Yes, whether or not Wells Fargo is charged for driving without a license on state and local roads outside of federal enclaves such as national parks and military bases.

C. No, because Nirvana has no authority to regulate the employment practices of a federal instrumentality.

D. No, but Nirvana may tax Wells Fargo for driving without a license.

Answer 6

C. No, because Nirvana has no authority to regulate the employment practices of a federal instrumentality.

Question 7

The Federal Alien Registration Act (FAR) requires all aliens over the age of fourteen residing within the United States to register with the federal government. FAR also provides a comprehensive plan describing the terms and conditions under which aliens may enter and remain in this country. Among other things, FAR imposes rigid requirements, regarding health, education, integrity, character, and length of residence. Finally, FAR was drafted in part to comply with provisions of treaties to which the United States is a party. There is no provision of FAR that expressly preempts state law. The Alien and Registration Act of Nirvana (ARAN) does not conflict with any specific provision in FAR. ARAN does, however, impose additional reporting and registration requirements on aliens residing in Nirvana.

A. ARAN is not preempted because there is no provision of FAR that expressly preempts state law.

B. ARAN is not preempted because ARAN does not conflict with any specific provision in FAR.

C. ARAN is preempted because the federal scheme is pervasive, providing detailed regulations applicable to resident aliens.

D. ARAN is preempted because aliens may only be regulated by the United States are not subject to regulation by the state.

Answer 7

D. ARAN is preempted because aliens may only be regulated by the United States are not subject to regulation by the state.

Question 8

California imposes an ad valorem property tax on shipping containers that are owned by shipping companies that are present in the state on “tax day.” California charges the tax for containers owned by a Japanese shipping company in a Port of Los Angeles dock on “tax day.” The tax is apportioned based on the number of days of the year that the containers are used in the state. The same containers are subject to an unapportioned property tax in Japan.

A The ad valorem property tax as applied to the Japanese shipping company is valid so long neither a treaty of the United States nor a Congressional statute has enacted legislation preventing imposition of the tax.

B The ad valorem property tax as applied to the Japanese shipping company is valid because California has apportioned its tax in a reasonable manner, even if Japan has not.

C The ad valorem property tax as applied to the Japanese shipping company is invalid because the tax lacks a sufficient nexus (“minimum contacts”) with California.

D The ad valorem property tax as applied to the Japanese shipping company is invalid because it results in multiple taxation of an entity engaged in foreign commerce due to the fact that the company must also pay Japan a property tax based on the full value of the same containers.

Answer 8

D. The ad valorem property tax as applied to the Japanese shipping company is invalid because it results in multiple taxation of an entity engaged in foreign commerce due to the fact that the company must also pay Japan a property tax based on the full value of the same containers.

Question 9

A state imposes an annual tax of $36 per axle on all trucks that use the state’s highways.

A. The state tax is valid because the tax is imposed on all trucks that use the state’s highways, whether they are registered in the state or not.

B. The state tax is valid unless the state only prosecutes trucks from out-of-state for nonpayment.

C. The state tax is invalid because its practical effect is to discriminate against interstate commerce because trucks operating interstate must pay similar taxes to other states, while purely intrastate trucks pay the tax only once.

D. The state tax is invalid but only if the burden on interstate commerce outweighs the legitimate state interest in maintaining its roads.

Answer 9

C. The state tax is invalid because its practical effect is to discriminate against interstate commerce because trucks operating interstate must pay similar taxes to other states, while purely intrastate trucks pay the tax only once.

Question 10

Jim, a small brewer with his only offices and facility in Florida, sells beer over the Internet to purchasers throughout the United States. Alabama imposes a sales tax on all purchases of beer by consumers placing order from within the state of Alabama, where the products are received by residents of the state in Alabama. An Alabama court orders Jim, who has no other connection with the state except for the Internet beer sales, to collect the Alabama state tax on its behalf. Jim refuses. Alabama sues Jim in a federal district court in Alabama, invoking the court’s diversity jurisdiction. Jim appears to defend the suit and immediately files a motion to dismiss the case under Rule 12(b)(6).

A. Jim does not have to pay the tax because there are insufficient “minimum contacts” between Jim and Alabama under the Due Process Clause of the Fourteenth Amendment.

B. Jim does not have to pay the tax because the seller lacks a sufficient nexus with Alabama for the state to impose on the seller a duty to collect use taxes for sales made to residents of the state under the Dormant Commerce Clause.

C. Jim must pay the tax because he has waived his objection to personal jurisdiction by appearing and defending the case on the merits.

D. Jim just pay the tax because he waived his objection to personal jurisdiction by making the Rule 12(b)(6) motion without joining his Rule 12(b)(2) personal jurisdiction objection.

Answer 10

B. Jim does not have to pay the tax because the seller lacks a sufficient nexus with Alabama for the state to impose on the seller a duty to collect use taxes for sales made to residents of the state under the Dormant Commerce Clause.

Question 11

Hawaii imposes a tax on all sales of liquor made within the state, including sales to out- of-state customers. Liquor distilled within the state is exempt from the tax if made from produce grown in the state.

A The tax is invalid as applied to sales to out-of-state customers because the sale has an insufficient nexus to sustain the tax under the Dormant Commerce Clause.

B The tax is invalid even though there is a sufficient nexus because the tax scheme discriminates against out-of-state distillers.

C The tax is valid because there is a sufficient nexus to sustain the tax on sales completed “within” the state under both the Due Process and Dormant Commerce Clauses.

D The tax is valid so long as the burden on interstate commerce is outweighed by the legitimate state interest to encourage a local liquor industry

Answer 11

B The tax is invalid even though there is a sufficient nexus because the tax scheme discriminates against out-of-state distillers.

Question 12

Montana imposes a severance tax on coal mined in the state. The tax is 30% of the value of the coal “severed,” or removed, from the ground. Most of the funds raised by the tax are placed in a trust fund for future expenditures since the revenues far exceed current budgetary needs. About 90% of Montana‟s coal is shipped out of state. The tax is imposed equally upon Montanans and out-of-staters, even though many more out-of- staters felt its incidence because most of the coal is sold to out-of-state utilities where the costs of fuel are passed through through to the out-of-state users of the electricity.

A. The tax is invalid under the Dormant Commerce Clause because there is an insufficient nexus between the out-of-state electricity consumers who bear the incidence of the tax and Montana.

B. The tax is invalid because the tax discriminates against interstate commerce.

C. The tax is invalid because the 30% tax is not reasonably related to the state services provided the coal mines.

D. The tax is valid because the method of measurement of the tax – the value of the coal severed– is reasonably related to the degree of activity of the coal operator in the state, that is, the tons of coal severed.

Answer 12

D. The tax is valid because the method of measurement of the tax – the value of the coal severed– is reasonably related to the degree of activity of the coal operator in the state, that is, the tons of coal severed.

Question 13

Laura has worked as a lawyer for the National Labor Relations Board (NLRB) since 1985. In 1995 she learned that throughout this period, that women‟s restrooms at the NLRB facility where she works were under secret observation by supervisors using one- way mirrors. In 1991, Congress adopted the Federal Employees Privacy Act (FEPA) which requires all federal facilities to respect the privacy rights of employees. Though FEPA does not specify that restroom surveillance falls within the scope of the Act, in 1993 the U.S. Court of Appeals for the D.C. Circuit concluded that FEPA prohibits such activity. In 1995 Laura sued three NLRB supervisors, alleging that they had violated her privacy rights under the Constitution and under FEPA. She sought an injunction against further surveillance of the women‟s restrooms, and damages. The trial court found that the defendants violated Laura‟s privacy rights under the Constitution and under FEPA.

A. Laura may not obtain a judgment against the supervisors because of the doctrine of sovereign immunity.

B. Laura may not obtain a judgment against the supervisors because they are absolutely immune from suit with respect to activities undertaken within the scope of their governmental employment.

C. Laura may not obtain a judgment against the supervisors regarding the period before 1991..

D. Laura may obtain the injunction against future surveillance but may not be able to obtain damages for the period before 1993.

Answer 13

D. Laura may obtain the injunction against future surveillance but may not be able to obtain damages for the period before 1993.

Question 14

President Buchanan, a bachelor, fell in love with Monique, a White House intern. Overtaken by a passionate fantasy, the President decided that he simply had to bring her some flowers at the White House after a late night meeting with the Congressional leadership on Capitol Hill. He instructs the Secret Service to park the White House limousine and personally opens an unlocked door at “Minnie‟s Flower Shop” at 1400 Pennsylvania Ave., taking three dozen long-stem roses and leaving his credit card information at the unoccupied cash register. The D.C. police observe the incident. An indictment is brought against President Buchanan for petty theft.

A. President Buchanan is not subject to prosecution because of the doctrine of sovereign immunity.

B. President Buchanan is not subject to prosecution because the President of the United States is absolutely immune from suit for acts taken within the „outer perimeter‟ of his official responsibility.

C. President Buchanan is not subject to prosecution if the President reasonably did not know that his entry through the unlocked flower shop door was illegal.

D. President Buchanan is subject to prosecution because the President enjoys no immunity from criminal actions taken while in office.

Answer 14

D. President Buchanan is subject to prosecution because the President enjoys no immunity from criminal actions taken while in office.

Question 15

Muhammad was fired from his job at the University of California after the university discovered that he was a member of a radical Islamic sect. Muhammad had been working on a project funded heavily by the federal government. In its contract with the federal government, the university agreed that no one posing a security risk would be allowed to work on the project. Muhammad sues the university in federal court under Title VII and under 42 U.S.C. § 1983, alleging that the university violated his First Amendment right of freedom of religion. He seeks damages of $250,000.

A. Muhammad’s suit under Title VII is barred by the Eleventh Amendment.

B. Muhammad suit is barred because neither the state nor a state entity is a “person” who can be sued under § 1983.

C. Both A & B.

D. Neither A nor B.

Answer 15

C. Both A & B.

Question 16

Governor R. Lean Torrem of Utah had his eye on the U.S. Presidency and fully intended to seek that office in 2012, but always in the back of his mind was his one past “indiscretion” five years earlier. The Governor feared that as his Presidential election effort gained more and more national media attention, media attention would be drawn to his one past “indiscretion.” Nonetheless, he continued to pursue his ambition.
The “indiscretion” involved the Governor‟s short-lived extra-marital affair with a 19- year-old campaign volunteer named Miss Always Pasionada. The Governor recently learned that Pasionada was currently managing (and occasionally performing) at a small, insignificant so-called “Gentlemen‟s Club”( aka strip joint) in Provo, Utah. In an effort to destroy Pasionada‟s media credibility, before the press discovered her or questioned her about her affair with Governor Torrem, the Governor ordered her arrest and charged her with violating the state‟s criminal pornography law. Speaking on national television from the Governor‟s mansion, Torrem told his adoring public, “Today, the state police of Utah arrested a notorious prostitute named Always Pasionada. This vile woman is personally responsible for most of the vice and smut on the west coast of our great nation. Worse yet, she is a habitual liar, who is mentally incapable of speaking the truth on any subject. My fellow Americans, this is the kind of law enforcement you can exppect for an R. Lean Presidency.”
The Governor‟s ploy seemed to work. From jail, sweet Pasionada told representatives of the press many “hot” stories about her affari with Governor Torrem; however, none of Pasionada‟s stories were believed by the press, and none were published. Angered by the disbelief exhibited by the press, Pasionada filed a defamation and false arrest suit against the state of Utah and Governor R. Lean Torrem. Of course, neither the Governor nor the State of Utah had formally or informally consented to be sued for anything.

You are the federal judge assigned to Miss Always Pasionada v. State of Utah & R. Lean Torren. You should–

A Dismiss the action against the State of Utah because of the Tenth Amendment.

B Proceed with the action against the State, but dismiss the action against the Governor because the Governor is protected by the Speech and Debate Clause.

C Dismiss the action against the State of Utah because of the Eleventh Amendment.

D Dismiss the action against the Governor because of the Supreme Court’s decision in Nixon v. Fitzgerald.

Answer 16

C. Dismiss the action against the State of Utah because of the Eleventh Amendment.

Question 17

Several employees for the Georgia Department of Transportation have brought an action in Georgia state court against the department, claiming that its compensation scheme discriminates against older workers, in violation of the federal Age Discrimination in Employment Act (ADEA). The ADEA makes it unlawful for any employer, including “a State . . .or any agency or instrumentality of a State” – to discriminate against any employee “because of such individual‟s age.” Plaintiffs seek back pay, damages, and permanent salary adjustments. The federal statutes permits actions to be brought in federal court but does not address whether or not actions may be brought in state court.

A. The case must be dismissed because of the Eleventh Amendment.

B The case must be dismissed because Congress did not expressly authorize suits under this federal law to be brought in state court.

C. The case may proceed because the ADEA was enacted to enforce civil rights protected by the Fourteenth Amendment.

D. The case may proceed with respect to the request for permanent salary adjustments but not for back pay and damages.

Answer 17

A. The case must be dismissed because of the Eleventh Amendment.

Question 18

Dick brings a class action in federal court against Jim Bob, executive director of the South Florida Water Management District, challenging the district‟s failure to adhere to federal time limits for processing “Everglades Restoration” permit applications. Dick, who ended up having to sell property after the delays, seeks damages from the state treasury. Florida law provides, “A person who is wrongfully denied a permit provided or administered by this state may bring suit against the state to recover damages proximately caused by that denial in a court of competent jurisdiction.”

A. The case must be dismissed because of the Eleventh Amendment.

B. The case must be dismissed because the cause of action arises under federal law.

C. The case may proceed because the cause of action arises under federal law.

D. The case may proceed because the state has waived its immunity from suit.

Answer 18

A. The case must be dismissed because of the Eleventh Amendment.

Question 19

The Wisconsin state courts contain the following provision, enacted to prevent state and local governments from having to litigate cases without having an opportunity prior to commencement of the suit to settle: “No state court shall have jurisdiction regarding a suit against a state or local governmental entity or officer, until 120 days after the plaintiff has notified the defendant of his injury and the amount of the claim.”
Brisco was in the sixth grade at Clara Barton Elementary School, a public school in Madison, Wisconsin. On September 11, 2001, Brisco came to school wearing one small earring. The previous school year the school principal has issued a rule against the wearing of earrings by male students because he believed that this practice denoted membership in certain street gangs and increased the likelihood that gang members would terrorize other students. Brisco was reminded of this rule, but he refused to remove the earring, asserting that it was a symbol of black pride. Brisco was immediately suspended for 20 days. Immediately after the suspension, Brisco filed an action in state court in Madison, Wisconsin, under 28 U.S.C. § 1983, against the Clara Barton School and its principal, Thomas, asserting that he had been suspended without due process of law in violation of the Fourteenth Amendment. Brisco seeks both reinstatement and damages. Defendants move to dismiss the action for lack of jurisdiction, on several grounds.

The first grounds asserted by Defendants is sovereign immunity. How should the court rule?

A. The court should reject this grounds for dismissal because the Eleventh Amendment does not apply to an action in state court.

B. The court should reject this grounds for dismissal for both defendants only if Clara Barton School is not considered an instrumentality of the State of Wisconsin.

C. The court should grant the motion as to Clara Barton School but deny the motion as to Thomas because of the “stripping” doctrine of Ex Parte Young.

D. None of the above.

Answer 19

D. None of the above.

Question 20

The second grounds asserted by Defendants is that Brisco did not give Defendants the 120 days notice in advance of commencing suit. How should the court rule?

A. The court should dismiss the suit without prejudice because this is a procedural matter governed by state procedural law.

B. The court dismiss the suit with prejudice because the state policy requiring notice of claim is rooted in policies unrelated to the definition of any particular substantive cause of action.

C. The court should dismiss the suit because the notice-of-claim statute does notdiscriminate between state and federal causes of action against Wisconsin state or local government entities or officers.

D. The court should reject this grounds for dismissal because the statute discriminates against the precise type of claims Congress has created under 42 U.S.C. § 1983.

Answer 20

D. The court should reject this grounds for dismissal because the statute discriminates against the precise type of claims Congress has created under 42 U.S.C. § 1983.

Question 21

Assume that Brisco voluntarily dismisses the claim against Clara Barton School under the state equivalent of Fed.R.Civ.P. 41. The action proceeds against Thomas only. How should the court dispose of the allegation on the merits that there has been a violation of the Fourteenth Amendment?

A. The court should deny the claim because the Fourteenth Amendment only establishes liability of governments, not individuals.

B. The court should deny the claim as to damages but grant the claim as to the request for reinstatement because of the doctrine of Ex Parte Young.

C. The court should uphold the claim because Brisco did not receive constitutionally sufficient procedures prior to his suspension for more than 10 days, violating Due Process.

D. The court should uphold the claim because the policy instituted by Thomas discriminates against male students and permits earrings for female students, violating Equal Protection.

Answer 21

C. The court should uphold the claim because Brisco did not receive constitutionally sufficient procedures prior to his suspension for more than 10 days, violating Due Process.

Question 22

Congress is given the power to “make all laws which shall be ____________ for carrying into execution” the specific powers.

Answer 22

necessary and proper

Question 23

Congress has the general power to decide what types of cases the Supreme Court may hear, so long as it doesn’t expand the Supreme Court’s jurisdiction beyond the judicial power. True or False?

Answer 23

True.

Question 24

Which of the following statements is not true regarding apportionment of a state ad valorem property tax on instrumentalities used to transport goods in interstate commerce?

A. A state may apportion the tax on the basis of the miles traveled within the state compared to the miles traveled out of state.

B. A state may also apportion the tax on the basis of the average number of instrumentalities in the state on tax day.

C. A state may not impose an ad valorem property tax on instrumentalities of interstate commerce to the extent that a taxpayer can prove any double taxation.

D. For purposes of the Commerce Clause, to require apportionment, a taxpayer has the burden of establishing that an instrumentality has acquired a taxable situs outside his domiciliary state.

Answer 24

C. A state may not impose an ad valorem property tax on instrumentalities of interstate commerce to the extent that a taxpayer can prove any double taxation.

Question 25

If a state tax on interstate commerce discriminates against a natural person who is a nonresident, which of the following lists contains the constitutional clauses most likely to be relevant in determining whether the tax is valid?

A. Commerce Clause, Equal Protection Clause, and Fourteenth Amendment Privileges or Immunities Clause

B. Commerce Clause, Equal Protection Clause, and Article IV Privileges and Immunities Clause

C. Commerce Clause, Equal Protection Clause, and the Privileges or Immunities Clause of the Fourteenth Amendment

D. Commerce Clause, Article IV Privileges and Immunities Clause, and the Privileges or Immunities Clause of the Fourteenth Amendment

Answer 25

B. Commerce Clause, Equal Protection Clause, and Article IV Privileges and Immunities Clause
Explanation

The Commerce Clause, Equal Protection Clause, and Article IV Privileges and Immunities Clause are the clauses most likely to be relevant in determining whether the tax is valid. The Commerce Clause would be relevant in determining the validity of a state tax on interstate commerce that discriminates against a natural person who is a nonresident. The negative implications of the Commerce Clause (or “the Dormant Commerce Clause”) prohibit taxes that discriminate against nonresidents.

The Privileges and Immunities Clause of Article IV would be relevant in determining the validity of a state tax on interstate commerce that discriminates against a natural person who is a nonresident. This Clause places limitations on state discrimination against nonresidents regarding commercial activities.

The Equal Protection Clause would also be relevant in determining the validity of a state tax on interstate commerce that discriminates against a natural person who is a nonresident. This Clause prohibits states from unreasonably discriminating among similarly situated people.

On the other hand, the Privileges or Immunities Clause of the Fourteenth Amendment would not apply to a state tax on interstate commerce that discriminates against a natural person who is a nonresident because the Fourteenth Amendment Clause does not protect nonresidents. Rather, it prohibits states from denying their own citizens rights of national citizenship.

Question 26

Ad valorem property taxes are taxes based on a percentage of the assessed value of the property in question. A Commerce Clause issue arises when the property taxed moves in interstate commerce.

Which of the following statements is true regarding a state ad valorem property tax under the Commerce Clause?

A. A state may impose an ad valorem property tax on goods shipped through interstate commerce when the goods reach their destination.

B. A state may impose an ad valorem property tax on goods moving through the state proportionate to the amount of time the goods are within the state.

C. A state may impose an ad valorem property tax on goods shipped through interstate commerce when the goods reach their destination.

D. A state may not impose a tax on instrumentalities used to ship goods through interstate commerce.

Answer 26

A. A state may impose an ad valorem property tax on goods shipped through interstate commerce when the goods reach their destination.

A state may impose an ad valorem property tax on goods shipped through interstate commerce when the goods reach their destination. States may not impose ad valorem property taxes on goods in transit, but they may impose such taxes once the goods come to rest.

A state may NOT impose an ad valorem property tax on goods moving through the state even if the tax is proportionate to the amount of time the goods are within the state. As stated above, states may not impose ad valorem property taxes on goods in transit.

A state MAY impose a tax on instrumentalities used to ship goods through interstate commerce. The validity of ad valorem property taxes on instrumentalities of commerce (such as airplanes, railroad cars, etc.) depends on (i) whether the instrumentality has acquired a “taxable situs” in the taxing state (i.e., whether there are sufficient “contacts” with the taxing state to justify the tax), and (ii) since the physical situs of the instrumentalities may change from state to state during the year, whether the value of the instrumentality has been properly apportioned according to the amount of “contacts” with each taxing state.

A state may NOT impose an ad valorem property tax on goods moving through the state if there is a break in the continuity of transit. As discussed above, states may not impose ad valorem property taxes on goods in transit, only on goods that have reached their final destination. A break in transit does not change this rule.

Question 27

If Congress has not enacted laws regarding the subject, a state government may regulate local aspects of interstate commerce if the __________.

A. regulation does not discriminate against out-of-state competition and does not unduly burden interstate commerce
Explanation

B. Narrowly tailored to serve an important state interest

C. Rationally related to a legitimate state objective

D. The regulation is necessary to protect local businesses

Answer 27

regulation does not discriminate against out-of-state competition and does not unduly burden interstate commerce
Explanation

If Congress has not acted, state regulation of interstate commerce is valid if the regulation does not discriminate against out-of-state competition and does not unduly burden interstate commerce.

“Narrowly tailored to serve an important state interest” is an intermediate scrutiny standard used in some equal protection cases. It does not reflect the standard used to judge state regulations of commerce.

“Rationally related to a legitimate state objective” reflects the rational basis test used in some due process and equal protection cases and does not reflect the standard used to judge state regulations of commerce.

“The regulation is necessary to protect local businesses” does not reflect a standard used in any case; if a state regulation seeks to protect local business it generally is invalid under the Dormant Commerce Clause.

Question 28

Privilege, license, franchise, and occupation taxes are cumulatively known as “doing business” taxes. States generally can impose such taxes—on companies engaged exclusively in interstate commerce, as well as on interstate companies engaged in local commerce—for the privilege of doing business within the state.

Which of the following statements is not correct as to the validity of a “doing business” tax?

A. the activity taxed must have a substantial nexus to the taxing state

B. the tax must be fairly apportioned, must not discriminate against interstate commerce

C. must fairly relate to services provided by the state.

D. The tax must be fairly apportioned and cannot be a flat tax.

Answer 28

D. The tax must be fairly apportioned and cannot be a flat tax.

Explanation

It is not true that a “doing business” tax (e.g., privilege, license, franchise, or occupation tax) cannot be a flat tax. Such a tax can be imposed on companies engaged exclusively in interstate commerce, as well as on companies engaged in local commerce, for the privilege of doing business in the state. Such taxes may be measured by a flat amount or may be a proportional rate based on revenue derived from the taxing state.

In either case, the tax must meet the basic requirements: the activity taxed must have a substantial nexus to the taxing state; and the tax must be fairly apportioned, must not discriminate against interstate commerce, and must fairly relate to services provided by the state.

Question 29

In assessing whether a nondiscriminatory state tax on interstate commerce is valid absent any federal legislation in the area, courts will typically consider which of the following factors:

A. There is a substantial nexus between the taxpayer and the state

B. The tax is fairly apportioned

C. The tax has some reasonable relation to revenue production

D. There is a fair relationship between the tax and the services or benefits provided by the state

Answer 29

A, B, and D

Explanation

In assessing whether a nondiscriminatory state tax on interstate commerce is valid absent any federal legislation in the area, typically a court will consider three things:

1. Whether there is a substantial nexus between the taxpayer and the state;
2. Whether the tax is fairly apportioned; and
3. Whether there is a fair relationship between the tax and the services or benefits provided by the state.

Whether a tax has some reasonable relation to revenue production generally will not be considered in assessing whether a nondiscriminatory state tax on interstate commerce is valid absent any federal legislation in the area. Whether a tax has a reasonable relationship to revenue production is something the courts will consider when Congress imposes a tax in an area over which Congress has no regulatory power. Because states have broad authority to regulate under the police power, state taxes generally are not subject to the reasonable relation to revenue production test.

Question 30

Under the Commerce Clause, which types of taxes may be valid?

A. Sales taxes Only

B. Use taxes Only

C. Both sales taxes and use taxes

D. Neither sales taxes nor use taxes

Answer 30

Both sales taxes and use taxes

Explanation

Under the Commerce Clause, both sales taxes and use taxes may be valid. A sales tax is a tax on sales made within a state, and a use tax is a tax on goods purchased out of state and brought into the state for use. Sales taxes generally do not discriminate against interstate commerce and are valid. Use taxes generally will not be held to discriminate against interstate commerce if they merely seek to equalize taxes on goods purchased out of state with those purchased within the state.

Question 31

Can a law that discriminates against interstate commerce be valid under the Commerce Clause?

Answer 31

Yes, Congress can pass laws that discriminate against interstate commerce, and the states can too if authorized by federal law

Explanation

Under the Commerce Clause, Congress can adopt laws discriminating against interstate commerce, and the states can too if authorized by federal law. Congress’s power over interstate commerce is plenary; i.e., Congress can adopt a law discriminating against interstate commerce as long as the law does not violate some other constitutional provision. And although the states generally may not adopt laws that discriminate against interstate commerce, they may do so if authorized by federal law.

Accordingly, the choices indicating that states cannot pass a law even if authorized by Congress and neither the federal government nor the states may pass a law that discriminates against interstate commerce are incorrect.

Question 32

Which of the following statements about the states’ power to tax interstate commerce is not true?

A. Congress may prohibit the states from taxing a particular aspect of interstate commerce.

B. A state tax may discriminate against interstate commerce if Congress authorizes the tax.

C. A state tax might be subjected to a balancing test.

D. If Congress has not acted and the state tax does not discriminate against interstate commerce, the state tax is valid.

Answer 32

D. If Congress has not acted and the state tax does not discriminate against interstate commerce, the state tax is valid.

Question 33

The power to regulate interstate commerce is:

A. A federal power, but states may regulate interstate commerce subject to the negative implications of the Commerce Clause

B. Exclusively federal, and states have no power to regulate any aspect of interstate commerce

C. An exclusive state power that has been reserved to the states by the Tenth Amendment.

Answer 33

A. A federal power, but states may regulate interstate commerce subject to the negative implications of the Commerce Clause

Question 34

To be constitutional, a “doing business” tax (e.g., a privilege, franchise, or occupation tax imposed on businesses for the privilege of doing business in a state):

A. Must be fairly apportioned and cannot be a flat tax

B. Must fairly relate to services provided by the state and cannot be a flat tax

C. Must be fairly apportioned and must fairly relate to services provided by the state.

Answer 34

C. Must be fairly apportioned and must fairly relate to services provided by the state

To be constitutional, a “doing business” tax must be fairly apportioned and must fairly relate to services provided by the state. Additionally, such taxes must tax an activity with a substantial nexus to the taxing state and must not discriminate against interstate commerce.

As long as a “doing business” tax meets the above requirements, it CAN be a flat tax.

Question 35

If Congress has not enacted laws with regard to a specific area of interstate commerce, a state may regulate a local aspect of this interstate commerce:

A. When the state’s regulation is narrowly tailored to serve an important governmental interest

B. When the state’s regulation is rationally related to a legitimate state objective

C. When the regulation is necessary to protect local businesses

D. When the state’s regulation does not discriminate against out-of-state competition and the regulation does not unduly burden interstate commerce.

Answer 35

D. When the state’s regulation does not discriminate against out-of-state competition and the regulation does not unduly burden interstate commerce.

Question 36

If a state tax on interstate commerce discriminates against a natural person who is a nonresident, which of the following Clauses is least likely to be relevant in determining whether the tax is valid?

A. The Privileges and Immunities Clause of Article IV

B. The Equal Protection Clause

C. The Privileges or Immunities Clause of the Fourteenth Amendment

D. The Commerce Clause

Answer 36

C. The Privileges or Immunities Clause of the Fourteenth Amendment

Question 37

A state may impose an ad valorem property tax on goods shipped through interstate commerce when:

A. The goods are moving through the state, as long as the tax is proportionate to the amount of time the goods are within the state

B. The goods are moving through the state and there is a break in the continuity of transit

C. The goods reach their destination

Answer 37

C. The goods reach their destination

A state may impose an ad valorem property tax on goods shipped through interstate commerce when the goods reach their destination. States may not impose ad valorem property taxes on goods in transit, but they may impose such taxes once the goods come to rest.

A state may not impose an ad valorem property tax on goods moving through the state even if the tax is proportionate to the amount of time the goods are within the state. As stated above, states may not impose ad valorem property taxes on goods in transit.

Neither may a state impose an ad valorem property tax on goods moving through the state when there is a break in the continuity of transit. As discussed above, states may not impose ad valorem property taxes on goods in transit, only on goods that have reached their final destination. A break in transit does not change this rule.

Question 38

Which of the following statements is true about the power to tax interstate commerce?

The power belongs exclusively to the states.

neither the states nor the federal government may tax interstate commerce

the power is mostly federal, but states may tax local aspects of interstate commerce.

the power is exclusively federal

Answer 38

the power is mostly federal, but states may tax local aspects of interstate commerce.

Question 39

The Twenty-First Amendment gives state governments wide latitude over the importation of liquor and the conditions under which liquor is sold or used within the state.

Under the Twenty-First Amendment:

a state may adopt a law giving an economic preference to local liquor distributors over out-of-state distributors

a state may prohibit liquor distributors from charging more within the state than the distributor charges in other states

a state may not prohibit all sellers from making direct shipments of liquor to customers within the state

a state may not prohibit interstate shipments to liquor to pass through the state

Answer 39

a state may not prohibit interstate shipments to liquor to pass through the state

A state may not prohibit interstate shipments of liquor to pass through the state just because the Twenty-First Amendment gives the states wide latitude to regulate liquor sales. The states still may not violate the Commerce Clause, and prohibiting interstate shipments from traveling through a state unduly burdens interstate commerce.

Despite the Twenty-First Amendment, a state may NOT adopt a law giving an economic preference to local liquor distributors over out-of-state distributors. Such a law would violate the Commerce Clause, and, as mentioned above, the Twenty-First Amendment does not trump the Commerce Clause.

A state may NOT prohibit liquor distributors from charging more within the state than the distributor charges in other states, despite the Twenty-First Amendment. Such a prohibition has been held to violate the Commerce Clause.

A state MAY prohibit all sellers from making direct shipments of liquor to customers within the state, as the Twenty-First Amendment allows states to broadly control importation of liquor and the conditions under which liquor is sold or used within the state. However, state liquor regulations that constitute only an economic preference for local liquor manufacturers may violate the Commerce Clause. Thus, for example, a state could not prohibit out-of-state sellers from directly shipping to customers within the state while allowing in-state suppliers to do so.

Question 40

The ___________ of Congress are:

1. lay and collect taxes
2. provide for the defense of the country
3. borrow money on the credit of the US
4. regulate commerce with foreign nations, and among the sveral states, ie. the commerce clause
5. regulate immigration and bankruptcy
6. establish post offices
7. control the issuance of patents and copyrights
8. declare war
9. pass all laws needed to govern the District of Columbia and federal military enclaves
10. make all laws which shall be necessary and proper for carrying into execution of the foregoing powers, and all other powers vested by this constitution in the government of the US necessary and proper clause

Answer 40

enumerated powers

Question 41

The enumerated powers of Congress are:

1. ________________
2. provide for the defense of the country
3. borrow money on the credit of the US
4. regulate commerce with foreign nations, and among the sveral states, ie. the commerce clause
5. regulate immigration and bankruptcy
6. establish post offices
7. control the issuance of patents and copyrights
8. declare war
9. pass all laws needed to govern the District of Columbia and federal military enclaves
10. make all laws which shall be necessary and proper for carrying into execution of the foregoing powers, and all other powers vested by this constitution in the government of the US necessary and proper clause

Answer 41

1. lay and collect taxes

Question 42

The enumerated powers of Congress are:

1. lay and collect taxes
2. ___________________
3. borrow money on the credit of the US
4. regulate commerce with foreign nations, and among the sveral states, ie. the commerce clause
5. regulate immigration and bankruptcy
6. establish post offices
7. control the issuance of patents and copyrights
8. declare war
9. pass all laws needed to govern the District of Columbia and federal military enclaves
10. make all laws which shall be necessary and proper for carrying into execution of the foregoing powers, and all other powers vested by this constitution in the government of the US necessary and proper clause

Answer 42

2. provide for the defense of the country

Question 43

The enumerated powers of Congress are:

1. lay and collect taxes
2. provide for the defense of the country
3. _____________________
4. regulate commerce with foreign nations, and among the sveral states, ie. the commerce clause
5. regulate immigration and bankruptcy
6. establish post offices
7. control the issuance of patents and copyrights
8. declare war
9. pass all laws needed to govern the District of Columbia and federal military enclaves
10. make all laws which shall be necessary and proper for carrying into execution of the foregoing powers, and all other powers vested by this constitution in the government of the US necessary and proper clause

Answer 43

3. borrow money on the credit of the US

Question 44

The enumerated powers of Congress are:

1. lay and collect taxes
2. provide for the defense of the country
3. borrow money on the credit of the US
4. ____________________________
5. regulate immigration and bankruptcy
6. establish post offices
7. control the issuance of patents and copyrights
8. declare war
9. pass all laws needed to govern the District of Columbia and federal military enclaves
10. make all laws which shall be necessary and proper for carrying into execution of the foregoing powers, and all other powers vested by this constitution in the government of the US necessary and proper clause

Answer 44

4. regulate commerce with foreign nations, and among the several states, ie. the commerce clause

Question 45

The enumerated powers of Congress are:

1. lay and collect taxes
2. provide for the defense of the country
3. borrow money on the credit of the US
4. regulate commerce with foreign nations, and among the sveral states, ie. the commerce clause
5. _______________
6. establish post offices
7. control the issuance of patents and copyrights
8. declare war
9. pass all laws needed to govern the District of Columbia and federal military enclaves
10. make all laws which shall be necessary and proper for carrying into execution of the foregoing powers, and all other powers vested by this constitution in the government of the US necessary and proper clause

Answer 45

5. regulate immigration and bankruptcy

Question 46

The enumerated powers of Congress are:

1. lay and collect taxes
2. provide for the defense of the country
3. borrow money on the credit of the US
4. regulate commerce with foreign nations, and among the several states, ie. the commerce clause
5. regulate immigration and bankruptcy
6. ____________________
7. control the issuance of patents and copyrights
8. declare war
9. pass all laws needed to govern the District of Columbia and federal military enclaves
10. make all laws which shall be necessary and proper for carrying into execution of the foregoing powers, and all other powers vested by this constitution in the government of the US necessary and proper clause

Answer 46

6. establish post offices

Question 47

The enumerated powers of Congress are:

1. lay and collect taxes
2. provide for the defense of the country
3. borrow money on the credit of the US
4. regulate commerce with foreign nations, and among the several states, ie. the commerce clause
5. regulate immigration and bankruptcy
6. establish post offices
7. ______________________
8. declare war
9. pass all laws needed to govern the District of Columbia and federal military enclaves
10. make all laws which shall be necessary and proper for carrying into execution of the foregoing powers, and all other powers vested by this constitution in the government of the US necessary and proper clause

Answer 47

7. control the issuance of patents and copyrights

Question 48

The enumerated powers of Congress are:

1. lay and collect taxes
2. provide for the defense of the country
3. borrow money on the credit of the US
4. regulate commerce with foreign nations, and among the several states, ie. the commerce clause
5. regulate immigration and bankruptcy
6. establish post offices
7. control the issuance of patents and copyrights
8. ___________
9. pass all laws needed to govern the District of Columbia and federal military enclaves
10. make all laws which shall be necessary and proper for carrying into execution of the foregoing powers, and all other powers vested by this constitution in the government of the US necessary and proper clause

Answer 48

8. declare war

Question 49

The enumerated powers of Congress are:

1. lay and collect taxes
2. provide for the defense of the country
3. borrow money on the credit of the US
4. regulate commerce with foreign nations, and among the several states, ie. the commerce clause
5. regulate immigration and bankruptcy
6. establish post offices
7. control the issuance of patents and copyrights
8. declare war
9. _____________
10. make all laws which shall be necessary and proper for carrying into execution of the foregoing powers, and all other powers vested by this constitution in the government of the US necessary and proper clause

Answer 49

9. pass all laws needed to govern the District of Columbia and federal military enclaves

Question 50

The enumerated powers of Congress are:

1. lay and collect taxes
2. provide for the defense of the country
3. borrow money on the credit of the US
4. regulate commerce with foreign nations, and among the several states, ie. the commerce clause
5. regulate immigration and bankruptcy
6. establish post offices
7. control the issuance of patents and copyrights
8. declare war
9. pass all laws needed to govern the District of Columbia and federal military enclaves
10. _______________

Answer 50

10. make all laws which shall be necessary and proper for carrying into execution of the foregoing powers, and all other powers vested by this constitution in the government of the US necessary and proper clause

Question 51

Robert Repub opposed David Demo for the statewide office of Florida Secretary of State. Three weeks before the scheduled November general election, Demo‟s TV ads urged voters to vote for Demo “because every police department in the state of Florida has endorsed Demo, because Demo is a Vietnam war vet who fought bravely for his country and, unlike Demo‟s opponent, Demo is not Jewish.” Repub knew, and had unimpeachable proof that the first two claims were bold face lies. Repub filed suit against Demo, and as authorized by the State Election Law statutes, requested the court that, upon a finding that Demo‟s ads contained false and misleading statements, to order Demo “to immediately withdraw and cancel all future publications of the above ads, and to order Demo to publicly acknowledge that the first two claims in Demo‟s ads were false. Should Demo fail or refuse to comply with the Court‟s order, as authorized by state law, to order the State Board of Elections to remove Demo‟s name from the November ballot.”
On October 29, Demo filed an Answer to Repub‟s lawsuit with the court, denying all allegations in Repub‟s complaint. Trial was scheduled to begin on December 12. On November 5, the general election was held. Demo won. The Honorable David Demo, Secretary of State of the State of Florida, was sworn into office on November 6. Demo has moved to dismiss the action as moot. At the scheduled trial of the case on December 12, the trial court should–

A Dismiss the case because of the political question doctrine.

B Dismiss the case and apply the constitutional principles of Baker v. Carr.

C Decline to dismiss the case after concluding judicially that the principles of ripeness do not apply.

D Decline to dismiss the case and apply the constitutional principles of mootness.

Answer 51

D Decline to dismiss the case and apply the constitutional principles of mootness.

Question 52

In 2006, the following Resolution came before the Senate, “Four years ago President G.W. Bush intentionally misrepresented to the Senate Iraq‟s possession and control of weapons of mass destruction in order to obtain Senate authorization to commence U.S. preemptive military action against Iraq.” This Senate resolution was intended to have the effect of nullifying the Senate‟s resolution of four years earlier authorizing military action in Iraq. The 2006 Resolution was defeated by a party-line vote of 53 to 47. Immediately thereafter, 44 of the 47 Democratic Senators that voted in favor of the Resolution joined together as co-plaintiffs and sued the President in the United States District Court. The 44 plaintiffs asked the court “to conduct a judicial inquiry calculated to determine if the President of the United States intentionally provided false and deceptive information to the United States Senate regarding Iraq‟s military capabilities in order to wrongfully obtain the Senate‟s authorization to commence U.S. military action against a foreign nation, as such Senate authorization is required by the 1973 War Powers Act.”

Following the views of various Supreme Court justices expressed in the opinion Goldwater v. Carter, 444 U.S. 996 (1979), the trial court should–

A Dismiss, because of the constitutional requirement for an actual case or controversy.

B Dismiss, because of the lack of ripeness for judicial review.

C Both A and B.

D Neither A nor B.

Answer 52

C Both A and B.

Question 53

In an attempt to reduce smog and improve air quality, several states, including Florida (but not including California), pass laws providing that vehicles powered by diesel engines of more than a certain size must be equipped with a specific smog-elimination equipment readily purchasable from commercial sources, in order to drive on the state highways. Ace Trucking Company challenges the law in the state of Florida asserting that it is unreasonably burdens interstate commerce. Which of the following is Ace Trucking‟s best argument in opposition to the state law?

A The law does not constitute market participation by the state of Florida under Dormant Commerce Clause constitutional law precedents.

B The law is not necessary to protect the health and safety of residents of the state.

C The law is overbroad in that it applies to all vehicles traveling through the state (interstate) as well as those which are garaged primarily within the state (intrastate).

D The law is preempted by the federal Clean Air Act.

Answer 53

D The law is preempted by the federal Clean Air Act.

Question 54

After a series of deadly confrontations between motorists experiencing “road rage” on federal highways, the Federal Highway Agency, a federal agency responsible for interstate highway safety, promulgated an agency regulation “forbidding all motorists, except those engaged in law enforcement activities, from carrying loaded guns of any kind in a moving vehicle while traveling on any interstate highways.” The Texas Constitution specifically allows its state citizens to carry loaded weapons. Sarah, a Texas Fish and Game Department law clerk, was cited and fined by the federal agency officers while driving off duty on an interstate highway with a loaded gun in her vehicle. In an action in federal court to collect the fine, Sarah asserts the Texas Constitution as her defense.

The reviewing court should find Sarah–

A Guilty, because of the Dormant Commerce Clause.

B Guilty, because a regulation issued by a federal administrative agency will prevail over conflicting state law.

C Not guilty, because Sarah has a constitutional right under the Second Amendment to hae her guns with her at all times (other than when meeting with her Con Law professor).

D Not guilty, because the State Constitution prevails over a federal administrative regulation.

Answer 54

B Guilty, because a regulation issued by a federal administrative agency will prevail over conflicting state law.

Question 55

Congress recently passed the National Rent Control Act (“NRCA”), which is designed to make the stabilization of rents more effective through the United States. The NRCA will be applicable to all leasehold contracts hereafter entered into between landlords and tenants involving both residential and commercial properties. The new federal law is intended to protect tenants from spiraling rents and “profiteering” by landlords without curtailing the supply of rental units or depriving landlords of their constitutional rights to use and enjoy their property.

The new federal NRCA statute would in all certainty be constitutional as applied to–

A the rental of a state office building owned by the state of Tennessee to a privately- owned business.

B the rental of residential property located in the District of Columbia by an individual landlord.

C the rental of an apartment located in the state of Florida owned by a China Real Estate Company to an individual citizen of Japan.

D the rental of an office building to the government of the City of Miami in the state of Florida by an individual owner/landlord.

Answer 55

B the rental of residential property located in the District of Columbia by an individual landlord.

Question 56

To help administer the new federal NRCA statute, Congress created a seven member NRCA Commission. Under the statute, six members of the Commission are appointed by the President and one by the Speaker of the House. The Commission is authorized to issue rules interpreting rental regulations prescribed under existing federal law. It is also authorized to issue “Cease and Desist” orders, upon the conclusion of a NRCA administrative hearing – directed against landlord or leasing firms who are found to have “intentionally engaged in profiteering.” Persons found by the presiding NRCA administrative law judge to have violated “Cease and Desist” orders may be punishable by fine and/or six months imprisonment.

Consider the following arguments:

I. Congress may not delegate to an executive branch agency the judicial power to make interpretations of already existing federal laws.

II. Congress may not delegate to an executive branch agency the power to punish violators of the agency‟s rules and regulations with a term of imprisonment.

III. Congress may not retain the power to appoint even a minority of members of such an agency as NRCA.

IV. Congress may not delegate to an executive branch agency the legislative power to issue rules and regulations that have the force and effect of law.

Which of the above are the two strongest arguments against the authority of the NRCA?

A I and II.

B I and III.

C II and III.

D III. and IV.

Answer 56

B I and III.

Question 57

After many months of enmity between the United States and the nation of Thessalonica, a U.S. military reconnaissance plane was shot down over the City of Tarressa, the Thessalonica capital. When the U.S. ambassador to Thessalonica tried to deliver a formal protest over the incident, he was kidnapped and taken hostage by the Thessalonica Revolutionary Guard. In response to the public outrage that followed, Congress declared war against Thessalonica. After six weeks of warfare, United States Armed Forces achieved a military victory, and the President proclaimed the cessation of hostilities.
Three months later, at the request of the President, Congress enacted a statute establishing a comprehensive program of Federal Wage and Price Controls. Congress relied on its “War Powers” in enacting the legislation, which was referred to as “The Post-War Wage and Price Control Act.” Although such controls were not imposed during the War, Congress passed the law to deal with the high inflationary conditions that arose following the military conflict. Economic experts agreed that the country‟s spiraling inflationary rate was caused by the demobilization of the armed services after the war.

Which of the following is the most accurate statement regarding the constitutional justification for Congress‟ enactment of “The Post-War Wage and Price Control Act?”

A It cannot be justified as an exercise of war powers because the military conflict had officially ended before the statute was enacted.

B It cannot be justified as an exercise of war powers because Congress‟ failure to establish wage and price controls during the war demonstrates there was no rational relationship between the war and the legislation.

C It can be justified because the concept of constitutional war power authorizes legislation after a war has ended to remedy conditions directly flowing from the war.

D It cannot be justified as an exercise of war powers because a President cannot unilaterally terminate a war until Congress declare s the war officially over.

Answer 57

C It can be justified because the concept of constitutional war power authorizes legislation after a war has ended to remedy conditions directly flowing from the war.

Question 58

Kennedy was a candidate for the United States House of Representatives from the state of South Dakota. The State Registrar of elections refused to put Kennedy‟s name on the ballot because the Registrar believed that Kennedy was not a resident of South Dakota. The Registrar accurately contended that Article I, Section 2, of the U.S. Constitution required a candidate for the House of Representatives, “be an Inhabitant of that State in which he shall be chosen.” As a consequence, Kennedy filed suit in state court against the Registrar of elections, seeking to have her name placed on the ballot. The state court ruled in her favor and determined that Kennedy did in fact qualify as a resident of South Dakota. The Registrar appealed the decision to the state Supreme Court, which, in turn, affirmed the lower court ruling. Thereafter, Kennedy‟s name was placed on the ballot. After a hotly contested election in which Kennedy was depicted as a carpetbagger, she narrowly defeated the incumbent. However, after having been sworn into office as a Member of the House, the House of Representatives held hearings on her “eligibility.” By more than a two-thirds vote, the House voted in favor of a motion asserting that Kennedy was not a resident of South Dakota at the time of her election and, without a trial, she was summarily dismissed from office and the House. Kennedy then brought suit in federal district court against the Speaker of the House and other officers of the House, seeking a court order to be immediately seated in the House of Representatives, consistent with the ruling of the South Dakota Supreme Court.

Which of the following is the strongest argument supporting the defendants (Speaker and other House officers)?

A There is no case or controversy between Kennedy and the officers of the House of Representatives.

B The case presents a non-justiciable political question.

C The suit should have been brought as an original action in the United States Supreme Court.

D Congress is not required to follow the rulings of the state courts on the issue of whether Kennedy was an inhabitant within the meaning of Article I, Section 2.

Answer 58

D Congress is not required to follow the rulings of the state courts on the issue of whether Kennedy was an inhabitant within the meaning of Article I, Section 2.

Question 59

A federal statute directs payment of federal funds to states for use in the improvement and expansion of state hospital facilities. The terms of the statute provide, “No state shall award a contract for hospital improvement or expansion financed in whole or in part by funds received under this section unless said contract requires that the contractor pay its employees „an enhanced minimum wage‟ of $8.00 per hour (one dollar per hour more than the usual federal minimum wage) and unless the state, city or county that receives the federal funds agrees in advance of the receipt of federal funds that the hospital and hospital staff will not perform any abortions therein, unless two medical opinions are obtained establishing a „medical need to perform the abortion because of the health of the mother. Any state receiving any portion of these federal funds must agree to comply with all of these statutory terms.”

The state of California contracted with Billy Builder for the construction of a new wing on the State Terminator Hospital, after receiving funds for that purpose under the above federal statute. The state contract did not require Builder to pay its employees an enhanced minimum wage of $8.00 per hour. Upon learning this, federal officials demanded that the state of California either modify its contract with Builder or return the federal funds received under the statute. When California refused, the federal government sued the State of California in a federal court seeking
the return of the federal money paid to date.

In the action by the United States against the State of California, the court should find for

A. The State of California, because fixing of the wage of state employees is a traditional state function.

B. The State of California, because the regulation of hospitals and of construction practices are traditional state functions.

C. The United States, because Congress has the power to regulate the way in which federal funds are spent.

D. The United States, because some of the materials used in hospital construction are traded in interstate commerce.

Answer 59

C. The United States, because Congress has the power to regulate the way in which federal funds are spent.

Question 60

A federal statute directs payment of federal funds to states for use in the improvement and expansion of state hospital facilities. The terms of the statute provide, “No state shall award a contract for hospital improvement or expansion financed in whole or in part by funds received under this section unless said contract requires that the contractor pay its employees „an enhanced minimum wage‟ of $8.00 per hour (one dollar per hour more than the usual federal minimum wage) and unless the state, city or county that receives the federal funds agrees in advance of the receipt of federal funds that the hospital and hospital staff will not perform any abortions therein, unless two medical opinions are obtained establishing a „medical need to perform the abortion because of the health of the mother. Any state receiving any portion of these federal funds must agree to comply with all of these statutory terms.”

The state of California contracted with Billy Builder for the construction of a new wing on the State Terminator Hospital, after receiving funds for that purpose under the above federal statute. The state contract did not require Builder to pay its employees an enhanced minimum wage of $8.00 per hour. Upon learning this, federal officials demanded that the state of California either modify its contract with Builder or return the federal funds received under the statute. When California refused, the federal government sued the State of California in a federal court seeking
the return of the federal money paid to date.

Assume for purposes of this question that after the above action has been fully resolved through an agreement between the State and Builder modifying their contract to include the $8.00 per hour figure for employees for past and future services. Several employees of Builder, who originally received less than $6.00 per hour while working on the California Terminator State Hospital commence an action for damages against the State of California in a federal court. The State of California moves to dismiss their cause of action.

Which of the following is the clearest reason for dismissal of the suit?

A The State of California is immune from such an action under the Eleventh Amendment to the United States Constitution.

B No federal question is involved.

C The action by the employees is moot.

D The plaintiffs voluntarily accepted the $6.00 wages which Builder paid them.

Answer 60

A The State of California is immune from such an action under the Eleventh Amendment to the United States Constitution.

Question 61

A federal statute directs payment of federal funds to states for use in the improvement and expansion of state hospital facilities. The terms of the statute provide, “No state shall award a contract for hospital improvement or expansion financed in whole or in part by funds received under this section unless said contract requires that the contractor pay its employees „an enhanced minimum wage‟ of $8.00 per hour (one dollar per hour more than the usual federal minimum wage) and unless the state, city or county that receives the federal funds agrees in advance of the receipt of federal funds that the hospital and hospital staff will not perform any abortions therein, unless two medical opinions are obtained establishing a „medical need to perform the abortion because of the health of the mother. Any state receiving any portion of these federal funds must agree to comply with all of these statutory terms.”

The state of California contracted with Billy Builder for the construction of a new wing on the State Terminator Hospital, after receiving funds for that purpose under the above federal statute. The state contract did not require Builder to pay its employees an enhanced minimum wage of $8.00 per hour. Upon learning this, federal officials demanded that the state of California either modify its contract with Builder or return the federal funds received under the statute. When California refused, the federal government sued the State of California in a federal court seeking
the return of the federal money paid to date

Answer 61

…

Question 62

An unmarried woman, four weeks pregnant, wishes to exercise her constitutional right to an abortion set forth in Roe v. Wade, by obtaining the abortion at the California Terminator State Hospital that had received the federal funds described above. The hospital refuses to admit her as a patient. The woman sues. In her action, the court should find for:
A The pregnant woman, because under no circumstances may states deny their citizens the right to exercise their constitutional rights.
B The pregnant woman, because the United States Supreme Court, not a state government administrator, is the final interpreter of constitutional rights.
C The State of California, because granting the pregnant woman‟s request would only serve to encourage the plaintiff to greater promiscuity.
D The State of California, because Congress‟ conditioning of their terms of federal grants may include prohibiting at the grant site the engagement of enumerated constitutional rights.

Answer 62

D The State of California, because Congress‟ conditioning of their terms of federal grants may include prohibiting at the grant site the engagement of enumerated constitutional rights.

Question 63

An unmarried woman, four weeks pregnant, wishes to exercise her constitutional right to an abortion set forth in Roe v. Wade, by obtaining the abortion at the California Terminator State Hospital that had received the federal funds described above. The hospital refuses to admit her as a patient. The woman sues. In her action, the court should find for:
A The pregnant woman, because under no circumstances may states deny their citizens the right to exercise their constitutional rights.
B The pregnant woman, because the United States Supreme Court, not a state government administrator, is the final interpreter of constitutional rights.
C The State of California, because granting the pregnant woman‟s request would only serve to encourage the plaintiff to greater promiscuity.
D The State of California, because Congress‟ conditioning of their terms of federal grants may include prohibiting at the grant site the engagement of enumerated constitutional rights.

Answer 63

D The State of California, because Congress‟ conditioning of their terms of federal grants may include prohibiting at the grant site the engagement of enumerated constitutional rights.

Question 64

Congress passes the Federal Humane Act, prohibiting the interstate transportation of dogs for use in dog fighting competitions or exhibitions. QB is prosecuted in a federal court for violating the Federal Humane Act. QB defends by asserting that the statute is not constitutionally valid because it was enacted for purposes which are entirely noncommercial. The most effective argument in support of the constitutionality of the statute is that:
A Congress is empowered to prohibit cruelty to animals under the federal police power.
B The Congressional power to regulate interstate commerce includes the power to completely exclude items from interstate commerce.
C Under the “Cooley Doctrine,” the federal and state governments have concurrent power to prohibit cruelty to animals.
D Acts of Congress are presumptively constitutional.

Answer 64

B The Congressional power to regulate interstate commerce includes the power to completely exclude items from interstate commerce.

Question 65

64 A federal criminal law makes it a crime for any citizen of the United States not specifically authorized by the President to negotiate with a foreign government for the purpose of influencing the foreign government in relation to a dispute with the United States.
The strongest constitutional ground for the validity of the law is that:
A Under several of its enumerated powers, Congress may legislate to preserve the monopoly of the national government over the conduct of United States foreign affairs.
B The President‟s inherent power to negotiate for the United States with foreign countries authorizes the President, even in the absence of statutory authorization, to punish citizens who engage in such negotiations without permission.
C The law deals with foreign relations and therefore is not governed by the First Amendment.
D Federal criminal laws dealing with international affairs need not be as specific as those dealing with domestic affairs.

Answer 65

A Under several of its enumerated powers, Congress may legislate to preserve the monopoly of the national government over the conduct of United States foreign affairs.

Question 66

62 Congress created the Disaster Claims Commission to adjudicate claims for compensation filed by persons injured in a recent earthquake. Members of the Commission are appointed to three-year terms by the President with the advice and consent of the Senate. The statute makes no provision for removing commissioners during their terms of office. May a newly inaugurated President nevertheless remove the commissioners before their terms have expired because they had been derelict in performing their duties?
A No, if the failure of Congress to make any provision for removal may, under the circumstances, be inferred to mean that it did not want the President to be able to remove the commissioners at will.
B No, if the failure of Congress to make any provision for removal may, under the circumstances, be inferred to mean that it did not want the President to be able to removal the commissioners even for good cause.
C Yes, because the adjudicatory nature of the commission‟s function suggests that the commission was intended to operate under presidential influence and control.
D Yes, because as applied the limitation on removal is an unwarranted encroachment on the President‟s Article II, Section 3 duty to “take Care that the Laws be faithfully executed.”

Answer 66

D Yes, because as applied the limitation on removal is an unwarranted encroachment on the President‟s Article II, Section 3 duty to “take Care that the Laws be faithfully executed.”

Question 67

Obama signs the China-United States Friendship Act creating a China-United States Friendship Commission to administer scholarly, cultural, and artistic exchanges between the two countries. The statute provides that the commission shall be composed of eleven members appointed by the President, including two members of the Senate and two members of the House of Representatives.
Is the commission constitutionally composed?
A No, because Congress, through its members, is seeking to participate in implementing the China-United States Friendship Act, representing a legislative usurpation of and encroachment on the executive‟s assigned duty to execute the law.
B No, because the Incompatibility Clause bars Congress from insisting that the President appoint members of Congress to serve as inferior officers of the United States.
C No, for both reasons set forth in (A) and (B)
D Yes, because the Commission conducts no activities reserved exclusively for the executive or judicial branches.

Answer 67

C No, for both reasons set forth in (A) and (B)

Question 68

If the President and Vice-President die, who will serve as Acting President?
A Secretary of State Hillary Clinton
B Speaker of the House John Boehner
C President Pro Tem of the Senate Robert Byrd
D Senate Majority Leader Harry Reid

Answer 68

B Speaker of the House John Boehner

Question 69

Felonious Punk committed a particularly brutal series of crimes that, because of their interstate character, were violations of a federal criminal statute. Punk was convicted in federal court and sentenced to life imprisonment. Six months after Punk was incarcerated, the President pardoned him. There was a great public outcry, amid charges that the President issued the pardon because Punk‟s uncle had made a large contribution to the President‟s reelection campaign fund. Responding to public opinion, Congress passed a bill limiting the President‟s power to pardon persons convicted under the specific statute that Punk had violated. The President vetoed the bill, but three-quarters of the members of each house voted to override the veto.
The legislation is:
A Unconstitutional, because the power to pardon is expressly granted to the President in the Constitution and is an unqualified power (except as to impeachment).
B Unconstitutional, because the President has the duty to enforce the laws, and therefore has plenary powers.
C Constitutional, under Article I, Section 1.
D Constitutional, because Congress wrote the federal criminal statutes and has the right to determine who should be convicted under such statutes.

Answer 69

A Unconstitutional, because the power to pardon is expressly granted to the President in the Constitution and is an unqualified power (except as to impeachment).

Question 70

Bradley is subpoenaed to appear before the House of Representatives Armed Services Committee and answer certain questions. When he appears, he refuses to answer, and is cited for contempt of Congress. The entire House later votes to order the United States Attorney General to prosecute Bradley pursuant to a federal statute that establishes criminal penalties for contempt of Congress.
50 Assume for the purposes of this question only that Bradley is prosecuted. Which of the following is his best defense to the charge of contempt of Congress:
A He demonstrates that the questions asked him did not relate to any matter upon which Congress could legislate.
B He establishes that he is an employee of the Department of Defense and may not be questioned relating to his duties as an officer of the executive branch of the federal government.
C He establishes that he holds an office by appointment of the President and may not be questioned as to his duties except by the Senate.
D He demonstrates that the questions asked him did not related to any matter as to which funds appropriated by the House were expended.

Answer 70

A He demonstrates that the questions asked him did not relate to any matter upon which Congress could legislate.

Question 71

Because of numerous complaints from minorities, Congress created a committee to investigate private discrimination. The committee found that minority race members were often discriminated against in private contracts of every sort, including contracts for housing, services, and goods. To help alleviate the problem, Congress passed a bill providing that “It shall be unlawful to discriminate against minority race members in the making and enforcement of any public or private contract, of every kind whatsoever.
Any person whose rights under this statute are violated may bring a cause of action against the party that has so violated the person‟s rights in the federal district court for the district in which he resides, seeking treble damages or $1,000, whichever is greater.” Several large banks that have been accused of discriminatory loan practices challenge the federal statute.
If the court finds that Congress had the power to enact the statute, the court most likely will find that the power arose from:
A The Contract Clause.
B The Thirteenth Amendment.
C The Fourteenth Amendment.
D The Commerce Clause.

Answer 71

B The Thirteenth Amendment.

Question 72

The state of Feldman, claiming violation of various federal environmental laws, files a lawsuit against the Feldman Valley Authority, a federal agency, challenging the construction of a dam in Feldman by the Authority. While the suit is pending, Congress passes a statute changing the standards regarding dam construction. The new statute specifically refers to the pending case and provides that compliance with the newly enacted standards will satisfy all applicable statutory and regulatory requirements.
Which of the following most accurately describes the provision referring specifically to the pending case?
A Constitutional, because Congress may change the legal standards under which a pending case shall be judged.
B Constitutional, because Congress may instruct a trial court to make specific findings of fact or conclusions of law.
C Unconstitutional, because Congress may not invade the province of the judiciary.
D Unconstitutional, because the provision is an ex post facto law.

Answer 72

A Constitutional, because Congress may change the legal standards under which a pending case shall be judged.

Question 73

The Commonwealth of Feldman provides by statute, “No person may be awarded any state contract without agreeing to employ only persons who are both citizens of the Commonwealth and citizens of the United States in performance of the contract.” The state supreme court declares the statute to be unconstitutional on the grounds that it violates the Privileges and Immunities Clause of the Fourteenth Amendment to the United States Constitution and it violates the Equal Protection Clause of the Constitution of the Commonwealth of Feldman. If the Commonweath seeks review in the United States Supreme Court, which of the following is the most accurate?
A The United States Supreme Court may review the decision by certiorari only.
B The United States Supreme Court may review the decision by appeal only.
C The United States Supreme Court may review the decision by either appeal or by certiorari.
D The United States Supreme Court may not properly review that decision.

Answer 73

D The United States Supreme Court may not properly review that decision.

Question 74

Ollie works in the White House, and pursuant to illegal orders from the National Security Advisor, sells arms to Iran and then uses the money to provide military support to guerrillas in Central America. Sam causes the House Armed Services Committee to issue a subpoena for Ollie to testify. Ollie shows up but refuses to provide testimony, invoking his privilege against self-incrimination.
A Ollie need not testify because the House Armed Services Committee is not a judicial body.
B Ollie need not testify because of his privilege against self-incrimination.
C Ollie must testify even if his testimony would incriminate him if he has obtained transactional immunity regarding the subject of his testimony.
D Ollie must testify despite his privilege against self-incrimination whether or not he has received immunity because the House Armed Services Committee is not a judicial body.

Answer 74

D Ollie must testify despite his privilege against self-incrimination whether or not he has received immunity because the House Armed Services Committee is not a judicial body.

Question 75

Suppose South Dakota also refused to sell cement to Saul because he does not live in the state. Saul was born and raised in South Dakota but moved to Wyoming a few years ago to attend college. During the summers he operates his own small construction business. When Saul moved to Wyoming his plan was to attend college there and then move to a warmer climate such as Florida.
Can Saul claim that South Dakota‟s refusal to sell him cement violated Article IV, Section 2?
A Yes, because he now lives in Wyoming.
B Yes, because South Dakota cannot invoke the market participant exception in a challenge under Article IV, Section 2.
C No, because Saul is not presently a citizen of any state.
D No, because Saul, once a South Dakota resident has not established his domicile in Wyoming.

Answer 75

D No, because Saul, once a South Dakota resident has not established his domicile in Wyoming.

Question 76

The state of South Dakota operates its own cement plant. The state has a policy favoring local buyers of cement over out-of-state buyers during periods of cement shortage. Under this policy, the state refused to sell cement to Reeves, Inc., a Wyoming corporation, on the ground that Reeves was an out-of-state entity.
43 Can Reeves challenge South Dakota‟s policy under the Article IV Privileges and Immunities Clause?
A Yes, because South Dakota is discriminating against out-of-staters with respect to the fundamental right to do business (i.e., buy cement) in the state.
B Yes, because South Dakota‟s obvious intent is protectionist.
C No, because Reeves is a corporation not protected by the Article IV Privileges and Immunities Clause.
D No, because Reeves is not a citizen of South Dakota.

Answer 76

C No, because Reeves is a corporation not protected by the Article IV Privileges and Immunities Clause.

Question 77

Suppose South Dakota also refused to sell cement to Saul because he does not live in the state. Saul was born and raised in South Dakota but moved to Wyoming a few years ago to attend college. During the summers he operates his own small construction business. When Saul moved to Wyoming his plan was to attend college there and then move to a warmer climate such as Florida.
Can Saul claim that South Dakota‟s refusal to sell him cement violated Article IV, Section 2?
A Yes, because he now lives in Wyoming.
B Yes, because South Dakota cannot invoke the market participant exception in a challenge under Article IV, Section 2.
C No, because Saul is not presently a citizen of any state.
D No, because Saul, once a South Dakota resident has not established his domicile in Wyoming.

Answer 77

D No, because Saul, once a South Dakota resident has not established his domicile in Wyoming.

Question 78

Suppose Congress enacts a uniform product liability statute to govern recovery by private parties of damages for personal injury or property loss resulting from product defects. The Act preempts and replaces state tort law with uniform national liability standards. Suppose, further, that the Act contains no provisions addressing the jurisdiction of the federal courts to hear cases or controversies arising under the Act.
A The federal district courts will have jurisdiction to hear cases or controversies arising under the Act, pursuant to 28 U.S.C. § 1331.
B The state courts will have jurisdiction to hear cases or controversies arising under the Act under various state jurisdictional statutes.
C The Supreme Court may decline to hear challenges to the statute’s constitutionality within its discretion.
D All of the above.

Answer 78

D All of the above.

Question 79

2 Driving without a license is a misdemeanor in the state of Nirvana. Wells Fargo, a resident of Nirvana, delivers mail on an urban route in Easton, the largest city in Nirvana, for the United States Postal Service, an instrumentality of the United States Government. He does not have a valid driver‟s license. If Wells Fargo continues to drive the mail truck as part of his postal service duties, may he be punished by the state for driving without a license?
A Yes, unless Wells Fargo is charged for driving on state and local roads outside of federal enclaves such as national parks and military bases.

B Yes, whether or not Wells Fargo is charged for driving without a license on state and local roads outside of federal enclaves such as national parks and military bases.

C No, because Nirvana has no authority to regulate the employment practices of a federal instrumentality.

D No, but Nirvana may tax Wells Fargo for driving without a license.

Answer 79

C No, because Nirvana has no authority to regulate the employment practices of a federal instrumentality.

Question 80

The Federal Alien Registration Act (FAR) requires all aliens over the age of fourteen residing within the United States to register with the federal government. FAR also provides a comprehensive plan describing the terms and conditions under which aliens may enter and remain in this country. Among other things, FAR imposes rigid requirements, regarding health, education, integrity, character, and length of residence. Finally, FAR was drafted in part to comply with provisions of treaties to which the United States is a party. There is no provision of FAR that expressly preempts state law. The Alien and Registration Act of Nirvana (ARAN) does not conflict with any specific provision in FAR. ARAN does, however, impose additional reporting and registration requirements on aliens residing in Nirvana.
A ARAN is not preempted because there is no provision of FAR that expressly preempts state law.
B ARAN is not preempted because ARAN does not conflict with any specific provision in FAR.
C ARAN is preempted because the federal scheme is pervasive, providing detailed regulations applicable to resident aliens.
D ARAN is preempted because aliens may only be regulated by the United States are not subject to regulation by the state.

Answer 80

D ARAN is preempted because aliens may only be regulated by the United States are not subject to regulation by the state.

Question 81

California imposes an ad valorem property tax on shipping containers that are owned by shipping companies that are present in the state on “tax day.” California charges the tax for containers owned by a Japanese shipping company in a Port of Los Angeles dock on “tax day.” The tax is apportioned based on the number of days of the year that the containers are used in the state. The same containers are subject to an unapportioned property tax in Japan.
A The ad valorem property tax as applied to the Japanese shipping company is valid so long neither a treaty of the United States nor a Congressional statute has enacted legislation preventing imposition of the tax.
B The ad valorem property tax as applied to the Japanese shipping company is valid because California has apportioned its tax in a reasonable manner, even if Japan has not.
C The ad valorem property tax as applied to the Japanese shipping company is invalid because the tax lacks a sufficient nexus (“minimum contacts”) with California.
D The ad valorem property tax as applied to the Japanese shipping company is invalid because it results in multiple taxation of an entity engaged in foreign commerce due to the fact that the company must also pay Japan a property tax based on the full value of the same containers.

Answer 81

D The ad valorem property tax as applied to the Japanese shipping company is invalid because it results in multiple taxation of an entity engaged in foreign commerce due to the fact that the company must also pay Japan a property tax based on the full value of the same containers.

Question 82

A state imposes an annual tax of $36 per axle on all trucks that use the state‟s highways.
A The state tax is valid because the tax is imposed on all trucks that use the state‟s highways, whether they are registered in the state or not.
B The state tax is valid unless the state only prosecutes trucks from out-of-state for nonpayment.
C The state tax is invalid because its practical effect is to discriminate against interstate commerce because trucks operating interstate must pay similar taxes to other states, while purely intrastate trucks pay the tax only once.
D The state tax is invalid but only if the burden on interstate commerce outweighs the legitimate state interest in maintaining its roads.

Answer 82

C The state tax is invalid because its practical effect is to discriminate against interstate commerce because trucks operating interstate must pay similar taxes to other states, while purely intrastate trucks pay the tax only once.

Question 83

Jim, a small brewer with his only offices and facility in Florida, sells beer over the Internet to purchasers throughout the United States. Alabama imposes a sales tax on all purchases of beer by consumers placing order from within the state of Alabama, where the products are received by residents of the state in Alabama. An Alabama court orders Jim, who has no other connection with the state except for the Internet beer sales, to collect the Alabama state tax on its behalf. Jim refuses. Alabama sues Jim in a federal district court in Alabama, invoking the court‟s diversity jurisdiction. Jim appears to defend the suit and immediately files a motion to dismiss the case under Rule 12(b)(6).
A Jim does not have to pay the tax because there are insufficient “minimum contacts” between Jim and Alabama under the Due Process Clause of the Fourteenth Amendment..
B Jim does not have to pay the tax because the seller lacks a sufficient nexus with Alabama for the state to impose on the seller a duty to collect use taxes for sales made to residents of the state under the Dormant Commerce Clause.
C Jim must pay the tax because he has waived his objection to personal jurisdiction by appearing and defending the case on the merits.
D Jim just pay the tax because he waived his objection to personal jurisdiction by making the Rule 12(b)(6) motion without joining his Rule 12(b)(2) personal jurisdiction objection.

Answer 83

B Jim does not have to pay the tax because the seller lacks a sufficient nexus with Alabama for the state to impose on the seller a duty to collect use taxes for sales made to residents of the state under the Dormant Commerce Clause.

Question 84

Hawaii imposes a tax on all sales of liquor made within the state, including sales to out- of-state customers. Liquor distilled within the state is exempt from the tax if made from produce grown in the state.
A The tax is invalid as applied to sales to out-of-state customers because the sale has an insufficient nexus to sustain the tax under the Dormant Commerce Clause.
B The tax is invalid even though there is a sufficient nexus because the tax scheme discriminates against out-of-state distillers.
C The tax is valid because there is a sufficient nexus to sustain the tax on sales completed “within” the state under both the Due Process and Dormant Commerce Clauses.
D The tax is valid so long as the burden on interstate commerce is outweighed by the legitimate state interest to encourage a local liquor industry.

Answer 84

B The tax is invalid even though there is a sufficient nexus because the tax scheme discriminates against out-of-state distillers.

Question 85

Montana imposes a severance tax on coal mined in the state. The tax is 30% of the value of the coal “severed,” or removed, from the ground. Most of the funds raised by the tax are placed in a trust fund for future expenditures since the revenues far exceed current budgetary needs. About 90% of Montana‟s coal is shipped out of state. The tax is imposed equally upon Montanans and out-of-staters, even though many more out-of- staters felt its incidence because most of the coal is sold to out-of-state utilities where the costs of fuel are passed through through to the out-of-state users of the electricity.
A The tax is invalid under the Dormant Commerce Clause because there is an insufficient nexus between the out-of-state electricity consumers who bear the incidence of the tax and Montana.
B The tax is invalid because the tax discriminates against interstate commerce.
C The tax is invalid because the 30% tax is not reasonably related to the state services provided the coal mines.
D The tax is valid because the method of measurement of the tax – the value of the coal severed– is reasonably related to the degree of activity of the coal operator in the state, that is, the tons of coal severed.

Answer 85

D The tax is valid because the method of measurement of the tax – the value of the coal severed– is reasonably related to the degree of activity of the coal operator in the state, that is, the tons of coal severed.

Question 86

Laura has worked as a lawyer for the National Labor Relations Board (NLRB) since 1985. In 1995 she learned that throughout this period, that women‟s restrooms at the NLRB facility where she works were under secret observation by supervisors using one- way mirrors. In 1991, Congress adopted the Federal Employees Privacy Act (FEPA) which requires all federal facilities to respect the privacy rights of employees. Though FEPA does not specify that restroom surveillance falls within the scope of the Act, in 1993 the U.S. Court of Appeals for the D.C. Circuit concluded that FEPA prohibits such activity. In 1995 Laura sued three NLRB supervisors, alleging that they had violated her privacy rights under the Constitution and under FEPA. She sought an injunction against further surveillance of the women‟s restrooms, and damages. The trial court found that the defendants violated Laura‟s privacy rights under the Constitution and under FEPA.
A Laura may not obtain a judgment against the supervisors because of the doctrine of sovereign immunity.
B Laura may not obtain a judgment against the supervisors because they are absolutely immune from suit with respect to activities undertaken within the scope of their governmental employment.
C Laura may not obtain a judgment against the supervisors regarding the period before 1991..
D Laura may obtain the injunction against future surveillance but may not be able to obtain damages for the period before 1993.

Answer 86

D Laura may obtain the injunction against future surveillance but may not be able to obtain damages for the period before 1993.

Question 87

President Buchanan, a bachelor, fell in love with Monique, a White House intern. Overtaken by a passionate fantasy, the President decided that he simply had to bring her some flowers at the White House after a late night meeting with the Congressional leadership on Capitol Hill. He instructs the Secret Service to park the White House limousine and personally opens an unlocked door at “Minnie‟s Flower Shop” at 1400 Pennsylvania Ave., taking three dozen long-stem roses and leaving his credit card information at the unoccupied cash register. The D.C. police observe the incident. An indictment is brought against President Buchanan for petty theft.
A President Buchanan is not subject to prosecution because of the doctrine of sovereign immunity.
B President Buchanan is not subject to prosecution because the President of the United States is absolutely immune from suit for acts taken within the „outer perimeter‟ of his official responsibility.
C President Buchanan is not subject to prosecution if the President reasonably did not know that his entry through the unlocked flower shop door was illegal.
D President Buchanan is subject to prosecution because the President enjoys no immunity from criminal actions taken while in office.

Answer 87

D President Buchanan is subject to prosecution because the President enjoys no immunity from criminal actions taken while in office.

Question 88

11 Muhammad was fired from his job at the University of California after the university discovered that he was a member of a radical Islamic sect. Muhammad had been working on a project funded heavily by the federal government. In its contract with the federal government, the university agreed that no one posing a security risk would be allowed to work on the project. Muhammad sues the university in federal court under Title VII and under 42 U.S.C. § 1983, alleging that the university violated his First Amendment right of freedom of religion. He seeks damages of $250,000.
A Muhammad‟s suit under Title VII is barred by the Eleventh Amendment.
B Muhammad suit is barred because neither the state nor a state entity is a “person” who can be sued under § 1983.
C Both A & B.
D Neither A nor B.

Answer 88

C Both A & B.