Constitutional Law Flashcards

Question

n order to trigger intermediate scrutiny in an equal protection case, the plaintiff must show that ...

Answer 1

...there was a discriminatory motive to the challenged action. While the creation of the charter schools appears to be neutral with regard to gender, the statement that they were created in order to lower the ratio of males in the classroom indicates that there was a discriminatory intent behind their creation.

Answer 2

Discrimination against citizens or residents in regard to an essential economic right or liberty triggers Article IV Privileges and Immunities Clause analysis, whereas general economic discrimination against a business or entity is more often viewed using a Commerce Clause analysis. i.e. The fisherman is being denied the right to pursue employment as a sea cucumber harvester because he is a nonresident of State A.

Answer 3

A bill of attainder is a legislative act that inflicts punishment without a judicial trial upon named individuals, or an easily ascertainable group, for past conduct. The state statute here retroactively imposes criminal penalties on easily ascertainable members of a group (Libertarians). As such, the statute is an unconstitutional bill of attainder. The state statute here retroactively imposes criminal penalties on easily ascertainable members of a group (Libertarians).

Answer 4

...members of the U.S. Congress "shall not be questioned in any other place" for "any speech or debate in either house" [U.S. Const. Art. I, Sec. 6]. In other words, the senator's statements on the floor of the Senate are privileged, so the suit will not succeed.

Answer 5

The U.S. Congress has authority to enact legislation to eliminate interferences with equal protection rights guaranteed by the Fourteenth Amendment. **The Enabling Clause of the Fourteenth Amendment authorizes Congress to enact laws to enforce constitutionally guaranteed civil rights.** While Congress cannot prohibit private conduct infringing Fourteenth Amendment equal protection and due process rights, it can prohibit state action and private action conducted in concert with state officials that rises to the level of state action.

Answer 6

...state cannot deny unemployment benefits to a person whose religious faith requires her not to work on her Sabbath [Sherbert v. Verner, 374 U.S. 398 (1963)]. This would infringe on the employee's free exercise right. The court hearing the employee's case may only look into the **sincerity of her beliefs, not the truthfulness of the beliefs.** As long as the employee's beliefs are sincere, she qualifies for unemployment benefits because she did have cause to refuse to work. Any interest the state may have in withholding benefits is **_outweighed_** by the infringement on the employee's constitutional right.

Answer 7

(1) the taxpayer is challenging the expenditure of money by Congress under its taxing and spending power, and (2) the expenditure allegedly violates the Establishment Clause i. e. the taxpayer's suit alleges an unconstitutional governmental preference of one religion over another.

Answer 8

(1) where state civil proceedings have commenced, and (2) where civil contempt hearings have begun.

Answer 9

The Supreme Court has ruled that a claim that a state has redrawn electoral districts to benefit one political party is a political question and, therefore, is non-justiciable. This is because there are no manageable judicial standards for deciding when a political party has been unfairly advantaged when electoral districts are redrawn.

Answer 10

Where a state court's decision is based upon a federal interpretation of a similar federal law, adequate and independent state grounds will not apply, and the Supreme Court may review.

Answer 11

Where a state court clearly states that a state law violates other state law or a provision of the state constitution, that decision will be an adequate and independent state ground **(regardless of whether the opinion also decides that the state law violates a federal law as well).**

Answer 12

he Supreme Court has held that racial discrimination in private businesses has a significant impact on interstate commerce, and thus Congress has the power to regulate this conduct under the Commerce Clause.

Answer 13

...the power to establish military courts and tribunals.

Answer 14

...raise revenue (the objective test) or that it was intended to raise revenue (the subjective test).

Answer 15

...the regulation is discriminatory or imposes an undue burden. As long as the enacted regulation can be rationally construed as a regulation of the channels or facilities of interstate commerce or activities that may have a national economic effect in the aggregate, the regulation will be upheld as constitutional. Congress has broad authority to regulate interstate commerce under the Commerce Clause [U.S. Const. art. I, Sec. 8]. Any enacted regulation that can be rationally construed as a regulation of the channels or facilities of interstate commerce or activities that may have a national economic effect in the aggregate will be upheld as constitutional.

Answer 16

SC invalidated an Arkansas statute requiring teachers to file an affidavit listing "every organization to which they have belonged or regularly contributed within the preceding five years" as overbroad. Similarly, SC invalidated a Florida statute requiring public employees to swear, "I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party" as vague and ambiguous. On the other hand, an oath that public employees will "support the Constitution of the United States and will oppose the overthrow of the government of the United States by force, violence, or by any illegal or unconstitutional means" was held valid.

Answer 17

...a significant suspension for disciplinary reasons (e.g., 10-day duration) cannot be imposed without at least a minimum form of hearing before the suspension is imposed. However, a student is not entitled to a trial-type hearing when his dismissal or suspension is with just cause.

Answer 18

(D) T he statute is constitutionally suspect. Action having the purpose and effect of altering the legal rights, duties, and relations of persons, including executive branch officials, must be subjected to the possibility of presidential veto. [Immigration & Naturalization Service v. Chadha (1983)] Although the President (or his predecessor) had the opportunity to veto the statute, the passage of a Senate committee decision that shortens the time that the President may use the troops would have the purpose and effect of altering the rights and duties of the President, which accrue to him by virtue of his rather extensive military powers, and would not be subject to a presidential veto. For this reason the statutory provision may be an unconstitutional legislative veto of executive action.

Answer 19

Article IV, Section 3 of the Constitution gives Congress the power to dispose of all property belonging to the federal government. _There are no express limits placed on this power, and a disposal has never been invalidated on the ground that it places a competitor of the purchaser at a disadvantage._ i.e. selling US Navy vessels The federal government may exercise its property powers to acquire control of free-roaming animals on public land. The federal government does not, however, have inherent authority over or ownership of all “free-roaming wildlife.” A state may, in turn, assert some rights over animals within its borders. That power must, nevertheless, give way in the face of a valid exercise of federal power.

Answer 20

..equal protection guarantees are applicable through the Fifth Amendment Due Process Clause.

Answer 21

...the taxing and spending power, making an allocation of funds available to each state that adopts the uniform law.

Answer 22

order of adoption; i.e., the last in time prevails.

Answer 23

The Constitution makes the President the commander in chief of the armed forces, but it gives Congress the power to declare war and raise an army and navy.

Answer 24

the power to legislate created by Article I, Section 8 of the Constitution.

Answer 25

Congress may regulate, under the Commerce Clause, anything that has a substantial economic effect upon interstate commerce. The rates that banks charge for interest certainly affect interstate commerce or may simply constitute commerce in its broad sense. In either case, the regulation is clearly within Congress’s commerce power.

Answer 26

may not Such persons are “officers of the United States” and must be appointed by the President with senatorial confirmation unless Congress has vested their appointment in the President alone, in federal courts, or in heads of departments. i.e., selection of two members of the commission by a committee of the House of Representatives would violate the Appointments Clause because the commission has investigative and administrative powers.

Answer 27

The Supreme Court has interpreted the constitutional power of the federal courts to hear “cases and controversies” to mean that federal courts may not render advisory opinions. i.e. Congress has enacted a law providing that all disagreements between the United States and a state over federal grant-in-aid funds shall be settled by the filing of a suit in the federal district court in the affected state. The law further provides: “The judgment of the federal court shall be transmitted to the head of the federal agency dispensing such funds, who, if satisfied that the judgment is fair and lawful, shall execute the judgment according to its terms.” Under the law here, the district court’s decision is not binding on an agency dispensing funds, _because the agency head is given discretion to decide whether the court’s judgment is fair._ Therefore, the judgment is merely advisory and so is not within the jurisdiction of the federal courts.

Answer 28

(D) Reverse the decision and remand the case to be decided on the independent state grounds only. The Supreme Court had jurisdiction to hear the case, because it has jurisdiction to hear appeals from a state’s highest court concerning the constitutionality of a state statute, the state court’s decision was not based on independent state grounds (a federal court will not hear a case that can be based on adequate and independent state grounds; rather, it would dismiss the case or remand it to the state for clarification); the decision was based on federal case law interpreting an identical federal provision. Thus, jurisdiction was proper and the Court could reverse the state court decision and hold that a 50-day delay does not violate the federal Constitution. However, the case should be remanded so that the state may decide whether the delay was too long under state law, since a state is free to provide its citizens with more civil protection than is required by the federal Constitution.

Answer 29

The federal court should dismiss the action because there is no case or controversy. The federal courts will not issue advisory opinions and so will not hear collusive actions. The fear is that if interested parties are not on both sides of an issue, the court will not have an opportunity to fairly address all of the sides to each issue. Here, there is no interested party opposing the pregnant woman, and so the federal court should dismiss.

Answer 30

The Supreme Court has original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. Congress may neither restrict nor enlarge the Supreme Court’s original jurisdiction. In all other cases, such as maritime disputes, the Supreme Court has only appellate jurisdiction, which Congress has extensive power to regulate and limit.

Answer 31

...it turned on federal grounds. If it finds adequate and independent state grounds for the decision, it will refuse jurisdiction. i.e. the facts state that the state decision was based on a provision of the state constitution. The fact that the state provision is similar to the federal Equal Protection Clause is irrelevant to determining whether the decision here was based on state law, since the state court did not base its decision on interpretation of the federal provision, but rather interpreted the state provision.

Answer 32

Someone seeking a declaration that a statute is unconstitutional must demonstrate that she has engaged (or will engage) in specific conduct, and that the challenged statute poses a real and immediate danger to her interests. The court will not determine the constitutionality of a statute when the statute has not been enforced and there is no immediate threat that it will be enforced. Thus, if the state statute is not likely to be enforced, it is not a substantial threat to the parents and so they will be unable to demonstrate any real and immediate harm (or threat thereof) to their interest. i.e. The parents’ child is nine months old and the statute cannot be violated before the child turns age three. Therefore, this case is not ripe, and this choice gives the state a chance to defeat the parents’ argument.

Answer 33

The court should grant the legislature’s motion because the Eleventh Amendment generally prohibits a federal court from hearing a private party’s claim against its own or another state government. This jurisdictional bar includes actions against a state government for injunctive or declaratory relief where the state itself, rather than state officials, is named as a party. Here, the citizens’ group is seeking an injunction against the state legislature itself rather than a state official. Thus, the action would be barred by the Eleventh Amendment.

Answer 34

* Equal protection claims are made against the federal government pursuant to the Fifth Amendment’s Due Process Clause. The Supreme Court has held that this provision implicitly includes a requirement for equal protection. * Both constitutional provisions referring to privileges and immunities apply to state government conduct and are never used against the federal government. The Fourteenth Amendment provides that no state shall deny any citizen the privileges or immunities of national citizenship. Article IV provides that no state shall deny citizens of other states the privileges and immunities it accords its own citizens.

Answer 35

ARTICLE IV—PRIVILEGES OF STATE CITIZENSHIP The Interstate Privileges and Immunities Clause prohibits discrimination by a state against nonresidents. Note: Corporations and aliens are not protected by this clause. (In contrast, corporations and aliens are protected by the Equal Protection and Due Process Clauses of the Fourteenth Amendment, as well as the Dormant Commerce Clause. 1. Only “Fundamental Rights” Protected The Interstate Privileges and Immunities Clause of Article IV prohibits discrimination by a state against nonresidents of the state when the discrimination concerns “fundamental rights”—i.e., rights relating to important commercial activities (such as pursuit of a livelihood) or civil liberties. However, the Clause applies only if the discrimination is intentionally protectionist in nature. 2. Substantial Justification Exception The state law may be valid if the state has a substantial justification for the different treatment. In effect, the state must show that nonresidents either cause or are part of the problem that the state is attempting to solve and that there are no less restrictive means to solve the problem. 3. Note—Relationship to Commerce Clause Although the Article IV Privileges and Immunities Clause and the Dormant Commerce Clause may apply different standards and produce different results, they tend to mutually reinforce each other. Consequently, they both have to be considered in analyzing bar exam questions FOURTEENTH AMENDMENT—PRIVILEGES OF NATIONAL CITIZENSHIP States may not deny their citizens the privileges or immunities of national citizenship (e.g., the right to petition Congress for redress of grievances, the right to vote for federal officers, and the right to interstate travel). Corporations are not protected by this Clause.

Answer 36

....the law is retroactive.

Answer 37

The trial judge will most likely deny the motion to dismiss the indictment. The Fifth Amendment right to be free of double jeopardy for the same offense applies to subsequent criminal actions, but not to civil actions or impeachment proceedings, which are distinct from criminal proceedings. _Article I, Section 3 of the Constitution specifically states that a conviction by impeachment does not prevent the party convicted from being subject to indictment, trial, judgment, and punishment according to the law._

Answer 38

Is there government action?

Answer 39

indigents Even as applied to nonindigent candidates, an unreasonably high filing fee that is not tailored to promote a substantial or overriding state interest might be held invalid. However, even a reasonable and otherwise valid fee would have to be waived for an indigent candidate unable to pay the fee.

Answer 40

The Equal Protection Clause of the Fourteenth Amendment prohibits state dilution of the right to vote by malapportionment of electoral districts. This rule applies to electoral districts for local governmental bodies as well as for the state legislature. When a local government establishes voting districts for the election of representatives, it must establish districts that do not have a significant variance in the number of persons in each district. i.e., the large town districts have twice as many persons as the small town districts, creating an unconstitutional dilution of the large town citizens’ right to vote.

Answer 41

states must give full faith and credit to the judgment of another state if the judgment is ## Footnote **final,** **on the merits,** **and rendered by a court with jurisdiction.**

Answer 42

As a direct tax on the federal government, the sales tax is invalid unless Congress has consented to such a tax. The Court has indicated that while the states may not directly tax or regulate the federal government, they may indirectly do so by adopting taxes or regulations on persons dealing with the federal government, as long as the tax or regulation does not unduly burden the federal government. i.e. state will win a suit when it imposes tax on an owner of a restaurant located in a national park

Answer 43

A state can sue another state to protect its natural resources for the benefit of its own citizens. Under Article III, the Supreme Court has original and exclusive jurisdiction over controversies between two states.

Answer 44

i.e. The director, as an agent of the federal government, was carrying out a duly authorized program of the Department of Agriculture by conducting sales of surplus government food at a federally owned warehouse. To sustain the power of the town to prosecute the director for not having a retail food sale license would give the town overriding authority over the selection of personnel to administer a federal program, as well as over the means by which this program is to be implemented. Thus, the licensing requirement would substantially interfere with the proper functioning of this federal program by directly interfering with a federal employee in the carrying out of his orders.

Answer 45

Yes. The Commerce Clause of Article I, Section 8 vests in Congress broad powers to regulate any activity, local or interstate, which either in itself or in combination with other activities has a substantial economic effect upon, or effect on movement in, interstate commerce. Under this approach, Congress clearly has the power to regulate wages and hours of those employed by private employers. This power has been held applicable to state and local governments; Congress can therefore require state or local governments to follow the provisions of federal legislation requiring a state or private employer to pay overtime wages to its employees.

Answer 46

The court should rule that the federal statute preempts the state law. Under the Supremacy Clause, a valid federal regulation supersedes any state action that conflicts with it, as is the case here.

Answer 47

The strongest argument is that the minimum wage law applies to both private sector and state employees. Generally, the Tenth Amendment provides that powers not delegated to the federal government are reserved to the states. **Under the Tenth Amendment, the court will usually uphold federal legislation that applies both to the private sector and to state governments,** **but will generally not uphold attempts by Congress to regulate the states as states**. Here, the federal minimum wage law applies to all private and government employers. Thus, it will be upheld.

Answer 48

Application of the statute would violate the Supremacy Clause. **_Because the state statute conflicts with the terms of the federal contract,_** the federal contract must take precedence, pursuant to the Supremacy Clause and principles of federal immunity from state regulation.

Answer 49

The ordinance is probably unconstitutional because it violates free speech rights under the First Amendment. **The Supreme Court has held that a charitable appeal for funds involves a variety of speech interests protected by the First Amendment.** *In one case, an ordinance that prohibited door-to-door solicitation by organizations that did not use at least 75% of their receipts for charitable purposes was struck down by the Court.* The present ordinance would probably run afoul of the same rule, because in effect it prohibits all charitable solicitation absent relatively burdensome compliance with its registration provisions. The ordinance is also vulnerable because it limits the right of solicitation to those who belong to “a recognized charitable organization.”

Answer 50

**_Substantially overbroad or vague statutes regulating First Amendment rights are void on their face,_** and persons may not be prosecuted for their violation even if their conduct might otherwise be subject to valid regulation. **Conversely, statutes that reasonably regulate the time, place, and manner of speech in public forums may be unconstitutional if applied in situations where the First Amendment activity is unreasonably infringed.** Here, the statute is a valid time, place, and manner restriction because it is content-neutral, it is narrowly tailored to serve an important government interest, and it leaves open alternative channels of communication. It is not too vague when read as a whole, because pedestrian traffic is “sufficiently heavy” when the foot traffic spills over into public streets because of the obstruction. However, it is being applied to circumstances that do not provide any reasonable basis for regulation of the speech.

Answer 51

serves a substantial government interest, directly advances that interest, and is narrowly tailored to achieve that interest. i.e. The consumption of alcohol is a valid activity and the ordinance here does not address deceptive advertising. While the city may argue that discouraging drinking is a substantial government interest, it might have a difficult time proving that the ordinance here advances that interest. More importantly, given that the ordinance amounts to a total ban on advertising outside of stores selling liquor, the city would have a difficult time arguing that the ordinance is narrowly tailored.

Answer 52

``` The Supreme Court has ruled that the grant of a franchise is not sufficient to create state action. [Jackson v. Metropolitan Edison (1974)] Thus, there is no basis for a First Amendment claim against the bus company. ```

Answer 53

Oaths similar to this membership oath have been struck down as overbroad. The state has a compelling interest only in preventing knowing membership _with the specific intent to further unlawful aims._ Persons cannot be denied a license because of mere membership in a particular group, and the state statute here addresses mere membership.

Answer 54

limit contributions to groups that lobby for or against matters before the legislature, because the Supreme Court has found that such a law does not serve a sufficiently important interest to outweigh the restraints that it puts on the First Amendment freedoms of speech and association.

Answer 55

If the law regulates “core political speech,” rather than the process surrounding elections, strict scrutiny is applied (i.e., the law must be narrowly tailored to achieve a compelling interest). The Supreme Court has held that a state law prohibiting campaigning on election day is invalid as applied to a newspaper editorial urging voters to vote a certain way, because the right to comment on political issues is an essential element of free speech. The state statute at issue here is similar to the law that was held invalid by the Court; thus, its enforcement should be enjoined on free speech grounds.

Answer 56

(A) The strongest argument against the tax is that it burdens interstate commerce. **The Commerce Clause of the Constitution gives Congress very broad power to authorize or forbid state taxation that affects interstate commerce.** Unless approved by Congress, state taxes that discriminate against interstate commerce are invalid. The special tax here does not pass muster because it directly discriminates against out-of-state competition. Thus, the tax violates the Commerce Clause and (A) is correct. (C) is incorrect because the Fourteenth Amendment clause protecting the privileges and immunities of national citizenship does not apply here. **The clause protects only those rights attributable to being a United States citizen, e.g., the right to petition Congress.** The clause is inapplicable here.

Answer 57

in the President, the courts, or the heads of departments. **Enforcement is an executive act;** therefore, Congress cannot appoint its own members to the commission to exercise enforcement powers.

Answer 58

...is an inherent privilege necessary to protect the confidentiality of presidential communications. Under this privilege, presidential documents and conversations are presumptively privileged, but this privilege must yield to a demonstrated need for such materials as evidence **in a criminal case in which they are relevant and otherwise admissible.** [United States v. Nixon (1974)] **Although the Supreme Court has not expressly decided that the privilege must also yield to a demonstrated need for evidence in a pending legislative proceeding**, such an extension of Nixon is likely.

Answer 59

Burglar alarm companies use instrumentalities of interstate commerce such as phone lines and have a cumulative effect on interstate commerce even though some may only do business locally. Hence, their activities can be regulated by Congress. Also Congress has the right to prohibit completely the transportation of “harmful” substances in the channels of commerce. Congress could also otherwise regulate the manufacture and use of harmful drugs as part of its regulation of commerce.

Answer 60

...spend for the general welfare.

Answer 61

His contempt citation will be dismissed if he can show that the questions do not relate to any matter concerning which the Senate may legislate. **Congress’s power to investigate is limited to matters on which it can legislate.** Therefore, if the Surgeon General can demonstrate that the questions concerned matters upon which Congress could not legislate (not an enumerated power under Article I, Section 8), then this contempt citation must be dismissed.

Answer 62

the Necessary and Proper Clause only broadens congressional power authorized under some other provision; it does not itself create the power to act.

Answer 63

The section also provides that Congress may vest the appointment of inferior officers in the President alone, in the courts of law, or in the heads of departments. Under separation of powers principles, however, Congress may not vest in itself any broader appointment powers than what is provided for by the Constitution. Where Congress has not vested the appointment power in courts of law or the heads of departments, it is not permitted to restrict the candidates that the President may nominate for appointment. Thus, the Senate’s attempt here to exert some control over the President’s choice of lower-level diplomatic representatives is an unconstitutional violation of the separation of powers.

Answer 64

(D) **The cities can be prosecuted because state or local government action that conflicts with valid federal laws is invalid under the Supremacy Clause.** The federal law here could be found valid as an exercise of the commerce power (Congress can regulate any activity that either in itself or in combination with other activities has a substantial economic effect on interstate commerce) _or under the admiralty power (Congress can regulate all navigable waterways)._ The action of the municipalities directly conflicts with the directives of the federal law and can therefore be stopped. (B) is incorrect because the fact that the copper paint may be as effective as the special compound does not change the result. The action by the municipalities can be prohibited under the Supremacy Clause.

Answer 65

(D) The best argument against enforcement of the tax is that it violates the Commerce Clause. _**If Congress has not adopted laws regarding a subject, local governments are free to tax or regulate local aspects of the subject area as long as the tax or regulation does not discriminate against interstate commerce *or* unduly burden it.**_ Here, the tax does not discriminate against interstate commerce, since it does not single out interstate commerce for taxation in order to benefit the local economy. However, it could be argued that the tax unduly burdens interstate commerce. **A local tax will be held to unduly burden interstate commerce if the locality’s need for the revenue does not outweigh the burden on interstate commerce.** The Supreme Court will consider whether there is a substantial nexus between the activity or property taxed and the taxing state, whether the tax is fairly apportioned, and whether there is a fair relationship between the tax and the benefit the taxed party receives from the state. Here, there is little nexus between the manufacturer and the town. The facts indicate that out-of-state manufacturers’ machines are used in the town, but do not indicate whether the manufacturers conduct any selling activity in the town. Similarly, nothing indicates that there is a relationship between the tax and any benefit that the manufacturers derive from the town. Thus, the tax would probably be unconstitutional under the Commerce Clause. (C) is not a good argument because the Privileges and Immunities Clause of Article IV prohibits states from discriminating against out-of-state residents ***_when a fundamental right is involved_***, and the tax here does not differentiate between residents and nonresidents.

Answer 66

...Congress. i.e. A state that adopts legislation requiring private vendors to favor United States products over foreign products may be acting outside the scope of its powers.

Answer 67

(A) The licensing requirement is constitutional. **The state may “within the proper purpose of the exercise of its police powers” require licensing of anyone who deals with the public in general,** and the Supreme Court has been particularly liberal when the state is attempting legislation that is remedial in effect to cure a social evil that exists within the state. (D) is wrong because there is no indication that the state is treating nonresidents differently than those residing in the state. (Note also that the Interstate Privileges and Immunities Clause does not protect corporations.)

Answer 68

(i) does not discriminate against out-of-state competition to benefit local economic interests; i.e. state statute is applied evenhandedly (i.e., it does not merely regulate the activities of out-of-state lobster fishers while exempting in-state fishers from those same regulations). and (ii) is not unduly burdensome (i.e., the incidental burden on interstate commerce does not outweigh the legitimate local benefits produced by the regulation).

Answer 69

(A) The employee’s best defense is intergovernmental immunity. ***_State and local governments cannot tax or regulate the activities of the federal government. This principle is often termed “intergovernmental immunity.”_*** The arrest and prosecution of a federal employee who was on the job _violates this principle, which is based on the supremacy of the federal government and federal law._

Answer 70

(C) The armed forces recruiting center is least likely to be required to comply with the new state law. A state has no power to regulate activities of the federal government **unless Congress consents to the regulation.** Accordingly, agents and instrumentalities of the federal government, such as the armed forces recruiting center, are immune from state regulations relating to performance of their federal functions.

Answer 71

(A) The state may impose a tax on the fiberoptic line. **A state tax levied *_directly_* against the property or operation of the federal government without the consent of Congress is invalid.**_*However, nondiscriminatory, indirect taxes on the federal government or its property are permissible if they do not unreasonably burden the federal government.*_ Because this tax is not levied directly against the government, but rather against the provider of a service that the government is obtaining, and is levied on all communications lines in the state, the tax is valid. The fact that the economic burden of the tax will ultimately be borne by the government under the “cost plus” contract does not invalidate the tax. (B) is wrong because the Tenth Amendment provides that powers not delegated to the United States, nor prohibited to the states, are reserved to the states. This limits Congress’s power to regulate the states but does not serve as an independent grant of power to the states. Both the federal government and the state government have the power to tax, but the federal law is supreme in this area. (C) is wrong because _not every state tax that burdens the federal government is invalid. A nondiscriminatory tax on a service provided to the federal government by a private entity does not appear to be an unreasonable burden_ on the operation of the federal government.

Answer 72

(C) The least helpful argument is that the statute setting the price caps provides that doctors shall have standing to challenge them. Standing is a jurisprudential doctrine designed to limit the cases federal courts will hear to those brought by parties with a true interest in the litigation. Standing requires a party to have a concrete stake in the outcome of the litigation. **While Congress can, by statute, create new rights, injury to which may be sufficient for standing, Congress may not simply confer standing.** Thus, an argument simply that the statute confers standing on the doctors is not very helpful. (A) is incorrect because one of the requirements to establish standing is redressability. An argument that a ruling in a party’s favor will eliminate the party’s injury is the essence of redressability. (B) is incorrect because a party has standing only if he can show that he has suffered an injury in fact. The injury does not have to be great—but it must be some concrete and particularized injury that will affect him in an individual way, and not just the generalized harm we all suffer from the government’s or a private party’s actions. An argument that the doctors’ profits will be reduced by an average of 4% is a sufficiently concrete injury to establish standing. (D) is incorrect because a party has standing only if there is a **_causal connection_** between the injury and the conduct of which he complains. The fact that 80% of all doctors charged more than the price caps allow for the specified procedures subject to the caps shows a causal link between the statute and the doctors’ reduction in income. Thus, (D) would help the doctors establish standing.

Answer 73

(C) The court should hold against the paramedic because ***_the Supreme Court has permitted Congress to remove the states’ Eleventh Amendment immunity from suit only when it acts to enforce the Fourteenth Amendment._*** The Eleventh Amendment generally prohibits a federal court from hearing private parties’ claims against the government, including claims for damages such as the paramedic’s claim here. While Congress’s power to prevent discrimination under the Fourteenth Amendment has enabled it to abrogate state immunity, _it has no such power under the Commerce Clause._ [See Seminole Tribe of Florida v. Florida (1996)] Hence, the court should dismiss the action as barred by the Eleventh Amendment, and (A) is therefore incorrect. (D) is incorrect because Congress does have power under certain circumstances to remove the states’ Eleventh Amendment immunity. _**Under the power given to Congress in the enabling clause of the Fourteenth Amendment (and perhaps the Thirteenth and Fifteenth Amendments), it could pass a*ntidiscrimination legislation* that permits a state to be sued in federal court.**_

Answer 74

(A) The federal court should not hear the case because it is not yet ripe for review. A federal court will not hear a case unless there exists a “case and controversy.” This has been interpreted to mean, among other things, that a plaintiff generally is not entitled to review of his claim unless **he has been harmed or there is an immediate threat of harm.** This is to prevent the federal courts from hearing unnecessary actions. There is no immediate threat of harm to the union here **_because the law does not take effect for another two years_**. Before that happens, Congress might change the law or repeal it altogether, or the school board may decide to keep the old contract system after all. T

Answer 75

(C) The Senator will not succeed because she lacks standing to challenge the statute. **_The Supreme Court has held that members of Congress lack standing to challenge a law authorizing the President to exercise a line item veto_** (such as the statute here), reasoning that the injury is not concrete and personal, but rather is institutional in that it is shared by all members of Congress. [Raines v. Byrd (1997)] _(A) is incorrect even though it is a true statement. The Supreme Court has ruled that the President has no power to exercise a line item veto of just part of a bill because it violates the Presentation Clause of the United States Constitution; the President must either approve or reject a bill in toto._***However, (A) is not the best choice here because the Senator is not a proper person to bring the challenge.***

Answer 76

**....affecting ambassadors, other public ministers, and consuls, and** **in which a state is a party.** In (A), the state is not really seeking to advance or protect any interest of its own. Rather, the state is attempting to _act in parens patriae_ (i.e., to act as a representative of its citizens, thereby asserting their interests). Thus, the state is not an actual party in this case in the sense that the Supreme Court has traditionally required to justify exercise of original jurisdiction. (B) would be a proper case for institution under the Supreme Court’s original jurisdiction because it involves an attempt by a state to protect its own economic interest rather than to assert the interests of its citizens in a representative capacity. Similarly, (C) sets forth a situation in which a state is attempting to defend its asserted right to render decisions affecting admissions policies relative to its own state universities. Thus, in (C) the state is an actual party to the case. Finally, (D) describes an attempt by the federal government to prevent state construction of a bridge (presumably pursuant to the admiralty power). Clearly, this case involves an alleged grievance that will be directly committed by a state. Therefore, the state is an actual party.

Answer 77

(A) The federal court may grant a declaratory judgment that the statute is unconstitutional. **_A federal court has the authority to issue a final judgment declaring the rights and liabilities of parties (i.e., a declaratory judgment) only if there is an actual controversy._** A complainant must show that he has engaged (or wishes to engage) in specific conduct and that the challenged governmental action poses a real and immediate danger to his interests. Here, the school administrators are planning to present a program of sex education and they are presented with an immediate danger of criminal prosecution from the district attorney. This threat of prosecution presents an immediate threat of interference with the administrators’ First Amendment rights; i.e., as is commonly stated in the First Amendment context, their rights have been “chilled.” Thus, there is an actual dispute such as would authorize a court to issue a declaratory judgment that the state criminal statute (under which a prosecution is genuinely threatened) is unconstitutional, either on its face or as applied. (C) is incorrect because the commencement of a state criminal prosecution actually makes it less likely that a court will grant an injunction or declaratory relief. **Generally, a federal court will not enjoin pending state criminal proceedings because of principles of equity, comity, and federalism.**Thus, commencement of a state criminal prosecution would have the opposite effect of that described in (C).

Answer 78

Had the legislation already been passed in its present form, the Court could have rendered a declaratory judgment even if the state had not yet attempted to enforce the law, because the “controversy” would be genuine.

Answer 79

(B) The federal court will hear the student’s case if the student argues that the prosecutor was merely trying to harass him. _The federal courts generally will abstain from enjoining pending state criminal proceedings, such as the one here, even if they have jurisdiction over the case._ _For purposes of this rule, a case is deemed to be pending as soon as it is filed._ *Thus, the federal court would ordinarily not hear the student’s claim here until after the state prosecution has ended.* **However, there is an exception to the general rule—a federal court will hear an action to enjoin a pending state court prosecution if it is being conducted in bad faith; e.g., merely to harass the defendant.** Thus, (B) is correct. (A) is incorrect because the **_abstention rule_** does not distinguish between claims that ordinances are invalid on their face and claims that they are invalid as applied.

Answer 80

... a compelling justification. Mere need for revenue probably is not a sufficiently compelling interest.

Answer 81

The noncommunicative impact of speech-related conduct in a public forum can be regulated to further an important government interest independent of the speech aspects of the conduct as long as the incidental restriction on the ability to communicate that message is narrowly tailored to further the interest in question, so that alternative channels for communicating the message are available. i.e. The prevention of litter, as a means of maintaining public facilities in usable condition and protecting property values, is an important enough government interest to allow some type of regulation. The ban on littering is narrowly tailored to accomplish its purpose, unlike, for example, a ban on distributing leaflets that may end up on the ground. The regulation probably would not have precluded the defendant even from dumping the barrel if she had picked up the trash after her speech was over.

Answer 82

(B) The loyalty oath is valid if it merely requires the candidate to affirm that she will oppose the violent overthrow of the government. The government may require employees and other public officers to take a loyalty oath. Such an oath must not be overbroad, so as to prohibit constitutionally protected activities, nor can it be vague. An oath has been upheld that requires state employees _to oppose_ the overthrow of the government by force, violence, or by an illegal or unconstitutional method. [Cole v. Richardson (1972)] This type of oath (which is virtually the same as that set forth in (B)) was deemed to be similar to an oath requiring the taker simply to commit herself to live by the constitutional processes of our system. (A) is incorrect because it has been held that a loyalty oath that disavows _advocating_ the violent overthrow of the government as an abstract doctrine is invalid. _The First Amendment prohibits statutes regulating advocacy that are not limited to advocacy of action._ [Communist Party v. Whitcomb (1974)] The oath in (A) appears to be overbroad in that it regulates mere advocacy of violent overthrow of the government, rather than regulating only advocacy of action. Therefore, the oath is invalid. (C) is incorrect because only knowing membership in an organization with specific intent to further unlawful aims is unprotected by the First Amendment. [Keyishian v. Board of Regents (1967)] The oath in (C) would in effect punish mere membership in an organization, without showing knowledge of, or a specific intent to further, any unlawful aims of the organization.

Answer 83

(C) The court should rule in favor of the leafletter, because the ordinance is not a valid time, place, and manner restriction on the exercise of First Amendment rights. The First Amendment protects the freedoms of speech and assembly; however, the protection is not absolute. The government is allowed to adopt regulations concerning the time, place, and manner of the exercise of speech and assembly in public forums and designated public forums to facilitate order and to protect other important government interests. To be valid, such a law must: **(i) be content-neutral;** **(ii) be narrowly tailored to serve an important government interest; and** **(iii) leave open alternative channels of communication.** The ordinance here is content-neutral because it prohibits all protesting, educating, and counseling around health care facilities and not just such conduct concerning a particular message. It serves an important government interest— unimpeded access to health care facilities. However, it is not narrowly tailored because it restricts more speech than necessary to ensure access to health care facilities. _In McCullen v. Coakley (2014), the Supreme Court held that a “buffer zone” law prohibiting leafletters from approaching patients within 35 feet of any abortion clinic in the state was too broad a speech restriction when the state could try other measures, such as targeted injunctions._The Court had upheld a state buffer-zone law similar to the one in this fact pattern in Hill v. Colorado (2000). However, the Court evaluates the constitutionality of such laws on a very case-specific basis, and in McCullen the Court indicated that it is more likely to uphold such measures as narrowly tailored if the measures attempt to remedy a specific problem at a particular facility or facilities, rather than impose a blanket speech restriction statewide. (B) is incorrect for the reasons explained above. Reasonable time, place, and manner restrictions on speech in public forums are allowed; however the buffer-zone ordinance here is not narrowly tailored and therefore fails the second prong of time, place, and manner.

Answer 84

(D) The theater owner’s best defense is that the film has proven artistic merit. The First Amendment generally protects the right of freedom of speech, and this freedom includes the right to show movies. Thus, to enjoin the showing of the movie here, the city will have to prove that the speech involved is unprotected speech. Obscenity is the category of unprotected speech most relevant here. The Court has defined obscenity as a depiction of sexual conduct that, **taken as a whole, by the average person, using contemporary community standards:** (i) appeals to the **_p_**rurient **_i_**nterest in **_s_**ex; (ii) portrays sex in a **_p_**atently **_o_**ffensive way; and (iii) using a rational, reasonable person standard, _does not have serious literary, artistic, political, or scientific value._ If the theater owner shows that the film has proven artistic merit, it cannot be held to be obscene because the third element of the above definition will have failed. (A) is not as good an argument as (D) because _the Supreme Court has held that while a statewide community standard may be used, it is not mandatory—a local community standard is sufficient to evaluate whether the film is “patently offensive.”_ Thus, the town’s community standards would be sufficient. (B) is not as good an argument as (D) because it is not sufficient that there is some redeeming social value; it must have _serious_ redeeming value, as indicated above. For example, it would not be sufficient that an otherwise obscene movie included short tips on the importance of brushing teeth. (C) is not a good argument. The Establishment Clause forbids the government from adopting a law or program that establishes religion. It is inapplicable here because the town is not trying to enforce a particular set of religious views; rather, it is trying to prohibit obscenity. The Supreme Court has held that the government has a legitimate interest in prohibiting obscenity, and the fact that this happens to coincide with the beliefs of a particular religious group does not render such bans void.

Answer 85

(B) The graduate is correct as to the promise to respect the flag, but incorrect as to the other two promises. The Supreme Court has upheld oaths requiring government employees to oppose the violent overthrow of the government and to support the Constitution; hence, (A) and (C) are incorrect. _However, it has held that government employees cannot be required to show respect for the flag, as a person might refuse to salute the flag on religious grounds._ Thus, (B) is correct and (D) is incorrect.

Answer 86

(C) The court will likely find the statute constitutional if limited to true threats. **The Constitution does not protect true threats, defined as speech meant to communicate an intent to place a person in fear of bodily harm.** (D) is incorrect because the law here does not appear to be a **fighting words statute, e.g., personally abusive epithets inherently likely to incite an immediate response.**

Answer 87

(C) The statute will probably be found to violate the First Amendment because it is overbroad. _The state can adopt a specific definition of obscenity applying to materials sold to minors, even though the material might not be obscene in terms of an adult audience._ However, government may not prohibit the sale or distribution of material to adults merely because it is inappropriate for children. Here, there is no indication that the state has attempted less restrictive means of keeping minors from the objectionable video games, such as requiring arcade operators to put these games in a limited access area and monitor their use. While an outright ban on these games may be the most certain means of denying minors access to them, the denial of adult access to them indicates that the statute will probably be found unconstitutional. (A) is incorrect even though it is a true statement. As indicated above, a statute designed to protect minors must be narrowly drawn to avoid a First Amendment violation. (B) is incorrect because the fact that the statute precisely defines the content that is prohibited indicates only that it probably is not unconstitutionally vague; it does not affect its overbreadth problem. (D) is incorrect because, as indicated above, _restrictions on materials available to minors do not necessarily have to satisfy the constitutional test for obscenity._ In addition, (D) misstates the test: _the element of serious social value is determined by a national standard, rather than community standards._

Answer 88

(C) The reporter and the paper should prevail. The Constitution prohibits Congress or the states from abridging freedom of the press. While this freedom is no greater than the freedom of speech granted to all citizens, the information printed by the paper here is protected. The media may not be punished for publishing a true fact once it is lawfully obtained from the public records or is otherwise released to the public. It does not matter that the release was inadvertent. (D) is incorrect because it is too broad; freedom of the press is not absolute. For example, the press would not be allowed to reprint copyrighted material regardless of whether it was legally obtained.

Answer 89

(B) The court will probably decide in favor of the government on the merits. Programs of aid to religiously affiliated grade schools and high schools are subject to the same three-part test as are other laws under the Establishment Clause: The program must (i) have a **_s_**ecular purpose, (ii) have a primary **_e_**ffect that neither advances nor inhibits religion, and (iii) not produce e**_x_**cessive government entanglement with religion. With respect to the first prong of the test, most of the time such programs (including this one) will have a secular purpose—to aid education. With respect to the second prong, the program may be deemed to have a primary effect that advances religion if it results in governmental indoctrination of religion or defines its recipients by reference to religion. Here, the statute establishes a religiously neutral program that funds a supplemental service for the schools, and offers the instruction to all disadvantaged students regardless of whether they choose to attend public or private schools. [See Agostini v. Felton (1997)—government program providing remedial education services to all disadvantaged children at their schools, including children at parochial schools, held not to violate the Establishment Clause] Thus, (C) is incorrect. (D) is incorrect because the courts will not presume that the instruction provided by this program will be influenced by religion. Furthermore, with respect to the “excessive entanglement” prong of the test, there is no indication that the program requires detailed monitoring of the government employees to prevent them from incorporating religion in their instruction—the equipment and experiments that they use in the private schools are the same as they use in the public schools. _(A) is incorrect because the citizens’ group has standing to challenge the expenditure on behalf of its members, who have a right to sue based on their status as federal taxpayers._ **_The one recognized exception to the rule that people do not have standing as taxpayers to challenge the way tax dollars are spent by the federal government is if the expenditure was enacted under Congress’s taxing and spending power and allegedly exceeds the specific limitation on that power found in the Establishment Clause._** That exception applies here because the citizens’ group is alleging that the federal appropriation is an unconstitutional attempt to provide government funds to religiously affiliated schools.

Answer 90

(B) The plaintiff will likely prevail because the policy violates the Establishment Clause. The First Amendment prohibits laws respecting the establishment of religion. Governmental action that does not contain a sect preference will pass muster under the Establishment Clause if it has a secular purpose, its primary effect neither advances nor inhibits religion, and it does not require excessive government entanglement with religion. **The church’s action will be considered to be state action here because of the significant involvement between the church and the city.** _(The city is leasing the building to the church, the church shares profits with the city, and the church submitted its lease forms to the city for approval.)_ Requiring a lessee to affirm a belief in God appears to have no secular purpose. Moreover, its primary effect probably is to advance religion. Therefore, the church’s action will be found to have violated the Establishment Clause.

Answer 91

(A) If the attorney is fired, she has a right to a hearing to determine whether her First Amendment rights were violated by her dismissal. _**Under the Due Process Clause of the Fifth Amendment, a person has a liberty interest in the exercise of specific rights provided by the Constitution, *including freedom of speech.***_ **If a government employer seeks to fire an employee for speechrelated conduct when the speech involved _a matter of public concern but is not made pursuant to her official duties_, the courts must carefully balance the employee’s rights as a citizen to comment on a matter of public concern against the government’s interest as an employer in the efficient performance of public service.** Under the Court’s expansive interpretation of what is a public issue in this context [see Rankin v. McPherson (1987)], the attorney’s statement would probably qualify. At the very least, she can make a sufficient showing that her termination violates her free speech rights to be entitled to a hearing on the issue under procedural due process principles. [See Givhan v. Western Line Consolidated School District (1979)] (B) is wrong because the attorney does not appear to have a property interest in her job. _**A public employee who is subject to removal *only for “cause”* has a property interest in her job and generally must be given notice of the charges against her that are to be the basis for her job termination, and a pre-termination opportunity to respond to those charges.**_ Here, however, the attorney did not have a property interest in her job; she could have been dismissed for no reason at all. _She was not covered by the labor contract between the agency and its clerical workers,_ and there appears to be no other basis for her to claim an entitlement to continued employment. (C) is wrong because the attorney is entitled to a hearing as long as she can raise a prima facie claim that her speech, which was regarding an important health issue and the perception of her agency, was on a public issue and therefore protected by the First Amendment. (D) is wrong for two reasons. As discussed above, the attorney does not have a property interest in her job. _Also, due process does not necessarily entitle her to a pre-termination evidentiary hearing; a post-termination evidentiary hearing is probably sufficient._ [See Cleveland Board of Education v. Loudermill (1985)]

Answer 92

(B) The employee will likely prevail because the procedures taken to terminate his employment did not satisfy due process. _Under the Due Process Clause of the Fourteenth Amendment, a public employee who is subject to removal only for “cause” under a statute, ordinance, or personnel document has a property interest in continued employment that cannot be taken away without due process of law._ **The Court has held that such an employee generally must be given notice of the charges and a _pretermination_ opportunity to respond to those charges.** **The employee must also be given a _subsequent_ evidentiary hearing regarding the termination (with reinstatement if the employee prevails). [Cleveland Board of Education v. Loudermill (1985)]** Here, the employee was notified of the charges but was not given any opportunity to respond to the charges until after his termination. Hence, his termination did not satisfy due process requirements. (A) is incorrect because the employee does not have to be given a full, formal _hearing before_ his termination, as long as he is given oral or written notice of the charges, an explanation of the employer’s evidence, and an opportunity to tell his side of the story. (D) is incorrect because, as discussed above, the procedures followed here did not satisfy due process standards. T_he Supreme Court has held that an employee can be suspended from his job without a prior hearing if the government has a significant reason for removing the employee from the job and providing him with only a post-termination hearing._ [Gilbert v. Homar (1997)—campus police officer suspended after being arrested and charged with felony drug offense] Here, however, there is no substantial reason why the employee could not have been given the opportunity to respond to the charges prior to dismissal.

Answer 93

(A) The court should require the woman to show that the legislation is not rationally related to any legitimate state interest. **The Supreme Court has held that the right of privacy includes the right of a woman to have an abortion under certain circumstances without undue interference from the government. However, neither federal nor state government is required to grant medical benefit payments for abortions, even if it grants benefits for childbirth services.** _The Court has held that a state’s failure to provide funding for a woman’s abortion decision does not constitute interference with her constitutional right to make that decision; hence, such legislation is valid unless the plaintiff can show that it is not rationally related to a legitimate state interest._ [See Maher v. Roe (1977)] (C) is wrong because, as discussed above, legislation excluding abortion-related expenses from government funding has been held not to constitute interference with a woman’s constitutional right to choose to have an abortion. Therefore, the undue burden test does not apply.

Answer 94

(D) The residency requirement is permissible because the water board is elected at large. _**The Equal Protection Clause prohibits state dilution of the right to vote, so that when a governmental body establishes voting districts for the election of representatives, *the number of persons in each district may not vary significantly.* This is known as the principle of “one person, one vote.”**_ **This principle applies to almost every election where a person is being elected to perform normal governmental functions** (e.g., an election for trustees for a junior college district). **However, the principle of one person, one vote generally is inapplicable where there is an at-large system of election *(except where the system is adopted for discriminatory purposes).*** _Here, the water board members are elected by all of the qualified voters in the city in an at-large system (rather than having the voters of each individual district select one board member apiece), and no discriminatory intent is evident._ Thus, the statutory provision requiring board members to reside in each of the five districts does not result in an imbalance or a dilution of the voting rights of the citizens of the city. Consequently, (A) is incorrect, and (D) presents an accurate statement of the constitutionality of the residency requirement. (Note that the answer might be different under federal statute because the city would have to prove a valid, nondiscriminatory purpose.) (C) is incorrect even though it reaches the correct result. While the Supreme Court has exempted special purpose water storage districts from the one person, one vote requirement, the basis of the decision was the specialized nature of the entity. The constitutional requirements apply not only to legislators, but also to elected administrative and executive officials. (B) is incorrect because, even assuming that the residency requirement violates the candidates’ equal protection rights, the resident would not have standing to raise the issue. Generally, a claimant must assert his own constitutional rights and cannot assert the rights of third parties.

Answer 95

(B) The court is likely to rule that the statute is constitutional. A bona fide residence requirement, such as this statute, that is not based on a suspect classification and does not limit the exercise of a fundamental right, is judged by the rational basis test. Thus, (A) is incorrect. The statute provides free education for all children who are bona fide residents of the state. Thus, it uniformly furthers the state interest in assuring that services provided for its residents are enjoyed only by residents. **(D) is incorrect because this statute does not impair the right of interstate travel. Any person is free to move to the state and establish residence there. This statute does not deter people from moving into the state.**

Answer 96

(A) The farmer is not likely to prevail because the rational relationship test applies. **Although the right to vote is a fundamental right, laws prohibiting _nonresidents_ from voting are generally valid, provided that they meet the minimal scrutiny, or “rational basis,” standard.** Under this standard, a law will be upheld as long as it is rationally related to a legitimate government interest. Limiting the voters in a city’s mayoral election to residents of the city serves the interests of efficiency and prevents persons with little personal interest in the city from voting. Thus, a court would likely uphold the ordinance. Answer (B) is incorrect because it sets out the strict scrutiny standard. While voting is a fundamental right and governmental action affecting fundamental rights generally is reviewed under strict scrutiny, that is not the case with laws limiting voting to residents.

Answer 97

(D) The ordinance is constitutional under the rational basis standard. Because the ordinance is not related to the exercise of a fundamental right or based on a suspect trait, it need only rationally relate to some legitimate governmental interest. Under the Equal Protection Clause, which is implicated because the ordinance treats some city employees differently from others, a governmental classification must be necessary to promote a compelling state interest when it relates to who may exercise a fundamental right or when it is based on a suspect trait (e.g., race or national origin). If a quasi-suspect classification (e.g., gender or legitimacy) is involved, the classification will be upheld if it is substantially related to an important government interest. In all other cases, the classification is valid if there is any conceivable basis on which it might relate to any legitimate governmental interest. This “rational basis” test is used for all classifications that relate only to matters of economics or social welfare. The right of police officers and firefighters to hold second jobs is not a fundamental right that will trigger strict scrutiny. In addition, the ordinance is not based on a suspect or quasi-suspect classification. Therefore, the validity of the ordinance is judged according to the “rational basis” test. A party attacking a classification under this test bears the difficult burden of demonstrating to the court that the classification does not have a rational relationship to a legitimate interest of government. The ordinance is intended to and does in fact promote the legitimate governmental interests of public safety and social welfare—it increases the likelihood that there will be sufficient numbers of police and firefighters to deal with emergencies. Thus, the ordinance is valid. (B) is incorrect. Although the ordinance treats police officers and firefighters differently from other city employees, this treatment, as discussed above, is rationally related to legitimate governmental interests.

Answer 98

(D) The best argument for getting the law invalidated is that it is not rationally related to a legitimate state interest. The lawyer would argue that the statute violates equal protection because it singles out one class of citizens for special treatment. Because neither a fundamental right nor a suspect nor quasi-suspect class is involved here, the case would be decided under the rational basis standard. For a law to be held invalid under the rational basis standard, the plaintiff must show that the law is not rationally related to a legitimate state interest. Toward this end, the lawyer might argue that the law will really cost more money than it will save, perhaps because the resulting number of injuries due to the absence of studded tires will more than offset the money saved in road repair. (This argument will likely fail, however, because courts give legislatures broad discretion in making such determinations, and the statute does appear to be rational. Nevertheless, this is the lawyer’s best argument.) (A) is incorrect because the Privileges and Immunities Clause of Article IV applies only to discrimination by a state against nonresidents, and here the lawyer is a resident of the state that enacted the legislation. _(B) is incorrect because nothing in the facts indicates that the right to travel is involved—at least not the constitutionally protected right to travel. *The right to travel involves interstate travel, and here, the legislation concerns only an intrastate travel issue.*_ (C) is incorrect because there is no unreasonable restraint on interstate commerce. If Congress has not allowed or prohibited state regulation in the area, a nondiscriminatory state regulation will be upheld only if its burden on commerce does not outweigh a legitimate local interest. Here, because no other state allows studded snow tires, the ban does not discriminate against out-of-state vehicles and does not burden commerce. (If other states allowed these snow tires, there might be a viable Commerce Clause issue.)

Answer 99

(B) is correct. **The enactment of laws by Congress requires passage of the law in both houses (bicameralism) and approval of the law by the President (that is, the presentment requirement) or an override of a presidential veto.** Here, Congress passed a law and the President signed it, but Congress sought further control by requiring expenditures to be approved specifically by Congress without presentment to the President. Such a requirement usurps the power of the executive branch to execute laws and places it in the hands of Congress in violation of the doctrine of separation of powers. (A) is incorrect. Under the Spending Clause, Congress certainly has the power to adopt a law specifying where a monument should be placed, and if such a law were passed by Congress and the President signed the law, it would be valid. However, that is not what happened here. Here, the law left it to an agency to select a site. (C) is incorrect for the reasons stated above; requiring subsequent Congressional approval of agency site selection is unconstitutional. (D) is incorrect for the same reason.

Answer 100

(B) is correct. The regulation here involves commercial speech. Commercial speech is protected by the First Amendment, but the Court tests regulation of commercial speech under a special test. **The Court first asks whether the speech is about a lawful activity and is truthful and not misleading.** If these conditions are not satisfied, the speech has no protection. **If they are satisfied, the regulation will be valid only if it** **(1) serves a substantial government interest,** **(2) directly advances that interest, and** **(3) is narrowly tailored to achieve that interest** (that is, there is a reasonable fit between the means chosen and the ends sought). Here, the sale of red meat is allowed and so the producers are looking to advertise about a lawful activity. The regulation bans all commercial advertising. While the regulation serves a substantial government interest (that is, discouraging the consumption of a product linked to cancer), the regulation imposes a complete ban on advertisement. A complete ban will never be found to be narrowly tailored. (A) is incorrect. The government will no doubt be found to have a substantial interest in preventing cancer. (C) is incorrect. As indicated above, commercial speech is protected by the First Amendment. (D) is incorrect. First, it is not enough merely that the interest served is legitimate - it must be substantial. And second, even if a legitimate interest were enough, that is only one prong of the test, and the regulation here would still fail because it is not narrowly tailored.

Answer 101

(B) is correct. **_The Supreme Court will hear a case from a state court only if the case turns on federal grounds._** ***The Court will not hear a case if it finds adequate and independent nonfederal grounds to support the state decision. _A ground is adequate if it is completely dispositive of the case, and it is independent if it does not rely on federal law._*** Here, the state court held that its decision rested _solely_ on interpretation of its own constitution, and the state court decision _completely disposed_ of the matter. Thus, it would be a waste for the Supreme Court to hear the case, because _even if it decided the law was constitutional under the First Amendment, the law would remain unconstitutional under the state constitution._ (A) is incorrect both because it is overbroad (for example, truthful publication of material in violation of another's copyright can be punished) and because the Court will not waste its time on a case where its decision will not change a result because the case rests on adequate and independent nonfederal grounds. (C) is simply not true. The Supremacy Clause does not prevent states from creating rights greater than those conferred by the federal Constitution - the federal Constitution is a floor and not a ceiling. It provides the minimal level of protection. States are free to provide greater protection. (D) is true but irrelevant. The Supreme Court does have appellate jurisdiction to hear cases arising under federal law, **_but the Court does not have to hear every case._** *Under the doctrine of strict necessity,* it will not hear a case like this one, that rests on adequate and independent, nonfederal grounds.

Answer 102

Under our system of federalism, the federal government cannot order state governments to adopt particular laws.

Answer 103

... powers not delegated to the United States nor prohibited to the states are reserved to the states. The Supreme Court has held that the amendment generally prohibits the federal government from regulating states alone. _However, states can be regulated through laws that apply generally._ For example, under Congress's commerce power, the federal government can require state governments to pay employees the federal minimum wage, like any other employer. Moreover, it has been held that under Congress's powers under the Fourteenth and Fifteenth Amendments, the federal government may restrict state activities that the federal government determines would violate civil liberties.

Answer 104

(C) is correct. The court is likely to find the amendment to the employee benefit plan constitutional under the Free Exercise Clause. **The Free Exercise Clause prohibits government from punishing someone (which includes denying a benefit) on the basis of the person's religious belief.** _However, the Supreme Court has held that the prohibition applies only to government conduct that targets conduct specifically because it is religiously motivated;_ *a religiously neutral regulation that incidentally burdens religious conduct is valid, and the government need not include an exemption for religiously motivated instances of the regulated conduct.* Here, the city amended its employee benefit plan to deny death benefits when death resulted from an employee's refusal to accept medical care. Nothing in the facts indicates the change was adopted in order to target the employee's religious beliefs; rather, the change seems to be a religiously neutral law that happened to burden the police officer's religious belief against accepting blood transfusions. Therefore, the amendment is constitutional. (A) is incorrect. Incidental discrimination against religious practices is not prohibited by the Free Exercise Clause. (B) is incorrect. This choice raises a Contract Clause issue while the officer's spouse challenged the benefit plan amendment under the Free Exercise Clause. _Moreover, the Contract Clause merely limits the ability of states to enact laws that retroactively impair contract rights._ Here, nothing indicates the city enacted any law or that the employee had a perpetual right to the death benefit the officer originally had. (D) is incorrect. Its reasoning is wrong - the Free Exercise Clause applies to denial of benefits as well as impositions of penalties.

Answer 105

(C) is correct. **The U.S. Constitution, federal laws, and treaties are the supreme law of the land; state laws that are in conflict with the supreme law are invalid**. Here, a valid treaty **_gives the President the power to nullify state and local laws_** that impede imports between the signatory nations. There is nothing in the Constitution that would prohibit such a law; indeed, the Constitution gives Congress the power to regulate commerce both among the states and with other nations. (A) is incorrect as ***_Congress is free to delegate its authority, and here it has delegated its authority to the President._*** Moreover, if (A) is true and Congress has exclusive authority to specify weights and measures, the state law setting required weights and measures would be invalid anyway. (B) is simply not true. As stated above, ***_the Constitution, federal laws, and treaties are the supreme law of the land. These can certainly give the President authority to invalidate state laws that interfere with federal objectives that are within the powers of Congress, such as objectives under the Commerce Clause._*** (D) is incorrect because it is overbroad. T**he President has no such inherent power. It would be for the *_courts_* to decide if a state law impedes commerce between the United States and another country.**

Answer 106

**The court will find that the requirement of a minimum number of members violates the Establishment Clause of the First Amendment.** The Establishment Clause prohibits any law "respecting an establishment of religion." _While usually a three-part test based on Lemon v. Kurtzman is used to determine whether legislation creates improper government involvement with religion,_ ***the "compelling government interest" test is used if a law or government program discriminates among religions.*** Here, the law differentiates among different religious groups, allowing only those with larger memberships to record presentations. There is no compelling government interest for discriminating among the religious groups in this way; thus the legislation is unconstitutional. (A) is incorrect despite the fact that the federal power to regulate commerce could be interpreted as extending to commerce with outer space should the occasion arise. Nevertheless, the commerce power does not override independent constitutional restrictions (e.g., the Establishment Clause) on the conduct in question here. (B) is an incorrect statement of law. The federal commerce power cannot be used to abrogate freedom of speech or to discriminate in favor of religious groups. An exercise of the commerce power generally is subject to all limitations placed on government by the Constitution, including those of the First Amendment. (D) is incorrect. Regardless of merit, almost all expenditures made by Congress are permissible under its spending power. [U.S. Const. art. I, §8] Rather than limit the power only to spending for accomplishment of other enumerated powers, this provision grants Congress broad power to spend for the "general welfare" (i.e., any public purpose). As long as the expenditure is not conditioned on requiring a recipient to forgo an individual constitutional right, it is within the spending power of Congress.

Answer 107

The best argument against enforcement of the tax is that it violates the Commerce Clause. _If Congress has not adopted laws regarding a subject, local governments are free to tax or regulate local aspects of the subject area as long as the tax or regulation does not discriminate against interstate commerce or unduly burden it._ Here, the tax does not discriminate against interstate commerce, since it does not single out interstate commerce for taxation in order to benefit the local economy. However, it could be argued that the tax unduly burdens interstate commerce. _A local tax will be held to unduly burden interstate commerce if the locality’s need for the revenue does not outweigh the burden on interstate commerce._ **The Supreme Court will consider whether there is a substantial nexus between the activity or property taxed and the taxing state, whether the tax is fairly apportioned, and whether there is a fair relationship between the tax and the benefit the taxed party receives from the state.** Here, there is little nexus between the manufacturer and the town. The facts indicate that out-of-state manufacturers’ machines are used in the town, but do not indicate whether the manufacturers conduct any selling activity in the town. Similarly, nothing indicates that there is a relationship between the tax and any benefit that the manufacturers derive from the town. Thus, the tax would probably be unconstitutional under the Commerce Clause. (A) is not as good an argument as (D) because the Equal Protection Clause prohibits the states from treating similarly situated persons differently without sufficient justification. Where a classification does not involve a suspect or quasi-suspect class or a fundamental right, the classification will be upheld as long as it is rationally related to a legitimate government interest. While the tax here singles out arcade game manufacturers for special tax treatment, no suspect or quasi-suspect class is involved, nor is a fundamental right affected. Thus, the tax will be valid under the Equal Protection Clause because it is rationally related to the legitimate government interest of raising revenue. (B) is not a good argument because substantive due process requires that laws not be arbitrary. When laws do not involve a fundamental right, they will be held valid under the Due Process Clause as long as they are rationally related to a legitimate government interest. As established above, no fundamental right is involved and the tax is rationally related to a legitimate government interest. Thus, under the Due Process Clause the tax may be enforced. (C) is not a good argument because the _Privileges and Immunities Clause of Article IV prohibits states from discriminating against out-of-state residents when a fundamental right is involved_, and the tax here does not differentiate between residents and nonresidents.

Answer 108

Of the choices presented, the only likely basis to strike down the statute is under the Due Process Clause as a violation of substantive due process. ***_Substantive due process tests the reasonableness of a statute_***; **it prohibits arbitrary governmental action.** _Under substantive due process, when government action limits a fundamental right, the government must prove that the action is necessary to promote a compelling interest._ *If a fundamental right is not involved, the challenging party must prove that the act is not rationally related to any legitimate government interest.* The retail sale of diapers is not a fundamental right, and so a challenger must prove that there is no rational basis for the statute. Almost any law can be justified under the rational basis standard. The law need not be the best law for accomplishing the government’s goal. Thus, even if it is true that the disposable diaper ban causes more pollution than it prevents, because the ban is rationally related to reducing the volume of trash in landfills, the challenge is unlikely to succeed. Nevertheless, none of the other choices states a viable ground for invalidating the statute, and so (B) is the best choice. (A) is wrong because equal protection applies where a statute or governmental action treats similar people in a dissimilar manner (i.e., classifies people), and here there is no classification—under the statute no one can sell disposable diapers for use within the state. Thus, an equal protection argument is not applicable. (C) is wrong because _the Impairment of Contracts Clause prohibits only the substantial impairment of existing contracts_ (and there are exceptions even where there is substantial impairment), and nothing in the facts indicates that forbidding the retail sale of disposable diapers would substantially impair any existing contract. (D) is wrong because _the privileges and immunities covered by the Fourteenth Amendment are those attributes peculiar to United States citizenship (e.g., the right to petition Congress for redress or the right to vote for federal officers)._ The statute here does not affect such rights.

Answer 109

The interest given to the son’s children does not violate the Rule Against Perpetuities because the interest will vest, if at all, **within 21 years after the life of the friend.** Pursuant to the Rule Against Perpetuities, no interest in property is valid unless it must vest, if at all, not later than 21 years after one or more lives in being at the creation of the interest. **In the case of a will, the perpetuities period begins to run on the date of the testator’s death,** _and measuring lives used to show the validity of an interest must be in existence at that time._ Here, the interest given to any of the son’s children who are born during the friend’s lifetime and who survive the friend must vest, if at all, on the death of the friend (who is a life in being at the time of the owner’s death). Thus, this interest will vest, if it does vest, within 21 years after the friend’s life, and is therefore not in violation of the Rule Against Perpetuities. \*\*\* The interest of the son’s children is not vested. **_Their interest is a shifting executory interest rather than a remainder because it divests the fee simple estate of the friend and his heirs._** ***_The friend has a fee simple subject to an executory interest_*** *because the estate will remain with his heirs if none of the son’s children are alive when the friend dies.* The friend’s death while the son’s children are alive divests the interest of the friend’s heirs; it is therefore a shifting executory interest rather than a remainder.

Answer 110

The contract arose when the balls were shipped. The general rule is that an offer can be accepted by performance or a promise to perform unless the offer clearly limits the method of acceptance. **_Here, the offer would be the bowling alley owner’s order_**, _because a magazine ad is usually held to be merely solicitation to accept offers rather than an offer_. **Thus, the manufacturer accepted and the contract was formed when it shipped the balls.**

Answer 111

The strongest argument would be that the program has a secular purpose and does not entangle government with religion. ***_The Establishment Clause_*** prohibits the government from taking action respecting the establishment of religion. ***_Where no sect preference is involved, government action will be upheld if it serves a secular purpose, its primary effect neither advances nor inhibits religion, and it does not produce excessive government entanglements with religion._*** (A) is a true statement—it is not unconstitutional to teach religious music in private schools—but the Constitution prohibits government from providing such aid to religious schools. (C) is irrelevant for similar reasons—although private religious schools might fulfill an important educational function, they still will run afoul of the Constitution unless the above three-part test is met. (D) is incorrect because the state is compelled by the Establishment Clause not to provide certain types of aid to religious schools; in such cases, the Free Exercise Clause is not violated so long as the law is general in nature, which is the case here

Answer 112

If the school’s action is valid, it will be because the state statute is the least restrictive means of advancing the state’s compelling interest in ending discrimination by groups using public facilities. _While schools are generally not public forums, they may become a designated public forum by being held open to student groups for meetings_. In that case, the First Amendment may be violated if a college restricts use of its classrooms based on the content of a student group’s speech. ***_To justify content-based regulation of otherwise protected speech, the government must show that the regulation is necessary to achieve a compelling state interest that cannot be satisfied by less restrictive means._*** Similarly, the right to associate for expressive purposes is not absolute. At the very least, the right may be infringed to serve a compelling government interest, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. Here, the state’s interest in not allowing its facilities to be used by groups practicing discrimination of various types is compelling. [See Roberts v. United States Jaycees (1984)] The denial of access to the student group based on the students’ religious principles, while it may be viewed as content-based discrimination, is the most narrowly drawn means of advancing the state’s interest. [See Bob Jones University v. United States (1983)] (A) is incorrect because a school does not violate the Establishment Clause by permitting a religious student group the same after-class access to its facilities that other student groups have. [Good News Club v. Milford Central School (2001)] (C) is incorrect because the actions of administrators of a state college in allowing or denying access to its facilities is clearly state action that brings the Fourteenth Amendment into play. (D) is incorrect. While the right to join together for expressive or political activity, which is protected by the First Amendment, may be less strong for large organizations that engage in both commercial and expressive activity than for smaller and more selective groups, it is still a recognized right. [See Roberts v. United States Jaycees, supra] Furthermore, the student group’s discussion of business activity in this case is tied to its religion. Hence, the association rights of the student group are based on freedom of religion as well as freedom of expression. The state would probably have to show a compelling interest to support a restriction on the group’s association rights.

Answer 113

Obscenity, which is not protected speech under the First Amendment, is defined by the Supreme Court as a description or depiction of sexual conduct that, taken as a whole, **_by the average person, applying contemporary community standards,_** appeals to the prurient interest in sex, portrays sex in a patently offensive way, and—**_using a national reasonable person standard_**—does not have serious literary, artistic, political, or scientific value.

Answer 114

A state generally may not discriminate against aliens absent a compelling state interest, and no compelling interest is served by prohibiting aliens from teaching at a state university. (A) is incorrect. **The Tenth Amendment reserves to the states power not granted to the federal government.** ***_The Constitution vests the power to regulate aliens in Congress, and thus the states do not have power to control aliens under the Tenth Amendment._*** (B) is incorrect because it states the standard that the Supreme Court has applied to primary and secondary school teachers. ***_The Supreme Court has upheld state statutes prohibiting aliens from teaching primary or secondary school on the rationale that teachers at the elementary and high school level have a great deal of influence over the attitudes of young students toward government, the political process, and citizenship._*** It is doubtful that the Court would extend this rationale to university teachers. (C) is incorrect because it states the wrong standard. If state discrimination against aliens relates to participation of aliens in the functioning of state government, the rational basis test applies. Merely teaching political science at a state university is not equivalent to participating in the political process.

Answer 115

(i) the tax **_does not discriminate_** against interstate commerce; (ii) there is a **_substantial nexus_** between the activity taxed and the taxing state; (iii) the tax is **_fairly apportioned_**; and (iv) the tax **_fairly relates_** to services or benefits provided by the state.

Answer 116

The court should find the resolution invalid. **While Congress has broad power to delegate, the separation of powers doctrine forbids Congress from trying to control the exercise of the power delegated in various ways, such as by overturning an executive agency action without bicameralism (i.e., passage by both houses of Congress).** _By enacting the federal law allowing the administrative law judge to enter a final order with regard to aliens, Congress has given up any control it may have had previously in these situations. The resolution by the House here is an unconstitutional legislative veto that violates the separation of powers doctrine._ (A) is incorrect because, while Congress does have plenary power over aliens with regard to _immigration and naturalization_, _here it has given up control over this area by enacting a law allowing an administrative officer appointed by the executive branch to make a final order concerning whether an alien should be deported._ (B) is incorrect because the fact that aliens are not citizens has no bearing on whether the House resolution violated the Constitution. (D) is incorrect because, while resident aliens are entitled to notice and hearing before they can be deported, the student did receive a hearing before the administrative officer. There is no requirement that persons affected by legislative action have the right to be heard by the legislative body taking the action. Thus, the better argument as to why the resolution was invalid is based on separation of powers.

Answer 117

The statute is constitutional as a legitimate exercise of congressional enforcement powers under the Enabling Clause of the Thirteenth Amendment. The Thirteenth Amendment prohibits slavery. ***_The Enabling Clause of the amendment has been held to confer on Congress the authority to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident of slavery._*** Because the statute at issue bans all discrimination against African-Americans in commercial transactions, it necessarily reaches private conduct. Such congressional action is constitutionally permissible pursuant to the Thirteenth Amendment. (B) is incorrect. **Application of the Fourteenth Amendment has been limited to cases involving state action.** [See United States v. Morrison (2000)] The statute here reaches private action, and so the Thirteenth Amendment is the correct source for the law, since that amendment addresses private action. (C) is incorrect because, even if Congress’s power over interstate commerce would not reach every commercial transaction, the statute would be enforceable under the Thirteenth Amendment, as discussed above. (D) is incorrect because it is irrelevant. **While it is true that the commercial transactions here are not among the privileges or immunities of citizenship** (which include rights such as the right to petition Congress for redress and the right to interstate travel), the law can be based on the Commerce Clause or the Thirteenth Amendment, and thus is constitutional.

Answer 118

The best argument for the prosecution is that the Free Exercise Clause does not afford a right to a religious exemption from a neutral law that happens to impose a substantial burden on a religious practice, if the law is otherwise constitutionally applied to persons who engage (or fail to engage) in the particular conduct for nonreligious reasons. Here, the state law interferes with the man’s religious beliefs. However, the statute prohibits any possession of a bald eagle feather without a permit. Thus, the state should argue that the law was enacted to protect eagles and not merely to interfere with the religious beliefs of people such as the man here. (B) is incorrect because it is too broad. Conduct is protected (although the protection is limited). For example, the government cannot punish conduct merely because it is religious (although if the law affects both religious and nonreligious conduct, it is generally valid). [See, e.g., Employment Division v. Smith (1990)] (C) is incorrect because it states the former rule in these cases. In the past, the Court used a balancing test to determine whether a religious exemption had to be granted from a law with a secular purpose that happened to burden religious practices or beliefs. The Court would consider the severity of the burden, the strength of the state’s interest, and the existence of alternative means. Now, however, the Court no longer uses a balancing test in actions involving state laws; the state need not establish a strong interest or a lack of alternative means if the challenged statute is neutral. (D) could be successfully argued, but its chances for success are not as certain as for the argument in (A). **The Establishment Clause prohibits laws respecting the establishment of religion. If a law includes a preference for one religious sect over another, the law will be held invalid unless it is narrowly tailored to promote a compelling interest.** _If there is no sect preference, the law is valid if:_ _(i) it has a secular purpose;_ _(ii) its primary effect neither advances nor inhibits religion; and_ _(iii) it does not produce excessive government entanglement._ Here, no sect preference appears, because nothing indicates that an exception would apply only to members of the man’s religion. It could be argued, however, that the only purpose for an exemption here is to favor religious believers over nonbelievers. If that is the purpose, the exemption would not have a secular purpose and would fail the secular purpose test above. On the other hand, the state could argue that free exercise of religion is also protected, and an exemption protects sincerely held religious beliefs. [See, e.g., Wisconsin v. Yoder (1979)] Thus, the outcome of the argument in (D) is uncertain, and (A) is the state’s most appropriate argument.

Answer 119

The pardon is valid. Article II, Section 2 of the United States Constitution grants the President the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. This pardon power is not subject to control by Congress, and it includes the power to commute a sentence on any conditions the President chooses (as long as the conditions do not offend some other constitutional provision). (B) is incorrect because even if the action of issuing the pardon amounted to the crime of obstruction of justice (a questionable assumption), the pardon itself would not be invalidated. The power to pardon is a constitutional power, superior to laws found in statutes. (C) is incorrect because the pardon power is not so limited. **_Blanket pardons are valid._** (D) is also incorrect because the pardon power is not so limited. _Presidents may pardon offenses that occurred before the President took office._

Answer 120

The strongest argument the professor could make is that the decision was not based on her ability to teach. **_The professor is an at-will employee, and under most circumstances may be discharged “for any reason or no reason at all.”_** Thus, normally, evidence regarding the motives for dismissal is irrelevant. The question here, however, is what the strongest argument is that the professor could make, and (D) creates at least an inference that an impermissible motive might be present (gender, free speech, etc.). (A) is a weaker answer because the professor has no property interest in continued employment; a mere expectation of continued employment is not enough, even when coupled with reliance (her buying a house). There must be a legitimate claim or entitlement—created by a contract or clear policy—that employment can be terminated only for cause. The bases alleged in (B) are arguably irrelevant; the professor’s popularity may or may not have anything to do with her ability, and even if it does, she remains an at-will employee. _(C) might under some circumstances offer an argument, but there could be any number of valid explanations for keeping others and letting a particular professor go, including budget constraints, subject needs, etc._ (D) is, accordingly, the strongest of the possibilities.

Answer 121

The strongest argument is that state provision of textbooks to the segregated private school violates the Equal Protection Clause by giving state support to a racially segregated educational process. This may not be a winning argument but it is clearly the best of the lot. (A) is wrong because it is far too broad. A state may, under many situations, aid a private school through distribution of textbooks. This may be permissible even if the private school is religiously affiliated, as discussed below. (C) and (D) are parts of the test for violation of the Establishment Clause. The Supreme Court has held that a state lending textbooks on secular subjects to all students, including those at religious schools, does not violate the Establishment Clause. Thus, (C) and (D) are incorrect.

Answer 122

The court should affirm the geologist’s conviction. The fine is constitutional under the Property Clause, which gives Congress the power to “make all needful rules and regulations respecting the territory or other property belonging to the United States.” This power permits Congress to acquire and dispose of all kinds of property, and to protect its property with a law such as the one here.

Answer 123

Executive privilege is an inherent privilege necessary to protect the confidentiality of presidential communications. Under this privilege, presidential documents and conversations are presumptively privileged, but this privilege must yield to a demonstrated need for such materials as evidence in a criminal case in which they are relevant and otherwise admissible. [United States v. Nixon (1974)] Although the Supreme Court has not expressly decided that the privilege must also yield to a demonstrated need for evidence in a pending legislative proceeding, such an extension of Nixon is likely, and none of the other alternatives is at all accurate.

Answer 124

The fact that the federal board was similar to the state board but was not given the power to restrict fee increases and impose sanctions in an otherwise comprehensive bill suggests that such provisions in the state law violate the Supremacy Clause. A state law may fail under the Supremacy Clause even if it does not directly conflict with a federal statute or regulation if it interferes with the achievement of a federal objective or the federal regulations occupy the entire field. Where the federal laws are _comprehensive_ or a federal agency is created to oversee the field, preemption will often be found. T_he fact that the health-care legislation was comprehensive but the federal board was not given regulatory or enforcement power suggests that Congress did not want specific restrictions in these areas and may have wanted free-market principles to determine fee increases at the outset._ The state board’s power to impose these restrictions may violate the Supremacy Clause under these circumstances. _(A) is incorrect because the fact that the federal legislation was passed later does not automatically mean that the state legislation has been superseded. In areas of concurrent legislative power, a state regulation will be upheld if it does not conflict with and is not preempted by federal legislation._ **(C) is incorrect because the Contract Clause prevents only substantial impairments of existing contracts by state legislation, and only if the legislation does not serve an important and legitimate public interest or is not a reasonable and narrowly tailored means of promoting that interest.** Here, the law has a prospective effect only, and even if existing contracts between health-care providers and insurers are affected by the legislation, the other requirements for the Contract Clause to apply are not likely to be satisfied. (D) is incorrect because states may regulate local aspects of interstate commerce in the absence of federal regulation as long as the regulation is nondiscriminatory and does not unduly burden interstate commerce, which is a case-by-case balancing test. Here, the legislation appears to be nondiscriminatory and there are insufficient facts to establish that it would constitute an undue burden; hence, (B) presents a stronger argument than (D).

Answer 125

**_... vest appointments of inferior officers only in the President, the courts, or the heads of departments._** Enforcement is an executive act; therefore, Congress cannot appoint members of a commission that exercises enforcement powers. i.e. The safety commission consists of some members appointed by Congress. This commission therefore violates the Appointments Clause of the Constitution because it has enforcement powers, since it can prosecute violations. Legislative power can be delegated even under vague guidelines without creating an unconstitutional delegation.

Answer 126

The man can be fined. Congress has the power to regulate alarm installation companies under the Commerce Clause because the clause permits Congress to regulate any local or interstate activity that, either in itself or in combination with other activities, has an effect on interstate commerce. Burglar alarm companies use instrumentalities of interstate commerce such as phone lines and have a cumulative effect on interstate commerce even though some may only do business locally. Hence, their activities can be regulated by Congress. The delegation to the NABA is valid because Congress has broad discretion to delegate its legislative power; the Supreme Court will uphold almost any delegation of congressional power. Therefore, the man can be fined. (A) is incorrect because it improperly mixes two concepts. Congress does not have the power to legislate for the general welfare—there is no federal police power—but rather Congress has the power to spend for the general welfare. (C) is incorrect because, even assuming that the regulation here interferes with the man’s right to make a living, it would not violate the interstate Privileges and Immunities Clause of Article IV because the clause restricts states, not the federal government. (D) is incorrect. Congress can provide that violation of an agency’s regulations is a criminal offense that can be enforced through the imposition of fines. Furthermore, an agency has the power to impose civil fines and penalties for a violation of its regulations.

Answer 127

The Supreme Court may grant certiorari to review a case from the highest court in a state that can render an opinion on the matter if a state statute's validity is called into question under the federal Constitution. [28 U.S.C. §1257] The Court may decide the federal issues, but cannot rule on the state law issues. (A) is incorrect for several reasons: (i) the attorney general evaluated only the proposal's validity under the state constitution; and (ii) even if her opinion had addressed the proposal's federal constitutional validity, the Supreme Court is not bound by advisory opinions of state attorneys general. (B) is incorrect even though the state supreme court may have had an independent state ground for finding the law constitutional under its state constitution. **The Supreme Court will refuse to hear the case only if the state ground is adequate by itself to support the decision as well as independent, so that the Court's review of the federal ground for the decision would have no effect on the outcome of the case** (such as if the state court had found the law invalid under both the state and federal Constitutions). Here, the Supreme Court's review of the state court opinion on the law's federal constitutional status may have an outcome on the case regardless of the state court's decision on the state constitutional issue; the Court therefore will hear the federal issues involved. (C) is incorrect because 28 U.S.C. section 1257 provides that appellate review of a matter from a state's highest court is to the Supreme Court by petition for a writ of certiorari, rather than to a federal district court.

Answer 128

The tax is constitutional because it represents a proper exercise of the power of Congress to tax and spend for the general welfare. Pursuant to the Constitution, Congress may tax and spend to provide for the general welfare. **A congressional tax measure will be upheld if it bears some reasonable relationship to revenue production or if Congress has the power to regulate the taxed activity.** **_Congress may spend for any public purpose, not merely the accomplishment of other enumerated powers._** The tax at issue here bears a reasonable relationship to revenue production. Also, the purchase and sale of cigarettes in the United States is subject to congressional regulation, as an activity having a substantial economic effect on interstate commerce. Thus, the tax itself is valid. The amendment to the original tax bill is also valid, as a reflection of a congressional determination to use the proceeds of the tax for the promotion and implementation of an antismoking program, presumably in furtherance of public health. This is a public purpose for which Congress can spend pursuant to the General Welfare Clause. **_Although people (and corporations) cannot generally be forced to convey a message with which they disagree, they can be forced to pay taxes that fund messages with which they disagree._** Therefore, (D) is correct. (C) is incorrect because it implies that the amendment is not constitutional. The amendment does not violate the First Amendment because it does not compel speech. It only compels paying taxes, which are then used to fund government speech. Therefore, the constitutionality of the tax does not hinge on the severability of the amendment. (A) is incorrect because there is no “fairness doctrine” under the Constitution; that is, when Congress determines a course of action pursuant to its power to tax and spend for the general welfare, it need not provide equal time for opponents of the action to express their views. (B) is incorrect because the tax in no way abridges the First Amendment rights of the manufacturers. As explained above, while the freedom of speech is very broad and includes the freedom to not speak and to refrain from endorsing views with which one does not agree, it does not invalidate the tax here because the tax does not force the tobacco companies to endorse the stop-smoking clinics or the government’s antismoking stance. Neither does the tax forbid or control the tobacco manufacturers from endorsing a pro-smoking message. The manufacturers’ First Amendment rights are simply not burdened here.

Answer 129

The punishment here is constitutional because it does not violate any constitutional provision. The best answer reflecting this reasoning is (D)—there was no Eighth Amendment violation here—because paddling students as a disciplinary measure has not been found to be cruel and unusual punishment. (A) is incorrect because there is no Establishment Clause violation here. Under the Establishment Clause, if there is no sect preference, government action generally will be upheld if the action serves a secular purpose, its primary effect neither advances nor inhibits religion, and it does not excessively entangle government with religion. There is no sect preference under the school board’s corporal punishment rule here, the rule has the secular purpose of maintaining order in the classroom (the fact that this coincides with the tenets of a local religion does not change that conclusion), its main purpose neither advances nor inhibits religion, and there is no excessive entanglement. (B) is incorrect because there has been no deprivation of procedural due process. The Supreme Court has held that although corporal punishment may involve a liberty interest, no hearing is required prior to inflicting such punishment; the possibility of a common law action in tort is sufficient procedural protection. [Ingraham v. Wright (1977)] (C) is incorrect because it is too broad. The doctrine of parens patriae allows the state to stand in the shoes of a parent, but even a parent may not impose any punishment he sees fit (e.g., a parent may not break a child’s arm as punishment for stealing).

Answer 130

**_Congress’s power to investigate is limited to matters on which it can legislate._** Therefore, if the Surgeon General can demonstrate that the questions concerned matters upon which Congress could not legislate (not an enumerated power under Article I, Section 8), then this contempt citation must be dismissed.

Answer 131

Congress may “regulate” states through the spending power by imposing conditions on the grant of money to state or local governments. Such conditions will not violate the Tenth Amendment merely because Congress lacked the power to directly regulate the activity that is the subject of the spending program if the conditions (i) are clearly stated; (ii) relate to the purpose of the program; and (iii) are not unduly coercive. Here, the condition is clearly stated and appears to be related to a goal of the highway program—safer highway travel.

Answer 132

The appointment of the commissioners was illegal. The Appointment Clause of the Constitution permits Congress to vest appointments of inferior officers only in the President, the courts, or the heads of departments. Enforcement is an executive act; therefore, Congress cannot appoint its own members to the commission to exercise enforcement powers. A duly appointed commission does have the power to make rules and regulations governing the subject matter for which it is appointed. Those rules are not “criminal” statutes in this case. Thus, (A) is wrong. (C) is wrong because Congress may establish new public rights and actions that may be adjudicated by agencies, without juries. (D) is wrong because there is no actionable discrimination.

Answer 133

The employee’s best defense is intergovernmental immunity. ***_State and local governments cannot tax or regulate the activities of the federal government. This principle is often termed “intergovernmental immunity.”_*** The arrest and prosecution of a federal employee who was on the job violates this principle, which is based on the supremacy of the federal government and federal law. (B) is not a bad answer because door-to-door solicitation is protected by the First Amendment. However, at best, (B) would subject the city’s actions to strict scrutiny and allow the city to prevail if it could prove that its action was necessary to achieve a compelling government purpose. In contrast, (A) would automatically invalidate the city’s enforcement of the law against the employee, and so (A) is a better answer. (C) is irrelevant because the Fourteenth Amendment’s restriction on the states has to do with persons, not the federal government, and here there is no claim that the city was discriminating against the employee. The city’s ordinance, as briefly described, does not seem to provide the basis for an equal protection claim. (D) is wrong because nothing in the facts shows any burden on interstate commerce. Moreover, at most such a claim would trigger heightened scrutiny; it would not automatically invalidate the enforcement of the law as would (A).

Answer 134

The strongest argument against validity is based on federalism principles. Under Article II, Section 2 of the Constitution, the President has the power to “grant reprieves and pardon offenses against the United States, except in cases of impeachments.” ***_Thus, the President’s pardon power is limited to violations of federal law. The President has no authority to pardon those convicted of state crimes or held in state custody._*** The President lacks the authority to grant these pardons. Although the President’s ability to negotiate treaties only extends to dealing with other nations, (A) is wrong because the President possesses other powers that would allow him to negotiate such deals. For example, the President’s powers as Commander in Chief and other inherent powers (such as the ability to negotiate executive agreements) would justify this action. (B) is wrong because, under the doctrine of federal supremacy, federal law will govern state law when there is an inconsistency between the federal and the state laws. Therefore, the governor could be required to do an act that is a violation of state law, but a requirement of federal law. ***_(C) is wrong because a bill of attainder is a legislative act that inflicts punishment without a judicial trial on individuals who are designated either by name or in terms of past conduct._*** Here, even if the President’s act were considered “legislative,” it does not inflict punishment.

Answer 135

Yes, strict scrutiny applies. Yes, intermediate scrutiny spplies.

Answer 136

to establish post offices and post roads. This power grants Congress a monopoly over the delivery of mail. No other system for delivering mail—public or private—can be established absent Congress’s consent.

Answer 137

If the attorney is fired, she has a right to a hearing to determine whether her First Amendment rights were violated by her dismissal. Under the Due Process Clause of the Fifth Amendment, a person has a liberty interest in the exercise of specific rights provided by the Constitution, including freedom of speech. If a government employer seeks to fire an employee for speech-related conduct **_when the speech involved a matter of public concern but is not made pursuant to her official duties,_** **the courts must carefully balance the employee’s rights as a citizen to comment on a matter of public concern against the government’s interest as an employer in the efficient performance of public service.** Under the Court’s expansive interpretation of what is a public issue in this context [see Rankin v. McPherson (1987)], the attorney’s statement would probably qualify. At the very least, she can make a sufficient showing that her termination violates her free speech rights to be entitled to a hearing on the issue under procedural due process principles. [See Givhan v. Western Line Consolidated School District (1979)] (B) is wrong because the attorney does not appear to have a property interest in her job. ***_A public employee who is subject to removal only for “cause” has a property interest in her job and generally must be given notice of the charges against her that are to be the basis for her job termination, and a pre-termination opportunity to respond to those charges._*** Here, however, the attorney did not have a property interest in her job; she could have been dismissed for no reason at all. She was not covered by the labor contract between the agency and its clerical workers, and there appears to be no other basis for her to claim an entitlement to continued employment. (C) is wrong because the attorney is entitled to a hearing as long as she can raise a prima facie claim that her speech, which was regarding an important health issue and the perception of her agency, was on a public issue and therefore protected by the First Amendment. (D) is wrong for two reasons. As discussed above, the attorney does not have a property interest in her job. Also, due process does not necessarily entitle her to a pre-termination evidentiary hearing; a post-termination evidentiary hearing is probably sufficient. [See Cleveland Board of Education v. Loudermill (1985)]

Answer 138

Pursuant to Article I of the U.S. Constitution, Congress has the power to regulate commerce "among the several states." Congress may regulate "channels" of interstate commerce (highways, waterways, and air traffic), instrumentalities of interstate commerce (cars, trucks, ships, airplanes, etc.) and activities that "substantially affect" interstate commerce. Under this cumulative effect doctrine, Congress has the power to regulate any activity, **_whether carried on in one state or many,_** which has any appreciable effect (whether direct or indirect) on interstate commerce. Here, the fireworks in question is similar to the wheat in the case of Wickard v. Filburn [317 U.S. 111 (1942)], in which the Supreme Court found that federal commerce power allowed for the regulation of the amounts of wheat that a farmer grew on his own land and intended wholly for his own consumption because many merchants doing the same thing would have a substantial cumulative effect on interstate commerce. As such, the regulation will be upheld.

Answer 139

The doctrine of standing requires that a litigant have a concrete, personal stake in the outcome. The generalized interest of a citizen in requiring his government act constitutionally has never been deemed to be a sufficient basis for conferring standing. Direct, individuated harm--different from the citizenry at large--is required. The case of Lujan v. Defenders of Wildlife [504 U.S. 555 (1992)] held there was no standing because of an inadequate showing of a sufficient likelihood that plaintiffs would be injured in the future by destruction of endangered species abroad. The so-called "injury in fact" standard was mandated by the case and controversy requirement of Article III. As a result, it is beyond the power of Congress to confer standing by statute upon a particular class of persons who would not otherwise satisfy the Article III requirement. In brief, Congress does not have the authority to simply expand federal court jurisdiction and grant standing to "anyone who wishes challenge" the drug enforcement statute. A private citizen would be required to show a direct and personal injury by application of the statute.

Answer 140

a legislative act that inflicts punishment without a judicial trial upon named individuals or an easily ascertainable group for past conduct. i.e. The legislative act in this question named the person to be punished and revoked his license to practice medicine in the state without giving him notice and a hearing. The revocation was unconstitutional, and the group should prevail

Answer 141

The Constitution says that unless the Senate gives advice and consent, the nominee cannot be appointed, but it does not require the Senate to do anything in response to the nomination. The relevant text is the Appointments Clause of Article II, Section 2, which provides: "[The president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…" **This language makes the Senate's consent a prerequisite to presidential appointments, but it does not place any duty on the Senate to act, nor does it describe how it should proceed in its decision-making process.** Even if the word "shall" in the clause is read as mandatory, "shall" refers only to things the President does. **Instead, the Senate's core role in appointments is as a check on the President, which it exercises by not giving consent--a choice it can make simply by not acting.** An executive order is a directive from the President that has much of the same power as a federal law. The U.S. Constitution gives the President authority to create laws, or decide how an existing law should be carried out, through the use of executive orders. Because executive orders do not require congressional approval, the President can set important policy while sidestepping public debate. Executive orders may be used for a broad range of issues, from environmental conservation and protection to prohibiting discrimination and sending troops to other countries. An executive order may be issued for any domestic policy issue, as long as it does not step on the toes of Congress' powers under the Constitution.

Answer 142

Not relevant Whether the state regulation contains a provision resolving potential conflicts between state and federal law is irrelevant to the court's determination of whether the state regulation is preempted by federal law. The Supremacy Clause provides that federal law is the supreme law of the land, and inconsistent state law is preempted if it is expressly prohibited or if Congress has intended the federal law to provide a comprehensive regulatory scheme. Relevant Evidence that the regulation of insecticides is a matter traditionally left to the states is highly relevant to the court's determination of the regulation's constitutionality. If the state regulation does not directly conflict with federal law and Congress has not expressly prohibited the state regulation, the court is more likely to uphold the regulation if the matter has traditionally been one of state or local concern, absent evidence of congressional intent to occupy the field or the need for uniformity. Evidence of the consistency or supplementary nature of the state regulation assists the court in determining whether the state regulation is impliedly preempted and, therefore, is highly relevant. If there is no direct conflict between state and federal law, and if federal law does not expressly prohibit the state law, the court will examine whether a consistent or supplemental state law should be allowed to co-exist with federal law, based on whether the federal law is intended to be comprehensive (i.e., intended to occupy the field) or is necessary for uniformity of regulation. Whether compliance with the state and federal regulations is mutually exclusive. Evidence that the state and federal regulations address the same subject matter and are incompatible indicates to the court that the state regulation is in conflict with federal law and is void under the Supremacy Clause, so it is highly relevant.

Answer 143

Courts apply strict scrutiny to any state regulation that discriminates against exercising the right to vote. Here, the state statute imposes the equivalent of a one-year residency requirement on incoming students to the state university system. There are less restrictive means by which the state could guarantee that only bona fide residents vote in local elections. For example, the state could shorten the residency requirement or ask for additional proof of intent to establish residency. ***_A state may, in some instances, have a compelling interest in denying an entire class of people the right to vote. For example, states may restrict or prohibit participation by aliens in state political processes, and states may deny ex-felons the right to vote. The state may also prohibit individuals who have not reached the age of majority from voting._*** Thus, this answer is incorrect in its blanket statement that the state can never deny the franchise to a particular class of people.

Answer 144

raises revenue in fact or is intended to raise revenue, even if the activity taxed is affected negatively by the tax. i.e. A 23% gas tax will have a substantial negative impact on all areas of transportation, including commercial and personal travel. The only situation in which the court could invalidate the tax provision is where the tax legislation is actually a regulation masquerading as a tax. However, even in this situation, the tax legislation will be upheld as long as revenue is being raised. In the case of the gas tax, revenue is being raised to stabilize the Medicare system. Therefore, the tax is likely to be held constitutional.

Answer 145

In the event of such a tie, the Court typically issues what's known as a percuriam decision. When a 4-4 deadlock does occur, the case is deemed not to have set any sort of precedent. Tradition holds that the Court's per curiam opinion in such ties is usually very, very terse, often consisting of no more than a single sentence: "The judgment is affirmed by an equally divided court."

Answer 146

**regulating the federal government unless the federal government explicitly permits the state regulation or the state regulation is not inconsistent with existing federal policy.** i.e. ***_The U.S. Postal Service is a federal governmental entity. The State B statute requiring mail carriers to obtain a state driver's license to operate postal trucks interferes with postal workers' delivery duties, thereby violating the Supremacy Clause. Indeed, the U.S. Supreme Court has struck down a similar Maryland statute._*** The police power reserved to the states by the Tenth Amendment is subject to limitations, including those imposed by the Supremacy Clause, the Commerce Clause, and the Privileges and Immunities Clause. Thus, State B will not prevail simply on the basis of its Tenth Amendment police power. Thus, this answer is incorrect.

Answer 147

The statute is valid because it is rationally related to interstate commerce. **Regulating the sale of an item made from a California condor clearly affects commerce.** Thus, Congress can act under its broad commerce power. The regulations do not compel surrender of the artifacts, and there is no physical invasion or restraint on them. Neither does the statute prohibit all economic uses of the property (e.g., the artifacts can be displayed in the store, admission can be charged to view them, etc.). Thus, there is no taking of a property right without just compensation. Therefore, Congress’s power to regulate is proper, even though it diminishes the opportunity to make a profit. Thus, (A) is incorrect. (B) is not supported by the facts—there does not appear to be a discriminatory application of the statute. (D) states the right conclusion, but for the wrong reason. The statutory authority here lies in Congress’s broad power to regulate interstate commerce.

Answer 148

a tax applicable only to the press or based on the content of a publication will not be upheld absent a compelling justification (i.e. advertising beer or cigarettes).

Answer 149

**The destination tax will likely be held constitutional under Congress’s taxing power. Congress has the power to lay taxes under Article I, Section 8, and a tax measure will usually be upheld if it bears some reasonable relationship to revenue production or if Congress has the power to regulate the taxed activity.** Despite the protest from the officials of the affected locations, the tax here does appear to be related to revenue production and so will be upheld. (C) is incorrect because it is based on the wrong standard—the compelling interest test does not apply here. (A) is incorrect because the extent of the right to travel is not clearly defined. _The Supreme Court has established that the right to travel from state to state is a fundamental right that may be violated by state laws designed to deter persons from moving into a state; however, the Court has not specifically applied this rule to the federal government or to the type of tax legislation present here._ **The state cases involved treating old vs. new residents differently for purposes of voting or some government benefit, which may have violated the Privileges or Immunities Clause of the Fourteenth Amendment, or treating outsiders differently from residents, which may have violated the Equal Protection Clause of the Fourteenth Amendment. Neither clause is applicable to the federal government, so neither analysis is appropriate.** (B) also is incorrect. **_While the federal government is not subject to the Equal Protection Clause of the Fourteenth Amendment, it is prohibited from unfair discrimination by the Due Process Clause of the Fifth Amendment._** **Grossly unreasonable discrimination by the federal government could be held to violate due process, but a $25 tax on flights to popular vacation destinations probably does not. The tax is rationally related to the legitimate government interest of revenue production and so will likely be upheld.**

Answer 150

Although the validity of religious beliefs cannot be questioned, the role a belief system plays in a person’s life can be examined to determine whether the beliefs are indeed religious. The Free Exercise Clause of the First Amendment, applicable to the states through the Fourteenth Amendment, prohibits punishing people for their religious beliefs. When a person claims that he is being punished for his religious beliefs, the court may consider whether the person challenging the law sincerely holds those beliefs. Thus, the court may consider whether the parents’ beliefs play a role in their lives similar to that of orthodox religious beliefs.

Answer 151

The state ticket distribution system is unconstitutional because of the Supremacy Clause. **A valid act of Congress supersedes any state or local action that conflicts with it**. _The act here is valid because Congress has the power to spend for the general welfare, and in so doing may place conditions on grants as it sees fit._ **The state law directly conflicts with the federal law** because the federal law requires that tickets be distributed on a first come, first served basis, and the state law requires that 35% of the tickets be given to minority school children. Because the state law conflicts with the federal law, it is invalid. (A), based on the Tenth Amendment, is incorrect because, even if Congress lacks the power to directly regulate the distribution of the tickets in question, the regulation here would still be valid as a spending power condition. **The Supreme Court has held that Congress may condition grants under the spending power even where it cannot directly regulate, as long as the conditions are (i) clearly stated, (ii) related to the purpose of the program, and (iii) not unduly coercive. [See South Dakota v. Dole (1987)—conditioning federal highway grants on prohibiting minors from drinking]** (B) is incorrect because the Supremacy Clause invalidates all conflicting state laws where there is a clash, no matter how complementary the state law may be viewed. (D) is incorrect because the state program probably is valid under the Equal Protection Clause. State programs that favor racial and ethnic minorities are subject to the same strict scrutiny standards as programs that discriminate against minorities: They must be narrowly tailored to promote a compelling government interest. There is a compelling government interest in remedying past discrimination, and the facts indicate that the ballet company was established to remedy the prior lack of cultural opportunities that existed in the inner city. The program also appears to be narrowly tailored, and so would likely survive an equal protection challenge.

Answer 152

The section also provides that Congress may vest the appointment of inferior officers in the President alone, in the courts of law, or in the heads of departments. Under separation of powers principles, however, Congress may not vest in itself any broader appointment powers than what is provided for by the Constitution. Where Congress has not vested the appointment power in courts of law or the heads of departments, it is not permitted to restrict the candidates that the President may nominate for appointment.

Answer 153

The friend can constitutionally be convicted because the statute does not violate the First Amendment. Certain public property (e.g., public streets or parks) is so historically associated with the exercise of First Amendment rights that speech thereon can be regulated only by content neutral proscriptions. Other places controlled by the government, however, are not so historically linked to speech activities, and in such locations free speech might interfere with the intended use of such locations. Thus, the government can regulate access to these limited public forums and nonpublic forums based on the subject matter of the speech, **as long as the regulation is reasonably related to the purpose served by the property and is not designed merely to suppress a particular point of view.** A courthouse and its grounds is not a public forum. (The surrounding sidewalks are, but that is not in issue here.) The statute, although based on the subject matter of speech, is viewpoint neutral and reasonably related to the courthouse purpose of promoting a stable, orderly atmosphere in which judicial proceedings can take place free of improper outside influence or coercion. Thus, the statute is valid and the friend can be convicted for her actions. (A) is wrong because it is based on an overbreadth argument and the statute here is not overbroad. A regulation of speech that restricts substantially more speech than necessary is unenforceable, even if the speech in question could have been properly restricted by a narrower statute. This doctrine is inapplicable here because the statute is not overbroad: it reaches only speech in the courthouse or on its grounds and only that speech that might improperly influence the judicial proceedings; it does not limit all speech at that location. (B) is wrong because the friend’s intent to harm the judge is irrelevant. The statute makes it a crime to make a speech or carry a sign intended to influence the judicial proceeding. The statute does not require that the violator intend to harm anyone. Because the state is entitled to regulate speech or conduct in the courthouse or on its grounds that might interfere with the judicial proceedings, it is entitled to convict the friend for her actions here regardless of her intent to harm the judge. (C) is wrong because it improperly applies the “clear and present danger” test to these facts. ***_Under the current version of the “clear and present danger” test, a state cannot forbid advocating the use of force or violation of law unless such advocacy is_*** ***_(i) directed to producing or inciting imminent lawless action, and_*** ***_(ii) likely to produce such action._*** The state statute here does not purport to punish advocacy of force or lawlessness, but rather seeks to further the purpose of maintaining the stability and integrity of the judicial proceedings by regulating access to certain nonpublic areas. Therefore, the restrictions are constitutionally valid and the “clear and present danger” test is inapplicable.

Answer 154

The statute is an unconstitutional violation of the Commerce Clause. **Regulation of foreign commerce is exclusively a federal power because of the need for the federal government to speak with one voice when regulating commercial relations with foreign governments.** _The existence of legitimate state interests underlying state legislation will not justify state regulation of foreign commerce._ The state statute, in imposing requirements for a license costing $50 and for a clear marking of goods as being from a foreign country, clearly is an attempt by the state to restrict or even eliminate the flow of such goods in foreign commerce. Thus, the statute is unconstitutional. (A) is incorrect because even if the $50 fee represents a reasonable inspection fee, the fee would still constitute an interference with foreign commerce. In addition, the facts do not indicate that the license fee has anything to do with inspection, or that the amount of the fee bears any relation to legitimate inspection purposes. (B) is incorrect because the labeling requirement imposes a burden on goods that flow in the stream of foreign commerce. Although this burden may be relatively small, it is still impermissible in light of the exclusive power held in this area by the federal government. (C) is incorrect because it states factors that would be relevant in a matter involving regulation of interstate commerce, rather than foreign commerce. Congress’s power over interstate commerce is shared with the states, so that a state law may regulate local aspects of interstate commerce if it does not discriminate against out-of-state competition to benefit local economic interests and its incidental burden on interstate commerce does not outweigh the legitimate local benefits arising therefrom. However, Congress’s power over foreign commerce is exclusive, so that factors such as a minimal burden on foreign commerce and the presence of legitimate state interests will not save a state law from a challenge based on the power to regulate foreign commerce.

Answer 155

The teacher's argument is most strongly supported if she moved in reliance on an oral promise that she could be dismissed only for cause. Under the Due Process Clause, a person has a right to notice and a hearing if the government deprives the person of life, liberty, or property. **The Supreme Court has held that a government employee will have a property interest in continued employment only if the employee has a legitimate claim to (as opposed to a mere expectancy of) continued employment. To have such a claim, there must be a contract, clear practice, mutual understanding, etc., that the employee can be terminated only for cause.** If someone in a position of authority promised that the teacher could be dismissed only for cause and the teacher relied on this promise by moving, a case can be made that the teacher had a legitimate claim to continued employment despite the employee handbook. (A) would also support the contention of a legitimate claim to continued employment. If every teacher over the past three years has survived the probation period, an argument can be made that there was a policy of retaining all newly hired teachers. However, this argument is weaker, factually, than the contract argument and so is not as good an answer choice as (C). (B) and (D) are incorrect because they are irrelevant—whether other teachers are more or less competent or younger than the teacher involved here does not factor into whether the teacher here has a legitimate claim to continued employment. The teacher needs to point to a contract or policy providing for dismissal only for cause.

Answer 156

The Equal Protection Clause of the Fourteenth Amendment is the most helpful provision. **State classifications based on alienage that do not involve alien participation in the self-government process are suspect under the Equal Protection Clause and are subject to strict judicial scrutiny.** They will be upheld only if the government can show that the classification is necessary to achieve a compelling state interest. While the state’s interests here in providing jobs, stimulating future tourism, and helping the environment may be compelling, it cannot be said that these goals can be achieved only by discriminating against resident aliens. Thus, the legislation would be found unconstitutional under the Equal Protection Clause. (A) is wrong because the Privileges or Immunities Clause of the Fourteenth Amendment protects the privileges and immunities of United States citizens, not aliens. (B) is wrong because, even if applicable, the Tenth Amendment could only help the state (by reserving to the state powers that are not delegated to the federal government); it does not carry any prohibitions. (D) might provide a viable argument, as a statute that affects a fundamental right can be struck down under the Due Process Clause under the same strict scrutiny test as set out above under the Equal Protection Clause. However, it is a less direct argument than (C) because strict scrutiny applies under the Due Process Clause only if the challenger can show that a fundamental right is involved.

Answer 157

***_The court should rule in favor of the contractor because the pursuit of a livelihood is a right protected by the Privileges and Immunities Clause, and the requirement here substantially interferes with that right._*** ***_The Privileges and Immunities Clause of Article IV prohibits states and municipalities from discriminating against residents of other states._*** **Not all discrimination is prohibited—only that which substantially interferes with important commercial activities or civil liberties.** **_The Supreme Court has held that the right to pursue a livelihood is a right protected by the Privileges and Immunities Clause, and also has held that a requirement that private contractors on city projects employ a certain percentage of city residents substantially interferes with the right._** [See United Building & Construction Trades Council v. Mayor of Camden (1984)] (A) is incorrect because there is no market participant exception under the Privileges and Immunities Clause. _The market participant exception arises from the Commerce Clause and is not appropriate in privileges and immunities analysis. [_See United Building & Construction Trades Council v. Mayor of Camden, supra] (B) is incorrect because the fact that a rational basis exists for the requirement does not justify it. **_The Supreme Court has stated that the Privileges and Immunities Clause prohibition on discriminating against nonresidents may be overcome if there is substantial justification for the discrimination._** **The exception will apply if nonresidents are causing a problem (e.g., unemployment) and the discrimination is the least restrictive means of combating the problem.** It is not apparent from the facts here that the city has an unemployment problem or that nonresidents are causing the problem. In any case, the choice states the wrong standard. Therefore, (B) is incorrect. (D) is incorrect because ***_the Contract Clause is a limitation on states’ rights to modify existing contracts retroactively; it is unrelated to a state’s power to regulate contracts prospectively, which is the case here since the resident employee restriction predated the contractor’s contract._***

Answer 158

The treaty was effectively repealed because the bill was passed over the President’s veto. Valid treaties are on a “supremacy parity” with acts of Congress, meaning that they are both considered to be the “supreme law of the land.” If a conflict exists between them, it is resolved by order of adoption—the last in time prevails. Here, the bill to repeal the treaty was approved by Congress over the President’s veto by a more than two-thirds vote. Thus, the President’s veto was overridden, and because the bill was passed after the treaty, the bill prevails. (A) is incorrect because, as stated above, acts of Congress and treaties are on a supremacy parity—the fact that a treaty is approved by both the President and the Senate does not make it supreme over conflicting legislation that is validly enacted at a later point. (B) is incorrect because of the parity rule discussed above. It is true that the President’s power over foreign affairs is paramount, and the President might be able to enter into an executive agreement to get around the repeal of the treaty, but such a possibility does not change the status of the treaty in question. (C) is incorrect because, although it states the correct result, its rationale is too broad. Acts of Congress are on parity with treaties; they do not automatically invalidate all treaties (e.g., treaties that are entered into after the act of Congress is approved).

Answer 159

_The Supreme Court has held that members of Congress lack standing to challenge a law authorizing the President to exercise a line item veto (such as the statute here), reasoning that the injury is not concrete and personal, but rather is institutional in that it is shared by all members of Congress._ The line-item veto, or partial veto, is a special form of veto power that authorizes a chief executive to reject particular provisions of a bill enacted by a legislature without vetoing the entire bill.

Answer 160

_the taxpayer alleges that the expenditure was enacted under Congress’s taxing and spending power, and exceeds some specific limitation on that power, in particular **the Establishment Clause.**_ Here, by providing federal tax money to parochial schools, there may be excessive entanglement with religion and thus a violation of the Establishment Clause. Thus, the woman would have standing to contest this federal expenditure. The woman would not have to have children to make this challenge. However, she would have to be a taxpayer.

Answer 161

discriminating against out-of-state business or unduly burdening interstate commerce.

Answer 162

* When a state acts as a market participant, it generally is not restricted by the Commerce Clause; it may favor its own citizens, such as by distributing state-owned resources only to residents or paying residents more for something than it would pay an a nonresident (although such conduct might violate the Article IV Privileges and Immunities Clause). * When a regulation is necessary to further an important, noneconomic state interest such as health or safety, it is excepted from the general rule of the negative implications of the Commerce Clause prohibiting discrimination against out-of-state competition.

Answer 163

All of the other choices would be invalid under the negative implications of the Commerce Clause: * A regulation prohibiting out-of-state wastes from being accepted in private landfills discriminates against out-of-state business, * as does a regulation requiring operations to occur in the state, such as requiring all milk sold within the state to be pasteurized in the state, and * the negative implications of the Commerce Clause also prohibit regulations protecting local businesses, such as ones placing a surcharge on out-of-state products.

Answer 164

**States may regulate local aspects of interstate commerce as long as the local regulation does _not conflict with, or is not preempted by,_ federal regulation and the regulation meets the following tests:** **(i) the regulation does not discriminate against out-of-state competition in order to benefit local economic interests, and** **(ii) the incidental burden on interstate commerce does not outweigh the local benefits of the regulation.** In this case, the federal regulations do not conflict with the state ban and are not so comprehensive as to preempt nonconflicting state regulation. With regard to the two-part test, the first standard is met because the regulation is not discriminatory against out-of-state products (because it bans all radar detectors regardless of origin). **_The second part is a balancing test, in which the court will consider whether the regulation promotes legitimate state interests and whether less restrictive alternatives are available._** Here, the ban clearly promotes the state’s legitimate interest in highway safety by making it harder for speeding motorists to evade detection. Anything less than a ban would not be effective in preventing the use of the detectors, and their use makes radar, the state’s best means of preventing speeding, much less effective. On balance, the ban’s local safety benefits outweigh its burden on interstate commerce and transportation.

Answer 165

The legislation violates the Commerce Clause. **As a general matter, a state may regulate in ways that impact on interstate commerce as long as the regulation does so only indirectly and the benefits outweigh the burdens imposed by compliance with the regulation. [Kassel v. Consolidated Freightways Corp. (1981)]** When, as here, only a bare assertion that the regulation would increase safety is involved, a court will generally find that the regulation is invalid. **This does not mean that a state could not prevail if it proved that the benefits of the regulation do in fact outweigh the burdens. Indeed, the Court intimated that such would be the case in Bibb v. Navajo Freight Lines, Inc. (1959).** But state A has not made a sufficient showing here, and the trucking firm has presented colorable “expert” evidence to the contrary.

Answer 166

***_The statute banning the use of one of the tire designs is an unconstitutional burden on interstate commerce even though an equally safe alternative is available in all 50 states._*** ***_If Congress has not enacted laws regarding a subject, a state may regulate local aspects of interstate commerce if the regulation:_*** ***_(i) does not discriminate against out-of-state competition to benefit local economic interests; and (ii) is not unduly burdensome (i.e., the incidental burden on interstate commerce does not outweigh the legitimate local benefits)._*** The facts do not suggest that Congress has regulated the subject of truck tires on state roads. The facts also do not indicate whether either tire design is manufactured in the state, so discrimination in favor of local economic interests is absent. The final test is a balancing test to determine whether the regulation is unduly burdensome, and here the regulation probably will fail. **_In Bibb v. Navajo Freight Lines (1959), the Supreme Court invalidated an Illinois statute requiring trucks to use contour mudguards rather than flat mudguards._** **One aspect of the burden on commerce in that case was that another state required flat mudguards rather than contour mudguards, precluding trucking companies from using one type of mudguard in all 50 states and indicating that the safety benefits that Illinois was claiming for contour mudguards had not been conclusively established.** In this case, because the other tire design is legal in all 50 states, the burden on interstate commerce is not as great. Nevertheless, it is still significant**_. By not permitting equally safe alternative types of tires, which might be cheaper or more readily available, the state is imposing an undue burden on all trucking companies in other states whose trailers might at some time pass through the state._ On the other side of the equation, the Illinois mudguard regulation in Bibb arguably was a safety measure, which is an area of legitimate local concern.** Here, there is no evidence of any safety benefit; both types of tires have been deemed equally safe by independent testing labs. On balance, therefore, the statute is unconstitutional because its incidental burden on interstate commerce outweighs any legitimate local benefits.

Answer 167

The statute will be upheld because it does not discriminate against out-of-state economic interests and it is not unduly burdensome. **_A state or local government may regulate local aspects of interstate commerce if such regulation: (i) does not discriminate against out-of-state competition to benefit local economic interests; and (ii) is not unduly burdensome (i.e., the incidental burden on interstate commerce does not outweigh the legitimate local benefits produced by the regulation)._** The state of Blue statute does not discriminate against out-of-state elements of the lobster fishing industry. The statute is designed to maintain the lobster population by allowing lobsters to reproduce. By maintaining the lobster population, the state is attempting to further the legitimate interest of reviving its faltering lobster fishing industry, rather than trying to protect a local business against interstate competition. _In addition, the statute is applied evenhandedly (i.e., it does not merely regulate the activities of out-of-state lobster fishers while exempting in-state fishers from those same regulations)._ Therefore, the statute does not discriminate against interstate commerce. The statute may impose some incidental burden on interstate commerce by requiring out-of-state lobster fishers to refrain from taking lobsters weighing less than one pound from lobster beds within three miles of the state shoreline. However, this burden should not result in any great difficulty for out-of-state lobster fishers who wish to catch lobsters in state Blue waters. There is nothing especially burdensome or restrictive about the statute’s provisions, and certainly the incidental burden that does exist does not outweigh the state’s legitimate interest in maintaining its lobster population and the vitality of its lobster fishing industry. Consequently, the statute is not unduly burdensome. Because the statute is not unduly burdensome and is nondiscriminatory against out-of-state competition, it does not violate the Commerce Clause.

Answer 168

The Due Process Clauses of the Fifth Amendment (applicable to the federal government) and the Fourteenth Amendment (applicable to the states) provide that the government shall not take a person’s life, liberty, or property without due process of law. Due process contemplates fair process/procedure, which requires at least an opportunity to present objections to the proposed action to a fair, neutral decisionmaker (not necessarily a judge). If a judge has an interest in a case that causes a severe risk of bias, or actual bias, the procedure is not fair and the Due Process Clause is violated.

Answer 169

a unilateral expectancy of continued employment and no property interest

Answer 170

and procedural due process under the Fourteenth Amendment requires notice and an opportunity to be heard before the government may deprive a person of property.

Answer 171

The Court has held that such an employee generally must be given notice of the charges and a pretermination opportunity to respond to those charges. The employee must also be given a subsequent evidentiary hearing regarding the termination (with reinstatement if the employee prevails). [Cleveland Board of Education v. Loudermill (1985)]

Answer 172

strict scrutiny and will be upheld only if the state proves the discrimination is necessary to achieve a compelling government interest. Generally, alienage classifications made by states are subject to strict scrutiny. _(However, there is an exception where the law is related to participation in the self-government process. Such laws are subject only to the rational basis test.)_

Answer 173

The law probably is unconstitutional as applied to the man in question. An equal protection issue is involved. **Under the Equal Protection Clause, state classifications based on alienage are subject to strict scrutiny and so must serve a compelling interest to be constitutional.** No compelling purpose seems to be present here. (A) is incorrect because, although there is an exception from the strict scrutiny standard where a state or local government discriminates against aliens when hiring persons for jobs involving “self-government” processes, the job here (emergency communications for a police department) is a technical position and probably would not be found to be related to the self-government process; in any event, the statute applies to all positions and not just to jobs involving only the self-government process.

Answer 174

national citizenship, which includes the right to travel. Other rights protected include the right to petition Congress for redress of grievances, the right to vote for federal officers, and the right to enter public lands.

Answer 175

_rights of national citizenship do not include all of the rights in the Bill of Rights, although some rights under the Bill of Rights may be held applicable to the states as incidents of due process._

Answer 176

not a right of national citizenship under the Privileges or Immunities Clause of the Fourteenth Amendment, although the right is protected under the Privileges and Immunities Clause of Article IV, which limits states from discriminating against nonresidents.

Answer 177

Although the right is included in the Bill of Rights under the Sixth Amendment, as discussed above, the Supreme Court held in The Slaughterhouse Cases that rights of national citizenship do not include the Bill of Rights.

Answer 178

**The physician will succeed. The Privileges or Immunities Clause of the Fourteenth Amendment prohibits states from denying their citizens the privileges and immunities of national citizenship. *_This includes the right to travel, and the Court has held that the right to travel includes the right of newly arrived citizens to enjoy the same privileges and immunities as are enjoyed by other citizens of the state._*** A state law that distinguishes between new residents solely on the length of their residency will serve no legitimate state interest. Thus, a law limiting medical licenses to persons who have resided in the state for a year runs afoul of the clause. **_(A) is incorrect. The Privileges and Immunities Clause of Article IV prohibits discrimination by a state against nonresidents. Here, the physician is a resident of the state discriminating against him. Hence, the Article IV privileges and immunities protection does not apply._**

Answer 179

The state does not have to show a compelling interest for the discrimination. It must show an "important" one, a lower standard.

Answer 180

The court will likely find that the one-year residency requirement is unconstitutional because it burdens the right to travel. **_An individual has a fundamental right to travel from state to state, and a state law that is designed to deter persons from moving into the state is likely to violate the Equal Protection Clause (as well as the Fourteenth Amendment Privileges or Immunities Clause)._** **When a state uses a durational residency requirement (a waiting period) for dispensing benefits, that requirement normally should be subject to the strict scrutiny test, and usually will be found not to have satisfied the test. _One such requirement that has been invalidated on this basis is a one-year waiting period for state-subsidized medical care, such as the one here. [See Memorial Hospital v. Maricopa County (1974)]_** **_The Supreme Court has specifically held that a state’s interest in fiscal integrity is not sufficient to justify a one-year waiting period for welfare or health benefits._** The states have _no constitutional duty to provide health care benefits for those below the poverty line._ However, once a state chooses to provide such benefits, it may not do so in a manner that violates the Constitution, and, as explained above, the restriction here violates the right to travel. **The privileges and immunities protection of Article IV prohibits discrimination by a state against nonresidents when fundamental national rights are involved.** _Here, the restriction differentiates between residents._ While that could violate the Fourteenth Amendment Privileges or Immunities Clause, Article IV is not implicated.

Answer 181

Speech may be punished or banned under the clear and present danger test whenever it is directed to producing or inciting imminent lawless action and is likely to produce such action. That call to lawlessness has to be “now” and it must be under circumstances likely to produce the action in order to be unprotected speech.

Answer 182

**Statements** meant to place a person in fear of bodily harm and statements likely to incite physical retaliation are both classic examples of fighting words subject to government regulation. **Conduct** undertaken with the intent to cause fear of bodily harm (e.g., cross burning) is considered to be a form of fighting words, even though there is no actual spoken threat. This is because the conduct is intended to convey a message that is unprotected by the First Amendment.

Answer 183

The statute is not unconstitutional. **True threats are not protected by the First Amendment.** Moreover, content-based restrictions on speech are permitted in cases where the speech creates a clear and present danger of imminent lawless action. _A state can forbid advocating the use of force or of law violation if such advocacy (i) is directed to producing or inciting imminent lawless action, and (ii) is likely to produce or incite such action._ Thus, a statute proscribing threats to the life or safety of a public official, such as the statute here, is valid. **However, it cannot constitutionally be applied to the victim’s father.** **It is doubtful that the father’s words will be interpreted as a true threat of immediate harm. In context, the speech seems to be more a political commentary, which would be protected by the First Amendment.** The father appeared to be merely venting his outrage. There was no indication that the father’s words were inciting imminent lawless action or were likely to produce such action. It does not appear that the father was actually threatening the justices with harm or inciting anyone to storm into the court building. Thus, his speech was protected and (B) is incorrect.

Answer 184

The speaker’s conviction will be reversed. _A park is a public forum._ ***_The government can limit rights of speech in such a forum only when there is a serious and imminent threat to the public order._*** **_It can restrict the speech of a speaker because of an unruly audience only in the rare case when the police are absolutely unable to control the crowd. [See Feiner v. New York (1951)]_** In this question, the conditions under which the police can prevent a speaker from continuing because of an unruly crowd have not been met. There were 50 police officers who would have been able to restrain or subdue anyone who appeared to be intent on committing violence.

Answer 185

The court will likely find the statute constitutional if limited to true threats. ***_The Constitution does not protect true threats, defined as speech meant to communicate an intent to place a person in fear of bodily harm._*** (A) is incorrect. While prior restraints are disfavored under the First Amendment, because true threats are not protected speech, the statute does not constitute a prior restraint. (B) is incorrect. _While a state may forbid speech that poses a clear and present danger of imminent lawless action, that is not the only type of unprotected speech under the First Amendment._ (D) is incorrect because the law here does not appear to be a fighting words statute, e.g., personally abusive epithets inherently likely to incite an immediate response.

Answer 186

**permissible if it is designed to promote substantial government interests (e.g., property interests) and does not prohibit all such entertainment in the community. [City of Renton v. Playtime Theaters, Inc. (1986)]** Because the city’s ordinance is a legitimate part of its zoning scheme and does not prevent the businesses from operating in other areas of the town, it will probably be upheld. (A) is incorrect because it is too broad. The type of regulation in this question cannot be based simply on what residents find “offensive”; only regulations that are based on substantial government interests and do not entirely prohibit the activity have been permitted by the Supreme Court.

Answer 187

**A public forum** is public property that historically has been open to speech-related activity. _Examples include sidewalks and public parks._ **A designated public forum** is public property that usually is not used for speech-related activity, but that the government has opened for such activity ***_at particular times_*** _(e.g., a public school gym that can be reserved by the public for use when not being used by the school)._ **A limited public forum** is public property that usually is not used for speech-related activity, but that the government has opened up for such activity ***_for a particular purpose_*** _(e.g., a school gym that has been opened up to host a political debate)._ **Nonpublic forum** is public property not open for speech-related activity. _A county office building would be an example of a nonpublic forum except to the extent that it is specifically opened to the public for speech-related activities._

Answer 188

**The regulation must be content neutral, the regulation must be narrowly tailored to serve an important government interest, and the regulation must leave open alternative methods of communication in order to be valid. Keep in mind, however, that even if these requirements are met, the regulation may be invalidated for other reasons, such as for being vague or overbroad.**

Answer 189

viewpoint neutral and rationally related to a legitimate government purpose.

Answer 190

The gang member can be convicted because the statute does not violate the First Amendment. **Certain public property (e.g., public streets or parks) is so historically associated with the exercise of First Amendment rights that speech thereon can be regulated only by content-neutral proscriptions.** _Other places controlled by the government, however, are not so historically linked to speech activities, and in such locations free speech might interfere with the intended use of such locations_. _Thus, the government can regulate access to these limited public forums and nonpublic forums based on the subject matter of the speech, as long as the regulation is reasonably related to the purpose served by the property and is not designed merely to suppress a particular point of view._ A courthouse and its grounds are not a public forum. (The surrounding sidewalks are, but that is not in issue here.) _The statute, although based on the subject matter of speech, is viewpoint neutral and reasonably related to the courthouse purpose of promoting a stable, orderly atmosphere in which judicial proceedings can take place, free of improper outside influence or coercion._ Thus, the statute is valid and the gang member can be convicted for his actions. (A) is wrong because it is based on an overbreadth argument and the statute here is not overbroad. A regulation of speech that restricts substantially more speech than necessary is unenforceable, even if the speech in question could have been properly restricted by a narrower statute. This doctrine is inapplicable here because the statute is not overbroad: **It reaches only speech in the courthouse or on its grounds and only that speech that might improperly influence the judicial proceedings; it does not limit all speech at that location.** (C) is wrong because it improperly applies the “clear and present danger” test to these facts. _Under the current version of the “clear and present danger” test, a state cannot forbid advocating the use of force or violation of law unless such advocacy is (i) directed to producing or inciting imminent lawless action, and (ii) likely to produce such action._ The state statute here does not purport to punish advocacy of force or lawlessness, but rather seeks to further the purpose of maintaining the stability and integrity of the judicial proceedings by regulating access to certain nonpublic areas. Therefore, the restrictions are constitutionally valid and the “clear and present danger” test is inapplicable.

Answer 191

The anti-littering ordinance will be upheld because it furthers an important government interest unrelated to the content of the communication and is narrowly tailored to the furtherance of that interest. ***_As a general rule, conduct that is intended to communicate is not immune from reasonable government regulation, even though it takes place in a public forum such as a park._*** **_The noncommunicative impact of speech-related conduct in a public forum can be regulated to further an important government interest independent of the speech aspects of the conduct as long as the incidental restriction on the ability to communicate that message is narrowly tailored to further the interest in question, so that alternative channels for communicating the message are available._** The prevention of litter, as a means of maintaining public facilities in usable condition and protecting property values, is an important enough government interest to allow some type of regulation. _The ban on littering is narrowly tailored to accomplish its purpose, unlike, for example, a ban on distributing leaflets that may end up on the ground._ The regulation probably would not have precluded the defendant even from dumping the barrel if she had picked up the trash after her speech was over. (B) is incorrect because it is too broad; some speech-related conduct cannot be punished (e.g., burning a flag). The critical distinction is whether the offense relates to the communicative content of the conduct or to state interests independent of its communicative aspects.

Answer 192

The most helpful additional fact for the patron is that the head librarian allowed other people to distribute leaflets at all hours. Although the government may adopt reasonable time, place, and manner restrictions in public forums and designated public forums, **_such restrictions must be content-neutral.**_ The head librarian’s allowing some people to distribute leaflets at all hours shows that the restriction here is probably being used _**as a content regulation**_, which would be prohibited under these facts. Additionally, if the head librarian is allowing others to distribute leaflets at all hours, _**the discriminatory application of the ordinance might also violate the Equal Protection Clause.**_ (A) is not very helpful because the fact that the patron was informed once of the rule would be sufficient to give her notice that she was violating the law. There is no requirement that persons be warned twice that they are violating speech regulations. (B) might help the patron because she could claim that because the library is surrounded by a public forum (sidewalks), the front door step also is a public forum. _**This argument will probably fail, however, because the Supreme Court has never made such a holding (and indeed has held that although the sidewalks around the Supreme Court building are public forums, the Supreme Court building itself is not a public forum). This fact might even hurt the patron, because it indicates that alternative public forums were readily available._** (D) is not very helpful because political fundraising receives no more First Amendment protection than pure political speech; indeed, more regulation is allowed in the fundraising arena.

Answer 193

*_The Supreme Court has held that curriculum-based public high school activities are not public forums._* **_Content regulation of nonpublic forums is allowed as long as the regulation is viewpoint neutral and reasonably related to a legitimate government purpose._** The court should rule for the high school. Here, school policy prohibited all discussion of drugs in the school newspaper and was therefore viewpoint neutral. Moreover, the school could argue that prohibiting discussion of drugs in the school paper discourages drug use, a legitimate school interest. Thus, the court should rule for the school. à why not public schools from lecture p. 64

Answer 194

**The Free Exercise Clause prohibits government from punishing conduct just because it is religious.** If the intent of the law is to interfere with religion, or if the law punishes conduct solely because it is religious, the law is invalid. For example, a law may not prohibit ritual slaughter of chickens while otherwise allowing the slaughter of chickens. The Free Exercise Clause does NOT prohibit laws of general **applicability unless they have an exception for religiously motivated conduct.** Religiously neutral laws of general applicability generally are valid under the Free Exercise Clause without religious exemptions **with two historic exceptions: the Amish must be exempted from mandatory schooling beyond eighth grade, and workers fired for refusing to perform tasks on religious grounds may not automatically be exempted from unemployment compensation.** The Free Exercise Clause does NOT prohibit government regulations that interfere with religious practices unless the government can prove that the regulation is necessary to achieve a compelling government interest or that the regulation is narrowly tailored to achieve an important government objective. **These choices reflect higher standards (strict scrutiny and intermediate scrutiny, respectively) than is currently used in Free Exercise cases. Older cases purportedly applied strict scrutiny, but the Supreme Court seemed often to have to stretch to find a compelling interest in such cases.** A program whereby, once weekly, the schoolday ends one hour early so that interested students may participate in voluntary religious classes in a separate location from the school is valid. _(A similar program held in the school itself has been struck down, because turning the classrooms over to religious instructors was found to promote religion.)_ A voluntary moment of silent prayer or meditation at the beginning of the schoolday is invalid as promoting religion. _It is irrelevant that the exercise is voluntary and that it is silent._ Posting of the Ten Commandments in a public school pursuant to legislature’s declaration that the posting is for a secular purpose is invalid. The Supreme Court ruled that this program clearly served a religious purpose _in spite of the legislature’s statement._ A school policy whereby students themselves decide whether to hold a student invocation (invocation is used to mean a spell or a prayer that calls upon a higher power) ceremony prior to athletic events in invalid. _The policy promotes religion and allowing the students to vote does not negate the policy’s effect._

Answer 195

The city may continue to operate the garden because the display is not primarily religious in nature. Government action challenged under the Establishment Clause will be found invalid unless the action (i) has a secular purpose, (ii) has a primary effect that neither advances nor inhibits religion, and (iii) does not involve excessive government entanglement with religion. This is known as the Lemon test. _This test is met here: The secular purpose is to promote pride in heritage and perhaps to encourage people to learn about the heritage of others. The primary effect does not promote or inhibit religion, but merely acknowledges the religious backgrounds of the city residents. Finally, the maintenance and administration of the garden by the city does not constitute excessive entanglement between government and religion._ **_Establishment Clause cases not involving a sect preference are resolved under the above three-part test and not under the compelling interest test._**

Answer 196

The convictions will be reversed if it can be shown that the statute is being applied only to interfere with religion. **_The Free Exercise Clause prohibits government from punishing religious belief. The Clause prevents government from punishing conduct merely because it is religious and from regulating conduct for the purpose of interfering with religion._ However, the Clause does not prohibit government from regulating general conduct, even if the regulation happens to interfere with a person’s ability to conform conduct to sincerely held religious beliefs.** Thus, if it can be shown here that the statute is not really a regulation of general conduct but rather is being applied only to interfere with religion, the convictions will be reversed. (D) is incorrect because the church board would have standing. All that is required is a **_concrete stake in the outcome of the litigation_**; having been prosecuted for violating the statute, the board’s stake is about as concrete as it can get.

Answer 197

**_Regarding congressional districts, almost exact mathematical equality between the congressional districts within a state is required under the one person, one vote principle._** **The rationale is that voting is a fundamental right, diluting one person’s vote compared to another’s raises equal protection concerns, and there is no compelling interest that would justify more than a couple of percentage points difference from district to district.** **_Regarding state government districts, almost exact mathematical equality between districts is NOT required under the one person, one vote principle._** **In state government districts, the variance from district to district may not be unjustifiably large. But this is a much more lenient standard than the almost exact mathematical equality standard.**

Answer 198

(A) The farmer is not likely to prevail because the rational relationship test applies. **_Although the right to vote is a fundamental right, laws prohibiting nonresidents from voting are generally valid, provided that they meet the minimal scrutiny, or “rational basis,” standard._** Under this standard, a law will be upheld as long as it is rationally related to a legitimate government interest. Limiting the voters in a city’s mayoral election to residents of the city serves the interests of efficiency and prevents persons with little personal interest in the city from voting. Thus, a court would likely uphold the ordinance.

Answer 199

The resident will not prevail because the reapportionment plan does not violate the Equal Protection Clause of the Fourteenth Amendment. **That provision has been interpreted to prohibit state dilution of the right to vote, so that whenever a governmental body establishes voting districts for the election of representatives, the number of persons in each district may not vary significantly.** However, for the purpose of electing representatives to a state or local governmental body, the variance in the number of persons included in each district can be greater than that permitted for congressional districts. ***_If the deviation from mathematical equality between districts is reasonable and tailored to promote a legitimate state interest, the law establishing the districts will likely be upheld._*** **The Court has held that maintaining the integrity of local political subdivision lines when establishing legislative districts is a legitimate state interest, as long as the final apportionment is substantially based on population. [See Mahan v. Howell (1973)—16% variance upheld]** Here, the reapportionment attempted to conform legislative districts as nearly as possible to county borders and had a maximum variance of 12%. Thus, it will probably withstand the resident’s challenge.

Answer 200

The resident’s suit is not moot even if the matter will not be decided until after the election because other members of the class might have a live controversy. Under the case and controversy requirement of the Constitution, there must be a real, live controversy at all stages of the suit. If through the passage of time, the controversy between the parties is resolved, the case is said to be moot. However, there are exceptions to the mootness doctrine. In a class action, it is not necessary that the suit by the named plaintiff be viable at all stages, as long as the claim is viable by some member of the class. Thus, the suit here would not be moot. _Moreover, the residency requirement here violates the resident’s fundamental rights to vote and to interstate travel._ _A restriction on the right to vote is subject to strict scrutiny and is valid only if it is necessary to achieve a compelling state interest (otherwise the restriction violates the Equal Protection Clause by treating new residents differently from old residents). Relatively short residency requirements (e.g., 30 days) have been upheld as being necessary to promote the compelling interest of assuring that only bona fide residents vote._ However, the Supreme Court has struck down longer durational requirements for lack of a compelling justification. Thus, the one-year requirement here probably unconstitutionally impinges on the right to vote. **The residency requirement also impinges on the fundamental right to travel in the same manner (i.e., it discourages people from migrating by denying them the right to vote without a compelling reason). Thus, the requirement is invalid.**

Answer 201

The graduate is correct as to the promise to respect the flag, but incorrect as to the other two promises. The Supreme Court has upheld oaths requiring government employees to oppose the violent overthrow of the government and to support the Constitution. However, it has held that government employees cannot be required to show respect for the flag, as a person might refuse to salute the flag on religious grounds.

Answer 202

Under Article III, Section 2, the United States Supreme Court has original jurisdiction in all cases

Answer 203

The theater owner’s best defense is that the film has proven artistic merit. **_The First Amendment generally protects the right of freedom of speech, and this freedom includes the right to show movies. Thus, to enjoin the showing of the movie here, the city will have to prove that the speech involved is unprotected speech._** _Obscenity is the category of unprotected speech most relevant here. The Court has defined obscenity as a depiction of sexual conduct that, taken as a whole, by the average person, using contemporary community standards:_ _(i) appeals to the prurient interest in sex;_ _(ii) portrays sex in a patently offensive way; and_ _(iii) using a rational, reasonable person standard, does not have serious literary, artistic, political, or scientific value._ _If the theater owner shows that the film has proven artistic merit, it cannot be held to be obscene because the third element of the above definition will have failed._

Answer 204

**The federal court should not hear the case because it is not yet ripe for review.** A federal court will not hear a case unless there exists a “case and controversy.” This has been interpreted to mean, among other things, that a plaintiff generally is not entitled to review of his claim unless he has been harmed or there is an immediate threat of harm. This is to prevent the federal courts from hearing unnecessary actions. **_There is no immediate threat of harm to the union here because the law does not take effect for another two years._** **Before that happens, Congress might change the law or repeal it altogether, or the school board may decide to keep the old contract system after all.** B) is incorrect because the union would have standing. An association has standing if (i) there is an injury in fact to its members that would give them standing, (ii) the injury is related to the organization’s purpose, and (iii) neither the nature of the claim nor the relief requested requires participation of the individual members in the lawsuit. All three of the conditions are met here; thus, the union would have standing. (C) is incorrect because the **_Contract Clause does not limit federal power, only state power_**, ***_and because the state would be acting pursuant to a federal law here, there would be no Contract Clause violation._*** Moreover, even if the Contract Clause limited the state’s actions here, it still is not clear that there would be a constitutional violation. **The Clause bans only substantial interference with existing contracts (i.e., destruction of almost all of a party’s rights under a contract), and it is not clear here that the impairments would be sufficiently substantial.**

Answer 205

**Congress’s power to regulate commerce has been construed broadly, so that it may regulate any activity, local or interstate, that either in itself or in combination with other activities has a substantial economic effect on interstate commerce.** **If Congress has determined that the use of chemical pesticides and their runoff into waterways (which are channels of interstate commerce) will have an overall detrimental impact on the environment, this determination will be sufficient in this case to satisfy the standards established by the Supreme Court. Therefore, the law probably is a valid exercise of the commerce power.** ***_Any state or local action that conflicts with a valid act of Congress is invalid under the Supremacy Clause._*** ## Footnote **(A) is incorrect because while the police power (the power to adopt regulations for the health, safety, and welfare of citizens) belongs to the states, a police power regulation that conflicts with a federal law is invalid under the Supremacy Clause.**