constitutional law workshop Flashcards
Congress enacted a statute requiring colleges
and universities receiving federal funds to offer
aid to students solely on the basis of need.
Which of the following is the strongest constitutional argument in favor of enacting such a
statute?
(A) Power to tax and spend for the general
welfare.
(B) Power to enforce the Privileges or Immunities Clause of the Fourteenth Amendment.
(C) Power to enforce the Equal Protection
Clause of the Fourteenth Amendment.
(D) Police power.
(A) The strongest basis for the statute is Congress’s power to tax and spend for the general welfare.
Congress may spend for any public purpose, and may require entities that accept government
money to act in a certain manner. Because the federal government has the power to tax, and
because spending for education is for the general welfare, the government may attach any reasonable conditions to the expenditure it desires.
(B) is wrong because the Privileges or Immunities
Clause protects certain privileges and immunities of national citizenship but does not extend to
education.
(C) is wrong because there is no disparate treatment here of similarly situated persons
that would violate the Equal Protection Clause.
(D) is wrong because there is no general federal
police power.
The President issued an executive order
prohibiting exportation to certain countries of
specific computer software that, although not
usable directly to develop nuclear weapons,
would facilitate nuclear weapons technology.
Congress had previously passed a law authorizing the issuance of such orders. Prior to the
issuance of the executive order, a computer
software company contracted with one of those
countries for software that is now banned for
sale and distribution.
What effect does the executive order have on
this contract?
(A) The executive order unconstitutionally
impairs the obligation of the company’s
preexisting contract, which was lawful
when made.
(B) The executive order unconstitutionally
denies the company a valuable property
interest without due process, because it
is not limited to computer software used
directly to produce nuclear weapons and,
therefore, is not necessary to vindicate a
compelling national need.
(C) The executive order is constitutional
because Congress has plenary powers to
regulate commerce with foreign nations
and has used that power to authorize such
orders.
(D) The executive order is constitutional,
because the inherent power of the President
to conduct foreign affairs is plenary.
(C) The executive order is constitutional because it was authorized by Congress. For all practical
purposes, the power to regulate foreign commerce lies exclusively with Congress, and Congress
may delegate this power to the President. By authorizing the issuance of the Presidential executive
order, Congress has constitutionally exercised this power.
(D) is incorrect. The President’s power
is limited by the Constitution, which grants Congress the power to regulate foreign commerce.
(A) is incorrect because the impairment of the Contract Clause applies to state governments only,
not to the federal.
(B) is incorrect because the company’s contract right would not qualify as a
property interest under the Fifth Amendment
The state capitol building had fallen into
disrepair, so the state contracted with a company
for remodeling. After the contract was signed
but before remodeling work had started, the
state repealed the statute authorizing money for
remodeling and notified the company that it was
cancelling the contract because of budgetary
concerns.
If the company brings suit in federal court
against an appropriate state official to enjoin
cancellation of the contract, for which party
should the court rule?
(A) For the company, because it had a valid
contract.
(B) For the company, if it has detrimentally
relied on its contract with the state.
(C) For the state official, because the courts
will not substitute their judgment for that of
the legislature.
(D) For the state official, because constitutionally the sovereign is not liable except with
its own consent.
(A) The court should hold for the company because it has a valid contract. A state violates the prohibition against impairing the obligation of contract when it substantially impairs any contracts to which it is a party and the impairment does not meet the various exceptions recognized by the
Court. Here, the state is simply seeking to reduce its contractual financial obligations, and its
decision would violate the prohibition.
(B) is wrong because detrimental reliance on the part of
the corporation is not required.
(C) is wrong because, while states have great latitude in purely
economic and social matters, the state may not act in violation of a constitutional prohibition.
(D) is wrong because, while the Eleventh Amendment provides that federal courts do not have
jurisdiction in suits against the states, that functional equivalent of sovereign immunity does not
prohibit suits alleging that state officials have violated the Constitution.
A United States senator made a speech on the
Senate floor asserting that the President has a
swastika tattoo in a location usually covered by
clothing. The assertion is demonstrably false,
and the senator knew that it was either false or
very unlikely to be true. The President has sued
the senator for defamation.
Which of the following is the best reason for
the court to dismiss the complaint?
(A) The President’s tattoos are not a matter of
public concern.
(B) The statement was not made with actual
malice.
(C) The complaint presents a nonjusticiable
political question.
(D) The statement was made by a senator on the
Senate floor.
(D) The best reason for the court to dismiss the complaint is that the senator’s statement was made
on the Senate floor and is therefore protected by the Speech or Debate Clause. Article I, Section 6 provides that “For any speech or debate in either House [members of Congress] shall not be
questioned in any other place.” Senators who make statements on the Senate floor have immunity
from defamation suits, even if the defamation suit could otherwise overcome the high standard for
suits against public figures.
(A) and (B) are wrong because they are related to the First Amendment protections related to defamation claims. Setting aside the Speech or Debate Clause issues, the senator could be liable for defamation even though the statement was made about a public
official. The President likely can prove both falsity and fault based on the facts.
(C) is wrong
because this is a personal, not a political dispute, and the Speech or Debate Clause is much more
clearly applicable.
A state law provided that only citizens of the
United States may be hired by any governmental
unit within the state. A citizen of the Philippines,
who had been a legal resident of the state for five
years, was awarded a medical degree from the
state university and was licensed by the state to
practice medicine. The doctor applied for a job
opening in the state government, but despite the
fact that she was fully qualified, she was rejected
solely because of the statute.
If she files suit in federal court to enjoin
enforcement of the statute, what is her best
constitutional argument?
(A) The Ex Post Facto Clause.
(B) The Equal Protection Clause of the
Fourteenth Amendment.
(C) The Due Process Clause of the Fourteenth
Amendment.
(D) The Privileges or Immunities Clause of the
Fourteenth Amendment.
(B) The doctor’s best constitutional argument is the Equal Protection Clause. The Supreme Court
has ruled in a handful of cases that a state may require citizenship for important state jobs that
directly affect the political process, provided the state has a rational basis for such discrimination.
[See, e.g., Foley v. Connelie (1978)—state troopers; Ambach v. Norwick (1979)—primary and
secondary school teachers; Cabell v. Chavez-Salido (1982)—probation officer] This is an exception to the usual rule that state classifications of aliens are “suspect” and subject to strict scrutiny.
Serving as a doctor is unlikely to fit this exception.
(A) is wrong because the Ex Post Facto Clause
applies only to retroactive criminal laws.
(C) is wrong because the doctor does not have a liberty
or property interest in the possible government job. Because there is not a deprivation of life,
liberty, or property, the Due Process Clause is inapplicable. (D) is wrong because the Privileges
or Immunities Clause merely forbids a state from infringing on rights of national citizenship and
has essentially been a dead letter since the Slaughterhouse Cases (1873). Thus, (B)—the Equal
Protection Clause—is the basis for the doctor’s strongest argument.
Congress enacted a statute making it illegal
to sell reading glasses without a prescription. The statute provided that any business
violating the statute after it becomes effective
is guilty of a misdemeanor, punishable by
the imposition of a $300 fine and the loss of
its business license. A drugstore owner had
maintained a large rack of nonprescription
reading glasses for years. He was able to offer
high quality nonprescription glasses to his
customers at low prices because five years ago
he entered into a very advantageous 10-year
contract with a leading supplier of nonprescription eyeglasses. The owner’s drugstore
was one of the first to be inspected after the
new statute took effect. Two weeks after
the inspection, the owner received a letter
informing him that his business license had
been revoked because he was found to have
been selling nonprescription reading glasses
in violation of the new statute. The letter was
the first time the owner had ever heard of the
statute.
Which of the following constitutional clauses provides the owner with his best defense to the revocation of his business license? (A) The Privileges and Immunities Clause of Article IV. (B) The Contract Clause. (C) The Due Process Clause. (D) The Equal Protection Clause.
(C) The owner’s best argument is that he was deprived of liberty or property without due process of
law. Under the Due Process Clause, a party is entitled to notice and an opportunity to be heard
before being deprived of liberty or property. Here, the owner was deprived of his business license
without a pre-deprivation hearing, and nothing in the facts indicates that he is entitled to any
type of post-deprivation hearing. As such, the statute may be unconstitutional, and that would be the owner’s best defense. (A) is incorrect. The Privileges and Immunities Clause of Article IV
protects against discrimination by a state in favor of its own citizens when it affects a fundamental
right, such as the pursuit of a livelihood. Here, while we are dealing with the owner’s right to earn
a living, the statute is a federal statute, so the Privileges and Immunities Clause is not applicable.
In any case, no discrimination against nonresidents is evident here.
(B) is incorrect. The Contract
Clause limits the states’ ability to substantially impair existing contract rights. Here, it can be
argued that the statute impairs substantial contract rights between the owner and the eyeglass
supplier, but the Contract Clause is inapplicable because the statute here is a federal statute. The
Contract Clause does not apply to the federal government.
(D) is incorrect. The Equal Protection Clause prohibits the government from treating similarly situated people differently without
sufficient justification. The classification here treats persons who sell nonprescription eyeglasses
differently from those who do not. Because the classification involves neither a suspect nor quasisuspect classification, the statute will be upheld as long as there is any rational basis for the disparate treatment, and it is rational to limit the distribution of nonprescription eyeglasses.
A defendant stood accused of murdering
a family of six in a small town. The judge,
concerned not only about prejudice to the defendant’s right to a fair trial but also about media
attention and public opinion in such a small
locale, issued an order forbidding the press from
attending the trial or publishing any details of
the testimony at trial.
If a local newspaper sues in federal court to
have the judge’s gag order overturned, will the
newspaper prevail?
(A) Yes, because the proper way to deal with
prejudicial publicity is via a change of
venue.
(B) Yes, because the newspaper has a Sixth
Amendment right to a public trial.
(C) Yes, because the judge has attempted to
impose a prior restraint in violation of the
First Amendment.
(D) No, because the judge honestly believed
that publicity would be prejudicial and
would impair the defendant’s constitutional
right to a fair trial.
(C) The newspaper will prevail on First Amendment grounds. In Nebraska Press Association v.
Stewart (1976), the Supreme Court made it clear that a prior restraint will be upheld only if it
is the only sure way of preserving a fair trial for the defendant. Although prejudicial publicity
can pose a serious problem, the Supreme Court held that it virtually always should be dealt with
by means other than prior restraints.
(A) is incorrect because a change of venue is only one of
many techniques available to judges dealing with prejudicial pretrial publicity. Delaying trial and
screening and sequestering jurors are among the other means that can be used.
(B) is incorrect
because the constitutional right to a public trial under the Sixth Amendment belongs to the defendant, not the media or the public. Prior restraints violate the First Amendment rights of freedom
of speech and press.
(D) is incorrect because such prior restraints are almost always unconstitutional. Also, (D) fails to indicate that less restrictive alternatives would be ineffective. Prior
restraints are tolerable only if no less restrictive alternative would work.
Due to violence erupting against picketers
advocating automatic deportation of foreign
persons accused of a crime, a state enacted a
law prohibiting all picketing “carried out for the
purpose of deterring others from exercising their
constitutional rights.”
The strongest constitutional defense that can
be asserted by those charged with violating this
statute is which of the following?
(A) The Fifth Amendment right to due process
of law, because the statute is so vague that
reasonable persons cannot ascertain its
scope.
(B) Equal protection of the laws, because
the statute does not prohibit picketing for
purposes other than those specified.
(C) First and Fourteenth Amendment rights of
free expression and assembly, because the
statute excessively restricts the marketplace
of ideas.
(D) Article IV privileges and immunities of
state citizenship, because picketing is a
fundamental right.
(C) The strongest defense is based on free expression and assembly grounds. It is presumptively
unconstitutional for the government to place burdens on speech because of its content. Because
the statute regulates content of the speech rather than conduct, the state would need to establish
a compelling interest behind the legislation for the law to be valid. This puts the burden on the
state to prove the need for the legislation.
(A) is incorrect because the Due Process Clause of the
Fifth Amendment applies to the federal government, not to the states.
(B) is incorrect because any
discrimination that may arise from the statute is merely an effect of facially neutral legislation and
not subject to the Equal Protection Clause. (D) is incorrect because Article IV prohibits discrimination by a state in favor of its own citizens, which is not the case here.
As part of legislation enacted for the stated
purpose of improving computer literacy of
schoolchildren, Congress appropriated funds
to permit public school teachers who had been
certified by state school districts as remedial
computer instructors to provide supplemental
computer instruction to any students in either
public or private schools who did not have access
to computer resources. To help insure content
neutrality, the statute required the instructors
coming to the private schools to use the laptop
computers supplied by the public school districts,
which contained the programs that the instructors used for the same purpose in the public
schools.
If most of the private schools covered by the
statute are religiously affiliated schools, is the
statute constitutional?
(A) Yes, because the legislation is narrowly
tailored to promote a compelling government interest.
(B) Yes, because the legislation defines
the context in which instruction can be
provided in private schools so as to avoid
excessive government entanglement with
religion.
(C) No, because the appropriation’s primary
effect advances religion in violation of the
Establishment Clause of the First Amendment.
(D) No, because the court will presume that any
instruction provided on the premises of a
religiously affiliated school will be influenced by religion.
(B) The statute is likely to be found constitutional. 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 secular purpose, (ii) have a primary effect that
neither advances nor inhibits religion, and (iii) not produce excessive government entanglement
with religion. With respect to the first prong of the test, most government programs that provide
aid for religiously affiliated grade schools or high schools will have a secular purpose—to aid
in 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 content and programs that they use in the private schools are the same
as they use in the public schools. (A) is incorrect because the Court only uses the compelling
interest test in Establishment Clause cases when legislation includes a preference for one religious
sect over others, which is not the case here. In the absence of a sect preference, the three-part test
described above is used
