Framework

Question 1

What’s the process for answering these questions on the MBE?

(hint: who, what, how)

Answer 1

Who are the parties at issue?

• private
• fed government
• state or municipalities

What is the issue?

• Power
• Rights

How:

• If power: how can they do this under the Constitution?
• If rights: how is a particular being infringed AND how does Constitution protect against these violations?

Question 2

What are the frequently tested executive powers questions?

Answer 2

Domestic authority: concerns appointing high-level officers with Senate approval, pardon federal offenses, and veto bills

Power over external affairs: can act militarily but not declare war; rep US; enter into treaties with 2/3 Senate approval

Question 3

How can Congress do what they are attempting to do x?

Hint: taxing and spending or ICC

Answer 3

Taxing and Spending:

• taxing: must bear some reasonable relationship to revenue production OR be in Congress’s regulatory power
• spending: based on gen welfare

ICC

• plenary power to regulate interstate and foreign commerce
• Can regulate intrastate (inside) if:
  (i) channels of interstate commerce
  (ii) instrumentalities of interstate commerce
  (iii) economic activity where there is a substantial effect on interstate commerce in the aggregate

Question 4

T/F: Congress’s taxing and spending power are limited by individual rights.

Answer 4

True.

Question 5

T/F: Any answer choice that says Congress has legislative authority under its police powers is wrong.

Answer 5

True normally, except if it involves DC, a US territory, or the military.

Question 6

How are states/municipalities’ police powers restricted?

Answer 6

Dormant Commerce Clause
- if Congress has not regulated, state can IF: (a) law does not discriminate against interstate commerce OR unduly burden interstate commerce

Privilege and Immunities (Article IV)

• protects out-of-state citizens from a state denying them important economic interests
• only applies to people

Question 7

How can the government interfere with individual rights?

Answer 7

Ask, how are these violations analyzed under the Constitution?

EPC: triggered by treating similarly situated people differently + determine what right is being infringed

DPC: triggered by denying all a fundamental right –> apply correct test

Takings: triggered by denying life, liberty or property interest without notice and fair hearing

1st Amend: triggered by affecting speech or religion

• Speech: (a) limiting content of speech, SS unless less protected/unprotected speech.
  (b) limiting manner, then look at time, place, manner framework.
• Religion: (a) limits - free exercise issue or (b) supports = Establishment Clause

Question 8

A state Occupational Health and Safety Board recently issued regulations valid under its statutory mandate requiring that all employers in the state provide ionizing air purification systems for all employee work areas. These regulations replaced previous guidelines for employee air quality that were generally not mandatory and did not specify the method of air purification used.

The requirements regarding air purification systems are likely to be unconstitutional as applied to which of the following employers?

A - A wholly owned subsidiary of a Japanese corporation with seven retail outlets within the state.

B - The state supreme court, which recently completed construction of its new courthouse with a non-ionizing air purification system which the builder is contractually bound to maintain for the next three years.

C - A United States Armed Forces Recruiting Center located adjacent to the state capitol building.

D - A privately operated community service center funded by donations and constructed through use of a loan provided by the United States Veterans Administration and repayable to that agency.

Answer 8

(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.

(D) is incorrect because, although the recreation center’s construction was funded by a loan from the Veterans Administration, the center itself is privately operated and funded by donations. As a result, the center has only a tenuous connection with the federal government, so that it cannot claim the immunity afforded to a federal agency or instrumentality. Accordingly, in the same sense as is employed in the federal tax immunity cases, the agency does not “stand in the shoes” of the federal government. Thus, the application of the state regulations to the recreation center would not present constitutional problems.

Question 9

T/F: Public policy forbids a state from suing the US without its consent.

Answer 9

True. But the US can sue whoever it wants without getting consent.

Question 10

Is a suit against a federal officer deemed to be brought against the US?

Answer 10

Yes, if the judgment sought would be satisfied out of the public treasury or would interfere with public administration.

Question 11

Running a town

Is this state action?

Answer 11

Yes, state action

Question 12

Granting a license and providing essential services to a private club

Is this state action?

Answer 12

Not state action

Question 13

Granting a monopoly to a utility

Is this state action?

Answer 13

Not state action

Question 14

Heavily regulating an industry

Is this state action?

Answer 14

Not state action

Question 15

Granting a corporation its charter and exclusive name

Is this state action?

Answer 15

Not state action

Question 16

Enforcing restrictive covenants prohibiting sale or lease of property through use of state courts

Is this state action?

Answer 16

State action

Question 17

Leasing premises to a discriminatory lessee where state derives extra benefit from the discrimination

Is this state action?

Answer 17

State action

Question 18

Administering a private discriminatory trust by public officials

Is this state action?

Answer 18

State action

Question 19

A state law is a proposed statute. Does SCOTUS have jurisdiction?

Answer 19

No. The court should dismiss because no case or controversy is present.

Question 20

Which of the following suits would not fall within the United States Supreme Court’s original jurisdiction under Article III, Section 2?

A - suit seeking to assert the interest of state citizens in retaining diplomatic relations with a foreign nation.

B - suit seeking to protect a state’s timber from allegedly illegal cutting by residents of another state.

C - suit seeking to enjoin enforcement of an allegedly unconstitutional executive order that will greatly limit the state’s authority to make policy decisions regarding admission to state universities.

D - suit by the United States Government seeking to enjoin state construction of a bridge over a navigable waterway.

Answer 20

The suit to assert state citizens’ rights is not within the Supreme Court’s original jurisdiction. Under Article III, Section 2, the United States Supreme Court has original jurisdiction in all cases 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.