Long Questions

Question 1

A state requires that persons holding a state license to practice a particular profession reside in the state for at least one year before engaging in that practice. A practitioner who held the state license moved into the state and shortly thereafter contracted with a local business to provide professional services. As soon as he began practicing his profession, the state licensing board sought to sanction him for violating the one‑year waiting period.

Which of the following provides the strongest basis for the practitioner to challenge the waiting period?

1. The Privileges or Immunities Clause of the Fourteenth Amendment.
2. The Privileges and Immunities Clause of Article IV.

Answer 1

The Privileges or Immunities Clause of the Fourteenth Amendment.

The strongest basis for challenging the waiting period is the Privileges or Immunities Clause of the Fourteenth Amendment. The Fourteenth Amendment Privileges or Immunities Clause prohibits states from denying their citizens the privileges or immunities of national citizenship, including the right to interstate travel. The right to travel includes the right of newly arrived citizens of a state to enjoy the same privileges and immunities as are enjoyed by other citizens of the state. In Saenz v. Roe (1999), the Supreme Court held that the Clause was violated by a state statute limiting the welfare benefits of those who had resided in the state for less than a year. Hence, that Clause is an appropriate basis for challenging the provision.

2. Is incorrect because the Privileges and Immunities Clause of Article IV prohibits discrimination against nonresidents, and here, the discrimination is against a new resident rather than a nonresident.

Question 2

An accountant employed by the Federal Communications Commission was offended by various jokes and cartoons that employees would post in the office cafeteria. The Commission did not have any rules regarding what employees could post in the cafeteria, and none of the cartoons were pornographic or harassing. Nevertheless, the accountant lodged a number of complaints with his supervisor that went unheeded. Finally, the accountant posted his own notice chastising the hypocrisy and immorality of the agency for allowing such cartoons when it was charged with ensuring a standard of decency on the public airwaves. The notice prompted a great deal of debate among employees and a great deal of displeasure on the part of the accountant’s supervisor, particularly after it was posted on another employee’s blog and received some media attention. A labor contract between the agency and the clerical workers’ union contained a policy for providing for termination of union employees only for certain specified grounds, but the accountant was not a member of the union and was not covered by the policy or any other employment agreement.

Which of the following statements is most accurate regarding the agency’s right to dismiss the accountant?

1. The accountant has a liberty interest in the exercise of his First Amendment rights that entitles him to a hearing to contest the grounds of his dismissal.
2. The accountant has a property interest as a public employee that precludes him from being fired without notice and an opportunity to respond.
3. The accountant has no right to a hearing because his statements were not an expression of views on public issues.
4. The accountant has both a liberty interest and a property interest that entitles him to a pretermination evidentiary hearing.

Answer 2

The accountant has a liberty interest in the exercise of his First Amendment rights that entitles him to a hearing to contest the grounds of his dismissal.

If the accountant is fired, he has a right to a hearing to determine whether his First Amendment rights were violated by his 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. A government employee may not be fired for expressing his views regarding public issues, but can be fired for speech that disrupts the employer’s policies or undermines the employer’s authority. Under the Court’s expansive interpretation of what a public issue is in this context [see Rankin v. McPherson (1987)], the accountant’s statement would probably qualify. At the very least, he can make enough of a showing that his termination violates his 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 accountant does not appear to have a property interest in his job. A public employee who is subject to removal only for “cause” has a property interest in his job and must be given notice of the charges against him that are to be the basis for his job termination, and a pretermination opportunity to respond to those charges. Here, however, the accountant did not have a property interest in his job. He could have been dismissed for no reason at all. He was not covered by the labor contract between the agency and its clerical workers, and there appears to be no other basis for him to claim an entitlement to continued employment. (C) is wrong because the accountant is entitled to a hearing as long as he can raise a prima facie claim that his speech, which was regarding an issue important to the perception of his agency, was on a public issue and therefore protected by the First Amendment. (D) is wrong for two reasons: As discussed above, the accountant does not have a property interest in his job. Also, due process does not necessarily entitle him to a pretermination evidentiary hearing; a post-termination evidentiary hearing is probably sufficient. [See Cleveland Board of Education v. Loudermill (1985)]

Question 3

In compliance with a federal statute that permits government agencies to sell or give away surplus government property, the Secretary of State directed that one of the State Department’s surplus airplanes be given to a church. The Secretary knew that the church planned to use the plane to fly medical supplies to its missions in Third World countries. These missions provide medical assistance, but they also attempt to evangelize residents of the countries in question, and the Secretary was aware that, in addition to medical supplies, the plane might transport Bibles and religious tracts translated into local languages. Had the Secretary not ordered the plane to be given to the church, it would have been sold at a very reasonable cost to a nonprofit organization that helps teach young people the fundamentals of piloting and maintaining aircraft.

Which of the following parties would be most likely to have standing to sue to prevent the Secretary of State from making the gift to the church?

1. A taxpayer.
2. A member of the nonprofit flying organization.

Answer 3

A member of the non-profit organization

A member of the nonprofit flying association is most likely to have standing to challenge the gift. To have standing to challenge government action on constitutional grounds, a person must show that he has a concrete stake in the outcome of the litigation. This is to ensure adequate presentation of the issues. To have such a stake, the potential litigant must show that he has an injury in fact caused by the government that is more than the theoretical injury that all persons suffer when the government engages in unconstitutional acts, and that a decision in his favor will eliminate his harm. A member of the flying association can show both components here: If the gift is unconstitutional, the association has suffered more than a theoretical injury—it has lost the opportunity to purchase the airplane from the federal government at a good price, and a decision in the club’s favor will eliminate the injury because it will then be able to purchase the plane. Thus, the member of the nonprofit flying organization has standing.

2. is incorrect because a person’s injury as a taxpayer is generally held to be insufficient to establish standing. There is an exception where the federal government acts under the taxing and spending power and that action allegedly violates the Establishment Clause, but the government action here falls under the Property Clause and not the Spending Clause; thus, the exception does not apply.

Question 4

A town adopted an ordinance providing that a person must have been a resident of the town for at least one year to be eligible to vote in school board elections. A resident who moved to the town seven months ago attempted to register to vote in the school board elections scheduled for the next month. However, the town clerk refused to register the resident because he will not have resided in the town for a full year prior to the election. The resident filed a class action suit on behalf of all of the new residents of the town, challenging the validity of the one-year residency requirement.

Which of the following statements is correct?

1. If the resident’s suit is not heard before the election, it will be dismissed as moot, because the resident will have met the residency requirement by the time of the next annual election.
2. The resident will prevail even if the matter is not decided until after next month’s election.
3. As long as there is some legitimate purpose for the one-year residency requirement, such as the need to prepare voting lists, the residency requirement will be upheld.
4. The resident will lose because one-year residency requirements have been held permissible restrictions on the right to vote in local elections.

Answer 4

The resident will prevail even if the matter is not decided until after the election, because the suit is not moot and the residency requirement is unconstitutional.

About mootness: 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.

About temporal restrictions to vote (Strict scrutiny): 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.

Question 5

Commercial fishing has long been one of the major industries of a coastal state. To protect the fishing industry and to promote the general welfare of the state’s citizens, the legislature of the state enacted statutes requiring licenses for commercial fishing. An applicant for the license must pay a $300 fee and establish that he has been engaged in commercial fishing in the waters of the state for 10 years. A commercial fisherman residing in a neighboring state frequently takes his fishing boat up the coast. His favorite spot is approximately two miles off the coast of the legislating state.

If the commercial fisherman challenges the constitutionality of the legislating state’s statutes, should the court find the statutes constitutional?

1. Yes, because Congress has not enacted legislation regarding the subject matter of the statutes.
2. Yes, because economic and social regulations are presumed valid.
3. No, because less restrictive means are available.
4. No, because Congress has exclusive power to regulate foreign commerce, which includes commercial ocean fishing.

Answer 5

No, because less restrictive means are available.

The court should not find the statutes constitutional, because less restrictive means are available. The statutes violate the Privileges and Immunities Clause of Article IV, which prohibits discrimination against nonresidents with respect to essential activities (e.g., pursuing a livelihood) unless (i) the discrimination is closely related to a substantial state purpose, and (ii) less restrictive means are not available. Here, other controls could be placed on fishing without discriminating against out-of-state fishermen.

(1) is wrong because, even though Congress has not acted in this area, the statutes would still be unconstitutional in light of the negative implications of the “dormant” Commerce Clause. Congressional silence is, therefore, irrelevant. (2) states a due process test which, even if applicable, would not preclude a finding of unconstitutionality on other grounds. (4) is wrong because the activity here does not involve foreign commerce—this is a dispute between one state and a citizen of another state.

Question 6

A state law prohibits physicians from practicing medicine within the state without a state license. Among other things, the grant of a state license requires a physician to have been a resident of the state for at least one year. A physician moved to the state from a nearby state and immediately applied for a license to practice medicine. Although otherwise qualified, the physician’s request for a license was denied based on the residency requirement. The physician brought suit, alleging that the residency requirement violated the United States Constitution.

Will the physician likely succeed?

1. Yes, because the requirement violates the Privileges and Immunities Clause of Article IV.
2. Yes, because the requirement violates the Privileges or Immunities Clause of the Fourteenth Amendment.
3. Yes, because the requirement violates the Due Process Clause of the Fourteenth Amendment.
4. No, because the state has a compelling interest in furthering the welfare of its residents.

Answer 6

Yes, because the requirement violates the Privileges or Immunities Clause of the Fourteenth Amendment.

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. (1) 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. (3) is not as good an answer as (2) because the law here involves discrimination based on duration of residency—making the Privileges or Immunities Clause more direct. (D4) is incorrect because duration of residency does not impact the welfare of residents.

Question 7

After a state supreme court overturned the conviction in a murder case for failure to give proper Miranda warnings, a reporter asked the murder victim’s father to comment on the case as he exited the supreme court building. The father made the following statement: “Each one of the so-called supreme court justices is worse than a murderer, because they make it possible for more sons and daughters to be murdered. I’d like to see every one of them strung up, like they should have done to the creep who was set free, and if someone will give me a rope I’ll go in there and do it myself.”

A state statute proscribes, with criminal penalties, “the making of any threat to the life or safety of a public official for any act the official performed as part of the official’s duties in office.”

Which of the following is correct regarding the statute?

1. The victim’s father could constitutionally be punished under the statute, but only if the state supreme court justices heard the threats he made.
2. The victim’s father could constitutionally be punished under the statute.
3. The victim’s father could not be constitutionally punished under these circumstances, but the statute is constitutional on its face.
4. The statute is unconstitutional on its face.

Answer 7

The victim’s father could not be constitutionally punished under these circumstances, but the statute is constitutional on its face.

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 (2) is incorrect. (1) is incorrect because the father cannot constitutionally be punished for the reasons stated above. Moreover, whether the justices actually heard the threats would be irrelevant if the threats were otherwise punishable. (4) is incorrect because the statute is valid on its face, as discussed above.

Question 8

After the failure of a state bill granting gay and lesbian couples the right to marry, 30 students from a local university marched on the state capitol to protest, carrying signs with slogans such as “let gays marry” and “no religious tyranny.” As they marched, about 15 people began following them, shouting anti-gay remarks. At the capitol building, they were met by 50 officers in full riot gear. The leader of the students addressed his followers in the park across the street, vigorously denouncing the legislature’s actions, which caused the counter-protestors to become more vocal. The officer in charge told the leader that he must end his speech because a riot was about to start. The leader refused and was arrested and convicted of disorderly conduct.

If the leader appeals his conviction on constitutional grounds, will the conviction be reversed?

1. Yes, because the leader’s arrest constituted an interference with his First Amendment right to free speech.
2. Yes, because the leader’s arrest constituted undue interference with the students’ right to peaceably assemble under the First Amendment.
3. No, because the leader’s speech caused an immediate and substantial threat to public order.
4. No, because the leader had a duty to obey the police officer since other avenues of communication likely were available.

Answer 8

Yes, because the leader’s arrest constituted an interference with his First Amendment right to free speech.

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. Hence, (3) is incorrect. (2) is incorrect. No one in the audience has raised any constitutional argument. The speaker probably cannot raise the audience members’ First Amendment rights in this situation. (4) is incorrect. The state may not limit access to a public forum on the sole basis that there are other times and places where the right of free speech can be exercised. The state must show a more substantial reason.

Question 9

A city’s water board election laws provide that, although members of the board are elected at large, one member of the board is required to live within each of the five designated water districts within the city. The city’s population was more or less evenly distributed among the districts when this election law was enacted. A resident and registered voter of the city investigated the district residency requirement and discovered that most of the city’s newer residents had moved into the same two water districts, so that the city’s population was no longer evenly distributed among the five water districts. Instead, 80% of the city’s residents lived within its central and eastern water districts, while the other 20% of the city’s residents were scattered among its three other, more rural, districts.

If the resident files suit in federal court challenging the constitutionality of the residency requirement, how will the court most likely rule?

1. The residency requirement is unconstitutional because it impairs the voters’ equal protection rights, in that it gives the voters in the less populous districts more effective representation on the water board.
2. The residency requirement is unconstitutional because it violates the candidates’ equal protection rights.
3. The residency requirement is constitutionally permissible because the water board members do not exercise legislative power.
4. The residency requirement is constitutionally permissible because the water board members are elected at large.

Answer 9

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.

Question 10

A critically acclaimed movie that had received a number of awards opened in a small town. The film had portrayals of nudity and scenes involving sexuality, but its advertising was very tasteful and concentrated on its critical acclaim and its receipt of seven Academy Award nominations. Nevertheless, when the movie opened in the small town, there was a public outcry against it, including picketing. The town, which had been founded in the late nineteenth century by a fundamentalist religious group, remained very conservative and highly religious, and was the only community in the state where a consensus of the community would find the movie to be obscene. The town prosecutor went to the local court seeking an injunction to halt the showing of the movie. The theater owner refused to voluntarily stop showing the film and appeared in court to defend against the proposed injunction.

What is the owner’s best defense?

1. The proper “community standards” should be those of the entire state rather than of the town.
2. The film has some redeeming social value.
3. The Establishment Clause of the First Amendment prevents the state from enforcing a particular set of religious beliefs.
4. The film has proven artistic merit.

Answer 10

The film has proven artistic merit.

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. Thus, (D) is his best argument. (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.

Question 11

A federal statute just signed into law by the President provided that school districts no longer needed to recognize the tenure of elementary school teachers—all tenured teachers would lose their status and would be treated the same as nontenured teachers. The effect of the law would be to allow all tenured teachers to be fired more easily if their performance was not adequate. The law also allowed the salaries of tenured teachers to be lowered, at least until a new contract with the teachers could be negotiated. The law had a two-year grace period before it was to take effect, to give schools and teachers time to adjust to the law; however, it specifically provided that once it is in effect, school board actions under the law supersede any existing contract terms.

A public elementary school district is in the first year of a three-year union contract with its teachers. The school board has stated that it plans to abolish tenured positions as soon as the law takes effect. The union, believing that numerous terms of the contract will be invalidated when the law takes effect, filed an action in federal court on behalf of the teachers, asking for an injunction to prevent the school board from abolishing tenured positions and for a declaratory judgment stating that the law is invalid.

Should the federal court hear the case?

Does the union has standing?

Does this cover a Contract Clause case?

Answer 11

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.

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.

The Contract Clause won’t work here because it 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.

Question 12

A cattle-producing state adopted a statute requiring any food service business operating in the state to serve beef raised in the United States. A licensed hot dog vendor who worked at a football field within the state and who had been buying hot dogs made with foreign beef for the past several years estimated that switching to an all-beef hot dog made from United States beef would reduce his profits by 10%. An attorney hired by the vendor to challenge the statute discovered during research into the case that most of the footballs used at the football field at which the vendor worked were made of foreign leather.

Which of the following grounds is the vendor’s best argument against the constitutionality of the state statute?

1. The statute burdens foreign commerce.
2. The statute violates equal protection guarantees because it is not rational to prohibit the sale of foreign beef but not foreign leather.
3. The statute substantially interferes with the vendor’s right to earn a living under the Privileges or Immunities Clause of the Fourteenth Amendment.
4. The statute constitutes a taking without due process of law.

Answer 12

The best argument against the constitutionality of the state statute is that it burdens foreign commerce. For all practical purposes, the power to regulate foreign commerce lies exclusively with Congress. Therefore, a state that adopts legislation requiring private vendors to favor United States products over foreign products, as the state did here, may be acting outside the scope of its powers. (B) is incorrect because the statute is a rational method of protecting local beef interests. The rational basis standard applies when an economic law, such as the one here, is challenged on equal protection grounds. Under the standard, the Supreme Court will usually defer to a legislature’s decision that the law is rational notwithstanding the fact that the statute is underinclusive. In other words, the law need not address all of the problems that prompted its passage; it will be upheld even if it is only a “first step” toward a legitimate goal. Here, prohibiting the use of foreign beef appears to be a rational method of protecting state beef raisers. Thus, it is irrelevant that the statute is underinclusive in that it allows the use of both United States beef and foreign leather. (C) is incorrect because the right to earn a living is not a privilege under the Fourteenth Amendment, which protects against infringement of rights of national citizenship, such as the right to petition Congress for redress. (Neither would the statute violate the Privileges and Immunities Clause of Article IV, because that clause only prohibits discrimination against citizens of other states and the statute here treats citizens of all states the same.) (D) is incorrect because the vendor had all of the process that was due him. Because the government action here was a general act and not an individualized adjudication, the vendor had no right to an individual hearing; the normal procedure for adopting a statute is all the process that is due.

Question 13

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To increase tourism, a city began sponsoring laser light shows, which proved to be very popular. Several charitable organizations received permission from the council to sponsor a show and charge admission to raise money to help support their causes. One of them hired a famous laser light artist to give their show. When the artist arrived, he began setting up his lasers for the show. A city official soon stopped him, informing him that he could use only the city’s lasers because the city feared that outsiders might use powerful lasers that could cause eye damage to viewers. The artist told the charitable organization that had hired him that the success of his art depends on the power of his lasers and that he could not produce desirable effects using the city’s lasers. The charitable organization appealed to the city, but the city held fast to its rule requiring all laser light artists to use the city’s lasers.

If the charitable organization files an action against the city, how will the court most likely rule?

1. Find for the charitable organization, because art is protected by the First Amendment and the city rule interferes with the artist’s freedom of expression.
2. Find for the charitable organization, because the city rule is not the least restrictive method for achieving the city’s goals.
3. Find for the city, because the laser light show is not speech and therefore is not protected by the First Amendment.
4. Find for the city, because the rule is a reasonable time, place, and manner restriction.

Answer 13

Find for the city, because the rule is a reasonable time, place, and manner restriction.

The city will prevail because its rule is a reasonable time, place, and manner restriction. Speech protected by the First Amendment includes not only verbal communication, but also conduct that is undertaken to communicate an idea. The laser light show, like other art, probably is protected speech. While the content of speech generally cannot be limited, the conduct associated with speech in public forums can be regulated by reasonable time, place, and manner restrictions. To be valid, the regulation must be content-neutral, narrowly tailored to serve an important government interest, and leave open alternative channels of communication. The city’s rule meets these requirements: The types of images displayed are not controlled, just the means of showing them; the rule is narrowly tailored because it does not regulate substantially more speech than is necessary to further an important government interest (here, preventing eye damage); and alternative channels of communication are available because the artist can use the city’s equipment, albeit with less spectacular results. (A) is incorrect because while the artist’s art is protected by the First Amendment, it may still be regulated by reasonable time, place, and manner regulations, as indicated above. (B) is incorrect because it states the wrong standard. To be valid, a time, place, and manner regulation need not be the least restrictive means for achieving the desired result, but rather only narrowly tailored to the result. [See Ward v. Rock Against Racism (1989)] (C) is incorrect because art, including performance art such as the laser light show, is protected by the First Amendment. As discussed above, the First Amendment guarantee of freedom of speech protects more than merely spoken or written words; it includes conduct and other forms of expression undertaken to communicate an idea.

Question 14

To reduce deer overpopulation in state forests, state Blue adopted a statute allowing anyone with a valid deer hunting license from any state to hunt deer within state Blue. The act also imposed a $0.25 per pound tax on each deer killed within the state. Funds from the tax were earmarked to support state forest land. State Red is adjacent to state Blue and also has an overabundance of deer. To encourage hunting, state Red does not impose a tax on deer taken from its forests.

A hunter who is a resident of state Red and who is licensed to hunt there earns his living by supplying wild game to several high-end restaurants in state Red. While legally hunting deer within state Red, the hunter inadvertently crossed the state line and killed a deer in state Blue. Upon hearing the hunter’s shot, a state Blue game warden arrived at the scene, approximated the weight of the kill, and handed the hunter a tax bill based on the approximation. The bill provided a method for challenging the approximated weight of the deer, but the hunter refused to pay any tax on his kill. He instead filed suit in federal court to enjoin collection of the state Blue tax on constitutional grounds.

Which of the following results is most likely?

1. The hunter will prevail because the tax is invalid under the Commerce Clause.
2. The hunter will prevail because the tax is invalid under the Interstate Privileges and Immunities Clause of Article IV, Section 2.
3. State Blue will prevail because the tax is valid under the Commerce Clause.
4. State Blue will prevail because the tax is valid under the Import-Export Clause.

Answer 14

State Blue will prevail because the tax is valid under the Commerce Clause.

A tax is valid under the Commerce Clause if: (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. The state of Blue tax is applicable equally to residents of Blue and nonresidents. Thus, there is no discrimination against interstate commerce. Because the taxed deer are taken from within the state, there is a substantial nexus between the activity taxed and the taxing state. There is fair apportionment if a tax is based on the extent of the taxable activity or property in the state. Here, the killing of a deer within state Blue obviously occurs entirely within the state. Thus, the state tax is fairly apportioned. Also, there is a fair relationship between the tax and any benefits provided by the taxing state, because the state is permitting those engaged in hunting to take deer from its forest lands, in return for a rather modest amount of $0.25 per pound. That revenue, in turn, is used to support state Blue forest land, which provides hunters with a place to hunt. Thus, the state tax meets all of the requirements for validity under the Commerce Clause. (A) incorrectly states that the tax is invalid under the Commerce Clause. (B) is incorrect because the Interstate Privileges and Immunities Clause prohibits discrimination by a state against nonresidents when such discrimination involves fundamental rights, such as those involving important commercial activities. Here, while the tax may affect the hunter’s commercial activity (because he earns a living from hunting and selling meat), the tax treats residents and nonresidents equally. Thus, there is no constitutional violation under the Privileges and Immunities Clause. (D) is incorrect because the Import-Export Clause applies to the authority of a state to tax foreign commerce. This question here does not deal with imported or exported goods. Thus, the Import-Export Clause is inapplicable to these facts.

Question 15

A foreign student who had entered the United States on a student visa four years ago was notified by federal immigration authorities that he was subject to being deported because his visa had expired. Federal law provided that an alien who is subject to being deported has the right to appear before an administrative officer appointed by the Attorney General’s office for a hearing on whether he should be deported. This officer, appointed by the executive branch of the government, has the right under law to make a final order concerning whether the alien should be deported. After a hearing, the administrative officer entered an order allowing the student to remain in the United States as a permanent resident.

However, a congressional rule permitted the House of Representatives, by resolution, to deport “undesirable aliens.” After the administrative judge entered his order, the House passed a resolution that the student should be deported. The student petitioned the federal court to declare the legislative resolution invalid.

Should the court find the resolution to be valid?

1. Yes, because Congress has plenary powers with regard to aliens and naturalization.
2. Yes, because aliens are not “citizens” within the meaning of the Fourteenth Amendment.
3. No, because the federal law removed congressional power with regard to aliens in this circumstance, and the resolution of the House violates the separation of powers doctrine.
4. No, because the student was denied due process when he was not given a hearing before the House of Representatives.

Answer 15

No, because the federal law removed congressional power with regard to aliens in this circumstance, and the resolution of the House violates the separation of powers doctrine.

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.

Question 16

Congress enacted a statute that purported to ban all discrimination against African-Americans in any commercial transaction taking place within the United States.

Would the statute most likely be held constitutional?

1. Yes, under Thirteenth Amendment provisions barring badges or incidents of slavery.
2. Yes, because the federal government has an important interest in furthering the equal protection provisions of the Fourteenth Amendment.
3. No, because Congress’s powers under the Commerce Clause do not extend so far as the statute would require.
4. No, because commercial transactions are not among the privileges or immunities of national citizenship.

Answer 16

Yes, under Thirteenth Amendment provisions barring badges or incidents of slavery.

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.

Question 17

A man who belonged to an ancient religion whose rituals require the use of bald eagle feathers traveled to an area where bald eagles were known to roost. After searching the area, he found a fallen eagle feather and returned home. A few weeks later, the man showed the feather to an acquaintance, who happened to be a state park ranger, and explained how the feather was obtained. The ranger informed the man that a state anti-poaching law makes any possession of a bald eagle feather without a special permit a crime. The ranger then cited the man for possession of the feather and confiscated it.

At the man’s trial for violating the state bald eagle feather possession statute, which of the following constitutional arguments is most appropriate for the prosecution to make?

1. The statute is a neutral law that only incidentally burdens the man’s rights under the First Amendment.
2. The Free Exercise Clause applies only to belief and not to conduct.
3. The government has a substantial and important interest in protecting bald eagles and there is no other feasible way to achieve the legislative purpose.
4. Making an exception for the man on religious grounds would violate the Establishment Clause of the First Amendment.

Answer 17

The statute is a neutral law that only incidentally burdens the man’s rights under the First Amendment.

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.

Question 18

A public high school publishes a weekly newspaper as part of its journalism class. The student editor-in-chief of the paper wrote an article supporting the legalization of marijuana and showed it to his faculty advisor. The advisor told the editor that while this issue was receiving a lot of media attention in their community, in order to discourage drug use, school policy prohibited the paper from including any drug-related articles. The advisor then told the editor not to include the article in any edition of the paper.

A few days later, the editor and faculty advisor were preparing to upload the electronic files for the paper to their printer. The advisor was momentarily called away, and the editor quickly replaced an article on clothing styles with his article on the legalization of marijuana. When the paper came out, the article was the talk of the school. After a brief investigation, the student was removed from his position as editor-in-chief. The student brought suit against the school, claiming that his removal was a violation of his First Amendment rights under color of law.

How should the court rule on this issue?

1. For the high school, because the newspaper involved was a public high school newspaper published as part of a journalism class.
2. For the high school, because students do not have constitutional rights while the school is acting as parens patriae.
3. For the student, because the issue involved a matter of public concern.
4. For the student, unless the school can establish that his removal was necessary to achieve a compelling interest.

Answer 18

For the high school, because the newspaper involved was a public high school newspaper published as part of a journalism class.

The court should rule for the high school. 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. 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. (B) is incorrect because it is overbroad. While students do not enjoy full constitutional rights within the school setting, they do have some protection. For example, the Supreme Court has held that students had a First Amendment right to wear black armbands in school in protest of the Vietnam War. [Tinker v. Des Moines Independent School District (1969)] (C) is incorrect because it is irrelevant. The fact that the legalization of marijuana is a public concern does not address the issue of whether speech about it may be banned from a nonpublic forum. (D) is incorrect because it implies the use of the wrong test. While generally content regulations of speech are permitted only if they are necessary to achieve a compelling interest, this is not true of time, place, and manner regulations. The appropriate test for such regulations depends on whether a public forum is involved, and, as discussed above, when a nonpublic forum is involved, a content regulation will be upheld if it is viewpoint neutral and reasonably related to a legitimate government purpose.

Question 19

The council of a city with a rich and diverse heritage established a city-run ethnic sculpture garden. City residents and groups were encouraged to erect statues and other displays in the garden depicting ethnic, cultural, and religious heritages. Many of the displays included religious symbols. The city maintained the property and administered the affairs of the garden. While the garden was paid for primarily by a small admission fee, the city contributed about $1,000 each year for the garden’s upkeep from general city funds.

If a local citizen brings an action in federal court challenging the city’s funding of the garden, how should the court rule?

1. Find the funding constitutional, because the amount of city funds spent on the garden is de minimis.
2. Find the funding constitutional, because the garden also includes secular displays depicting the city’s ethnic and cultural heritage.
3. Find the funding unconstitutional, because the city is helping to maintain religious symbols in violation of the First Amendment.
4. Find the funding unconstitutional, because the city does not have a compelling interest in running the garden.

Answer 19

Find the funding constitutional, because the garden also includes secular displays depicting the city’s ethnic and cultural heritage.

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. Therefore, (B) is correct and (C) is incorrect. [See Lynch v. Donnelly (1984)—permitting government-maintained Christmas display that includes religious as well as nonreligious symbols] (A) is incorrect because if the garden did fail one of the above prongs, the fact that only a relatively small amount of municipal funds were used would not remedy the constitutional violation; de minimis is not a defense. (D) is incorrect because it states the wrong test. Establishment Clause cases not involving a sect preference are resolved under the above three-part test and not under the compelling interest test.

Question 20

A church developed a sex education program for children of church members, ages 12 to 16. The program included lectures and slides, including some slides depicting explicit sexual activity between males and females. Parents would be required to give their consent before any child could participate. The program was conducted by the church board, consisting of the minister, a doctor, and a psychologist. The church board called the program “an integral part of involving the church in the real world of a teenager.”

A state statute provides in relevant part, “It is unlawful to sell, give, or display to any person under the age of 17 any lewd or obscene article, picture, or depiction.”

If the church board members are convicted of violating the above statute and they appeal, what is the likely outcome?

1. Their convictions will be reversed because the freedom to engage in conduct connected with one’s religion is absolutely protected under the First and Fourteenth Amendments.
2. Their convictions will be reversed if it can be shown that the statute is being applied only to interfere with religion.
3. Their convictions will be upheld because the state’s interest in regulating activities involving children necessarily outweighs any rights of the church board members under the Free Exercise Clause of the First Amendment.
4. Their convictions will be upheld because the members of the church board lack standing to challenge the statute on “free exercise of religion” grounds.

Answer 20

Their convictions will be reversed if it can be shown that the statute is being applied only to interfere with religion.

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. (A) is incorrect because, as stated above, a person’s conduct can be regulated by a generally applicable conduct regulation; religiously motivated conduct has very narrow protection. (C) is incorrect because it implies that the court will balance the interests involved in determining the validity of the application of the statute here. Since Employment Division v. Smith (1990), the Court has abandoned the balancing approach in favor of the approach discussed above. (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.

Question 21

Shortly after a professor at a state university completed her second year of teaching, she was informed that her contract was not being renewed for the following year. By state law, a professor does not acquire tenure until after she has completed three consecutive years of teaching. Before acquiring tenure, state law does not require either a statement of reasons or a hearing when a professor’s contract is not renewed, and the university administration refused to give either to the professor.

Which of the following, if established, sets forth the strongest constitutional argument that the professor could make to compel the university to furnish her a statement of reasons for the failure to rehire her and an opportunity for the hearing?

1. She purchased a home in anticipation of renewal of her contract, because most professors who had taught two years were rehired.
2. She had been voted the most popular professor on campus in each of her first two years of teaching.
3. She was the only teacher at the university whose contract was not renewed that year.
4. There is evidence to indicate that the decision not to rehire the professor was not based on her ability to teach.

Answer 21

There is evidence to indicate that the decision not to rehire the professor was not based on her ability to teach.

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.

Question 23

A comprehensive federal health-care reform statute created a Federal Health Policy Board, which was directed to monitor the fees charged for various medical procedures covered by insurance. The board also had the power to subpoena records to determine whether fee increases were a true reflection of cost increases. Nothing in the statute provided for caps on fee increases.

Because of the continuing escalation of health-care costs while the statute was being debated, several states had passed health-care legislation on their own. One state passed legislation that prohibited most fee increases of 10% or more per year for specified health-care services covered by insurance, and created a health-care review board to regulate these costs and impose monetary penalties on health-care providers or insurers that tried to circumvent the cap.

Which of the following would be the best basis for finding the state provision unconstitutional?

1. The federal legislation was passed after the state legislation and therefore supersedes it.
2. The Federal Health Policy Board was constituted with many of the same powers as the state board but was not given the power to impose sanctions.
3. The state provision impairs existing contracts between health-care providers and insurers in violation of the Contract Clause.
4. Health-care fee caps create an undue burden on interstate commerce even in the absence of federal regulation.

Answer 23

The Federal Health Policy Board was constituted with many of the same powers as the state board but was not given the power to impose sanctions.

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. The 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).