Missed questions

Question 1

A state bans the use of disposable diapers to reduce the volume of nonbiodegradable material in its landfills. The ban was a boon for diaper services within the state, but many parents of young children were displeased with the use of conventional diapers. With support from retail establishments that lost business from the disposable diaper ban, a grass roots coalition formed to fight the ban funded a study showing that the trucks and cleaning supplies used by diaper services within the state harmed the environment more than disposable diapers. The coalition and retailers then filed suit seeking to have the ban on disposable diapers declared unconstitutional.

If the court strikes down the statute, on which of the following constitutional provisions would its decision most likely be based?

EPC? DPC? Impairments of Contracts Clause? POI of 14th A?

Answer 1

The Due Process Clause.

It is a violation of substantive due process. Substantive due process tests the reasonableness of a statute; it prohibits arbitrary governmental action. Under substantive due process, when government action limits a fundamental right, the government must prove that the action is necessary to promote a compelling interest. If a fundamental right is not involved, the challenging party must prove that the act is not rationally related to any legitimate government interest. The retail sale of diapers is not a fundamental right, and so a challenger must prove that there is no rational basis for the statute. Almost any law can be justified under the rational basis standard. The law need not be the best law for accomplishing the government’s goal. Thus, even if it is true that the disposable diaper ban causes more pollution than it prevents, because the ban is rationally related to reducing the volume of trash in landfills, the challenge is unlikely to succeed. Nevertheless, none of the other choices states a viable ground for invalidating the statute

Question 2

Q 20

Contracts clause only applies to

Answer 2

state** laws which invalidate already existing contracts. The Contracts clause prevents state laws from retroactively and substantially impairing contract rights **unless govt act serves impt govt interest and narrowly tailored to promote that interest

Question 3

Who has burden of proof under the RBT? challenger or govt?

Answer 3

challlenger

Question 4

Who has burden of proof under the SS/IS? challenger or govt?

Answer 4

govt

Question 5

The Tenth Amendment prohibits Congress from:

Answer 5

Commandeering state officials

Question 6

Although the Tenth Amendment restricts Congress’s power to regulate the states, courts mostly likely WILL NOT strike down a regulation that subjects states or local governments to regulations that apply to both the public sector and the private sector on 10th grounds. (iow: 10th A wont be a defense)

Question 7

Police powers

In general, Congress lacks police power. However, a major exception is when Congress legislates for the District of Columbia, where Congress does have police powers

Question 8

he power to regulate foreign commerce lies exclusively with Congress, and Congress may delegate this power to the President.

Question 9

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

Question 10

The Contract Clause does not apply to the federal government.

Question 11

campaign contributions

While the government may limit the amount of contributions that an individual may contribute to a candidate’s campaign, it may not limit contributions to groups that lobby for or against matters before the legislature,

Answer 11

A city council passed an ordinance providing: “No person may contribute more than $100 annually to any group organized for the specific purpose of supporting or opposing referenda to be voted on by the city electorate or regularly engaging in such activities.”

If the ordinance is challenged in federal court, how should the court rule on the constitutionality of this ordinance?

A Strike it down, because it violates First Amendment rights of free speech and freedom of association.Strike it down, because it violates First Amendment rights of free speech and freedom of association.

B Strike it down as a violation of due process, because no hearing mechanism has been provided for.Strike it down as a violation of due process, because no hearing mechanism has been provided for.

C Uphold it, because the city council has a legitimate interest in controlling such contributions.Uphold it, because the city council has a legitimate interest in controlling such contributions.

D Dismiss the case, because it involves a political question and is thus a nonjusticiable matter.

Question 12

A Congressional committee was formed to conduct an investigation. The committee subpoenaed a man to appear before it to answer certain questions. The man appeared before the committee but refused to answer any questions. The committee notified the Speaker of the House of the man’s refusal to cooperate. The Speaker called a special session of the House. At the special session, a majority of the members of the House voted to order the Attorney General of the United States to prosecute the man pursuant to a federal statute that establishes the penalties for contempt of Congress.

Is the Attorney General constitutionally obligated to prosecute the man pursuant to the congressional order?

Answer 12

NO because The executive branch has sole discretion to prosecute.

NOTE: officials of the executive branch are not immune from prosecution relating to their duties.

Question 13

The President has absolute immunity from civil damages based on any action that the President took within his official responsibilities

Question 14

Under the Full Faith and Credit Clause of the United States Constitution, states must give full faith and credit to the judgment of another state if the judgment is

1. final,
2. on the merits, and
3. rendered by a court with jurisdiction.

Question 15

Under the one person, one vote principle, regarding congressional districts, __________.

Answer 15

almost exact mathematical equality between the congressional districts within a state is required

Question 16

Under the one person, one vote principle, regarding state gov’t districts, __________.

Answer 16

almost exact mathematical equality between districts is NOT required

meaning a variance is allowed (i.e. a variance of 3%… or even 16% has been found valid!)

Question 17

Under First Amendement, the press and broadcasting companies can be subject to general business regulations and taxes, but generally may not be singled out for a special tax.

Moreover, a tax impacting on the press or a subpart of the press cannot be based on the content of the publication absent a compelling justification.

Question 18

The Contracts Clause prohibits states from retroactively and substantially impairing contract rights unless the governmental act serves an important and legitimate government interest and is a reasonable and narrowly tailored means of promoting that interest.

Question 19

The Equal Protection Clause prohibits only government infringement. This does not mean that only direct government action is proscribed. Private action may constitute state action where the private actor is performing an exclusive state function or the government is significantly involved in the private actor’s activities.

Answer 19

A philanthropist told his friend, who was a state governor, that he planned to build a museum. The governor thought that the museum would bolster the state’s tourism industry and offered to arrange to have the state purchase land and grant it to the museum to enable the philanthropist to build a bigger museum with his money than originally planned. The philanthropist agreed, and the museum was built.

The philanthropist undertook the hiring of the museum’s senior staff. He was of German descent and was ashamed of Germany’s actions during World War II. To assuage his own conscience, he refused to hire anyone whom he believed to be of German descent. A restoration expert applied for a job as chief curator of the museum, but the philanthropist refused to hire him because of his German background. The restoration expert discovered the philanthropist’s rationale and brings suit against the museum, claiming that the hiring practice violates his constitutional rights.

How is the court most likely to rule?

A - The policy is constitutional, because the museum is a private entity and so may constitutionally hire and fire as it desires.

Question 20

Age is not a suspect or quasi-suspect class, it passes RBT

Question 21

A state legislature enacted a program by which students in the public schools could request instruction as to specific religions and religious beliefs, and thus participate in public school programs in which leaders of the religions involved gave religious instruction and performed religious practices on school grounds. The parent of a student who objected to religion being taught as part of the public school curriculum brought suit in federal court, seeking to have the program halted on First Amendment grounds.

Assuming the parent is a proper party to bring the suit, is the court likely to find the program violates the First Amendment?

A - No, because participation in the program is by request

B - No, because religious leaders are providing the instruction, there is no excessive entanglement.

C - Yes, because the program is not neutral toward religion and there is no long history of such religious instruction in public schools.

D - Yes, because the primary effect of the program is to advance religion.

Answer 21

C - Yes, because the program is not neutral toward religion and there is no long history of such religious instruction in public schools.

It is the strongest argument because it reflects two of the criteria the Supreme Court uses in assessing whether government action violates the Establishment Clause: Is the government action neutral toward religion, and if not, is there a long history of the action being accepted or would the Founding Fathers have found the government action to be acceptable?

(B) is incorrect because it relies on an element of a test (no excessive entanglements) that is no longer used.

Question 22

Generally, the press has a right to publish information about a matter of public concern, and this right can be restricted only by a sanction that is narrowly tailored to further a state interest of the highest order.

The right applies even if the information has been unlawfully obtained in the first instance, as long as

1. the speech relates to a matter of public concern,
2. the publisher did not obtain it unlawfully or know who did, and
3. the original speaker’s privacy expectations are low.

Question 23

A plaintiff bringing an action in a state trial court is required to exhaust its state appellate remedies before seeking review in federal courts, even where federal issues are involved

state trial ct → state appellate ct

a federal court of appeals never hears appeals from a state trial court.

a party may file a petition of certiorari only from a decision of the highest court of the state where a state statute allegedly violates the United States Constitution.

Answer 23

A state prohibited the sale of heated grips for motorcycles within its borders to discourage motorcyclists from riding in dangerously cold conditions. The owner of a cycle shop that sells heated grips within the state that are purchased from an out-of-state manufacturer seeks an injunction in state court prohibiting the state from enforcing its statute. The owner claims that the statute unreasonably interferes with interstate commerce.

If the state court rules that the relevant statute is valid and denies injunctive relief, which of the following is the proper next step for the owner to take to obtain review of the state court decision?

A - Appeal to the state appellate courts.

Question 24

The President’s constitutional power to pardon prisoners extends only to those convicted of federal offenses.

Answer 24

To gain progress on critical treaty negotiations with another country, the President issued an official pardon to the leader of a radical group who was in a state prison after being convicted of a violent crime in the state. The President directed the governor of the state to free the leader but the governor refused. The Justice Department brought an action in federal district court seeking an order compelling his release.

How is the federal court most likely to rule?

For the state, b/c President’s constitutional power to pardon prisoners extends only to those convicted of federal offenses

Question 25

The Due Process Clause of the Fifth Amendment protects against action by the federal government. Although not expressly stated, this clause also provides an equal protection guarantee against federal action that generally applies to a similar extent that the Fourteenth Amendment Equal Protection Clause applies to the states.

Answer 25

The National Park Service recently created a new personnel level for field employees, which became the highest salaried position available to Park Service field employees. The position is restricted to employees over six feet in height. A female ranger who is five feet, three inches tall seeks your advice as to whether she can challenge the validity of the height restriction in federal court.

If you decide to file suit on her behalf, which of the following would be your strongest argument against the validity of the restriction?

A - Because most women are less than six feet tall, the restriction is unconstitutional as a violation of the Equal Rights Amendment.

B - Because most women are less than six feet tall, the restriction is an invalid discrimination on the basis of gender in violation of the Due Process Clause of the Fifth Amendment.

C - Because most women are less than six feet tall, the restriction is an invalid gender-based discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment.

D - The restriction denies the ranger a property right without an opportunity for a hearing before a neutral decisionmaker, in violation of the Due Process Clause of the Fifth Amendment.

(C) is incorrect because the Fourteenth Amendment is applicable only to states and not to the federal gov’t

Question 26

Laws that are designed to protect local businesses against interstate competition generally will be invalidated.

Answer 26

A state study shows that computer chip manufacturing has decreased 60% in the past five years due to a large supply of foreign chips entering the state. To prevent the complete loss of computer chip manufacturing, the state enacted legislation requiring that at least 50% of the units sold by electronic products retailers within the state incorporate chips manufactured within the state. The owner of a chain of computer stores in the state sells electronic devices manufactured entirely in other states.

If the computer store owner challenges the state legislation on constitutional grounds, will she likely prevail?

Yes, because the legislation discriminates against out-of-state commercial activity

There is no such limit on units that can be sold that utilize locally manufactured chips. This law was enacted to encourage the development of local manufacturing operations. Because this law is designed to protect local businesses against interstate competition, it should fail a challenge under the Commerce Clause.

Question 27

An industrial city in the Midwest had approximately 300,000 inhabitants, and about half of them were members of a recognized racial minority. The latest census figures indicated that 33,501 minority residents of the city could be classified as “poor” under federal poverty guidelines. In contrast, only 7,328 of the approximately 150,000 nonminority residents of the city could be classified as “poor.” To combat a budget deficit, the city’s 10-member city council, including no minority members and no poor members, decided to raise bus fares during rush hour periods from 80 cents to $1. Because poor people and members of minority groups placed greater reliance on the city’s bus lines than did the bulk of the nonpoor and nonminority population (many of whom drove to work), the effect of the transit fare increase was hardest on the poor and minority communities. Several activist groups representing the poor, various minority organizations, and some community action coalitions vowed to fight the fare increase in federal court.

Which of the following statements most accurately describes the constitutional status of the fare increase?

A The fare increase is unconstitutional because the city council is composed solely of nonpoor and nonminority members who cannot adequately represent the interests of poor persons, who need low bus fares to survive.

B The fare increase is unconstitutional, because the city cannot show that the resulting disparate impact of the fare increase is necessary for a compelling state interest.

C The fare increase is constitutional, because there is no evidence that the city council acted irrationally or was motivated by an intent to discriminate on the basis of race.

D The fare increase is constitutional, because a political question is involved and fares and fees may be increased if the city council deems such increases appropriate to cure deficits.

Answer 27

C The fare increase is constitutional, because there is no evidence that the city council acted irrationally or was motivated by an intent to discriminate on the basis of race.

The fare increase probably will be upheld because the action undertaken by the city council will not require strict scrutiny.

most classifications, including those based on income level, are reviewed under the rational basis standard and will be upheld unless they bear no rational relationship to any conceivable legitimate government interest.

Here, the fare increase could be challenged on the ground that a suspect classification (race) is involved.

However, the mere fact that a governmental action has a discriminatory effect is not sufficient to trigger strict scrutiny. There must be intent to discriminate on the part of the government. When the law does not discriminate on its face and is not applied in a discriminatory manner, a suspect classification will be found only if the lawmaking body enacted or maintained the law for a discriminatory purpose.

While statistical evidence is admissible that the law has a disproportionate impact on one class of persons, such evidence will almost never be sufficient by itself to prove that the government had a discriminatory purpose in passing a law.

Question 28

On completion of a major expansion project, a city’s public library board adopted a usage policy for the new meeting room that was added to the facility. To alleviate the scheduling burden on the staff if the meeting room were open to all groups, the policy provided that the meeting room was to be used only for “library purposes” by the library staff, the library board, or groups affiliated with the library, such as the library’s teen advisory group or volunteer “Friends of the Library” group. A local organization that promoted the political interests of an ethnic minority in and around the city requested use of the meeting room for an informational meeting that would be open to the public. Although no other event was scheduled for the meeting room at the time requested, the library director declined the organization’s request, citing the meeting room policy adopted by the library board. The organization filed suit in federal district court, challenging the library’s policy and seeking access to the meeting room.

How is the court likely to rule?

A The library’s policy is valid, because limiting the meeting room’s use to library purposes is reasonably related to a legitimate government purpose.

B The library’s policy is valid, because limiting the meeting room’s use to library purposes is narrowly tailored to serve a significant government interest.

C The library’s policy is not valid, because limiting the meeting room’s use to library purposes is restricting speech based on its content.

D The library’s policy is not valid unless there are alternative facilities in the area available for groups to hold meetings.

Answer 28

A The library’s policy is valid, because limiting the meeting room’s use to library purposes is reasonably related to a legitimate government purpose.

Here, a library meeting room is not a traditional public forum, and the library board has not designated it as a public forum because its use is limited to library groups for library purposes. Thus, the court would likely characterize it as a limited public forum or nonpublic forum. The restriction is viewpoint neutral (i.e., it is not an attempt to limit the presentation of issues to only one viewpoint), and it is rationally related to the legitimate objective of alleviating the staff’s scheduling burden. Hence, the library’s policy would probably be upheld by the court.

Question 29

In a diversity case, federal trial courts are required to apply a _______ when considering a motion for a new trial based on the excessiveness of the verdict.

Answer 29

state law standard

Question 30

Among the categories of speech that are not protected by the First Amendment is “fighting words.”

Which of the following statements is not true when it comes to regulation of fighting words?

A Fighting words-words or epithets that, when addressed to an ordinary citizen, are inherently likely to incite immediate physical retaliation-may be punished.

B Fighting words statutes are often struck down for overbreadth.

C True threats-statements meant to communicate an intent to place an individual or group in fear of bodily harm-may be punished.

D Hate crime statutes may limit fighting words sanctions to cases in which the words seek to insult or provoke on the basis of race, religion, or sexual orientation.

Answer 30

D Hate crime statutes may limit fighting words sanctions to cases in which the words seek to insult or provoke on the basis of race, religion, or sexual orientation.

Question 31

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?

A The victim’s father could constitutionally be punished under the statute, but only if the state supreme court justices heard the threats he made.

B The victim’s father could constitutionally be punished under the statute.

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

D The statute is unconstitutional on its face.

Answer 31

C 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 (B) is incorrect.

(A) 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.

(D) is incorrect because the statute is valid on its face, as discussed above.

Question 32

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?

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

B Yes, because the leader’s arrest constituted undue interference with the students’ right to peaceably assemble under the First Amendment.

C No, because the leader’s speech caused an immediate and substantial threat to public order.

D No, because the leader had a duty to obey the police officer since other avenues of communication likely were available.

Answer 32

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

Question 33

Because of budget shortfalls, a state governor recently signed a bill shortening the period for which state unemployment benefits are available. The defendant gave a speech across the street from the governor’s mansion, denouncing the law. In his speech, the defendant urged the crowd to rush across the street, drag the governor from his mansion, and show him how it feels to be homeless. A police officer who heard the defendant’s speech arrested the defendant and he was charged with violating a state statute that makes it a crime to “make a threat against any state official in the performance of his duty.”

If the defendant defends on constitutional grounds, the court will likely find the statute:

A Unconstitutional as a prior restraint.Unconstitutional as a prior restraint.

B Unconstitutional because it does not require clear and present danger of imminent lawless action.

C Constitutional if limited to true threats.

D Constitutional under the fighting words doctrine.

Answer 33

C Constitutional if limited to true threats.

(D) is incorrect because the law here does not appear to be a fighting words statute, e.g., personally abusive epithets inherently likely to incite an immediate response.

Question 34

A city council passed a zoning ordinance banning the operation of adult-oriented businesses in any “residential” or “commercial” zone of the city. Such businesses were allowed to operate only in areas zoned “industrial.” The ordinance was passed due to concerns about the “secondary effects” of adult bookstores, such as increases in petty crimes. The owner of a profitable chain of adult bookstores and video rental operations sought a zoning variance to allow the owner to locate a store in a commercial zone of the city. The variance was denied. The owner then filed suit in federal court, claiming the denial of the variance violated his free speech rights.

Is the owner likely to prevail?

A No, because speech-related activities may be regulated to prevent effects that are offensive to neighboring businesses and residents.

B No, because the ordinance is designed to serve a substantial governmental interest and does not unreasonably limit alternative avenues of communication.

C Yes, because the city is improperly regulating speech based on its content.

D Yes, because the city has not established that the owner is selling obscene materials.

Answer 34

B No, because the ordinance is designed to serve a substantial governmental interest and does not unreasonably limit alternative avenues of communication.

A) is incorrect because it is too broad. The type of regulation in this question cannot be based simply on what residents find “offensive”; only regulations that are based on substantial government interests and do not entirely prohibit the activity have been permitted by the Supreme Court.

(C) is incorrect because the regulation here, even if it is arguably content-based, is permissible because it is based on the legitimate local interest of preserving property values from the secondary effects of such businesses.

(D) is incorrect because a city may restrict the location of speech-related businesses under the circumstances here without having to establish that the content of the speech is obscene.

Question 35

Article II gives the President the power to manage the executive branch. Pursuant to this power, the President can use congressional funds to create advisory commissions that will recommend and promote policies.

Question 36

The export clause prohibits federal taxation of

Answer 36

• exported goods, which are goods leaving the U.S. and shipped to foreign countries and
• services and activities closely related to the export process—eg, insurance premiums paid to cover the shipment of exported goods (as seen here).

IOW: Congress does not have the power to tax exported goods or closely related services

Question 37

list (3)

A school search will only be upheld if

Answer 37

1. it offers a moderate chance of finding evidence of wrongdoing
2. the measures adopted to carry out the search are reasonably related to the objectives of the search - AND -
3. the search is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction

Question 38

school search

A public high school’s drug policy strictly prohibited the use, possession, or sale of any drug on school grounds, including any prescription or over-the-counter medication, unless supervised by a nurse. During lunch, the school principal observed a student ingesting two white pills. The student admitted to the principal that the pills were aspirins and had been given to her by a senior. School officials approached the senior and demanded to search her backpack. When no aspirins were found in the backpack, the officials required the senior to submit to a private physical search by the female school nurse. Some aspirins were subsequently found in the waistband of the senior’s gym shorts that she was wearing under her school uniform, and she was suspended. The senior’s mother sued school officials, claiming that the physical search violated her daughter’s Fourth Amendment rights against unreasonable searches and seizures. In response, the school officials filed a motion for summary judgment against the mother’s claim.

The facts above are stipulated to by the parties. Should the court grant the motion for summary judgment?

A Yes, because the search revealed that the senior had violated the drug policy.

B Yes, because the school officials had reasonable grounds to believe that the search was necessary.

C No, because the trier of fact could determine that the search was excessively intrusive in light of the nature of the infraction.

D No, because the trier of fact could determine that the school officials did not have probable cause to conduct a physical search based on the uncorroborated statement of a minor.

Answer 38

C No, because the trier of fact could determine that the search was excessively intrusive in light of the nature of the infraction.