Quiz Questions Flashcards
In brief, the historical context of Marbury v. Madison was as follows:
After the Federalists lost the 1800 Presidential election, Marbury, a Federalist, had been appointed a judge but his commission had not been delivered before the Democrat-Republicans took office and they refused to deliver it. Marbury filed suit in the Supreme Court to obtain the commission.
Which of the following propositions is most accurate? Marbury v. Madison held that:
Supreme Court has the authority to declare both acts of Congress and actions of the Executive branch to be unconstitutional.
Suppose there is strong opposition in Congress over the prospect that the President will deploy American troops to quell a civil war in a remote area of sub-Saharan Africa. The opponents want to pass a law prohibiting the President from deploying troops. Others in Congress support the deployment. They argue that any action by Congress to prohibit it would be an unconstitutional interference with the President’s power as Commander-in Chief.
Suppose further that the Speaker of the House and the Majority Leader of the Senate write a letter to the Supreme Court asking whether it would be unconstitutional for Congress to pass a statute prohibiting the deployment. Which of the following is the action most likely to be taken by the Court in response to the Leaders’ letter?
The Court will decline to answer the Leaders’ letter on grounds that to do so would violate the prohibition on advisory opinions.
In Massachusetts v. Environmental Protection Agency, the Court held that:
Massachusetts had standing because it passed each of the injury, causation, and redressability tests.
- Suppose the world has been afflicted by a new pandemic called APEX-23. Several pharmaceutical firms race to develop vaccines against APEX-23 but are only willing to bring them to market if Congress passes a law limiting their liability in the event of unanticipated side effects. Congress passes a bill (Immunity Act) granting the the Pharma companies the protection they seek. There is medical consensus that everyone is at extremely high risk for APEX-23 unless they are vaccinated. Suppose further that 40 individuals challenge the constitutionality of the Immunity Act on grounds that it violates the Due Process Clause because it allows injuries to occur without compensation. Which of the following is the action most likely to be taken by the Court in response to the 40 individuals’ lawsuit?
The Court will find that the 40 individuals have standing and that their lawsuit is justiciable because the plaintiffs pass the injury, causation, and redressability tests.
The Statement of Accounts Clause, Article I, § 9, cl. 7, requires that “a regular Statement of Account of the Receipts and Expenditures of all public Money shall be published from time to time.” Suppose the United States Navy keeps secret the amount of money spent on fossil fuel purchases, including petroleum for the fleet. Suppose further that Professor Schumm files a lawsuit in federal court challenging the constitutionality of the Navy’s secrecy policy. Which of the following is the action most likely to be taken by the Court in response to Professor Schumm’s lawsuit?
Professor Schumm’s lawsuit will be dismissed on grounds of standing, i.e., the lawsuit will be held not justiciable because it violates the prohibition of generalized grievances.
Suppose AI has progressed to the state where video surveillance of crowds captures the face of most individuals in the crowd and then crosses those images with government photo databases like drivers’ licenses. The National Park Service uses such technology to create a database of individuals who visit the National Mall in Washington, D.C., and communicates with these individuals after their visits to determine their satisfaction with their visit and to encourage them to return.
Suppose further that the President deploys American troops to quell a civil war in a remote area of sub-Saharan Africa (see Question #3), and the Citizens Committee for Peace Everywhere (C-COPE) plans a mass demonstration on the Washington Mall to protest the deployment. However, C-COPE is concerned that the government will conduct surveillance of their lawful and peaceful political activity, thereby chilling their rights under the Free Speech Clause of the First Amendment. C-COPE files a lawsuit against the government in federal court, seeking an injunction prohibiting the government from any surveillance of their protest. Which of the following is the action most likely to be taken by the Court in response to C-COPE’s lawsuit?
The Court will dismiss the lawsuit on grounds that it is not ripe, i.e., it does not constitute a justiciable controversy because it relies on facts that are still contingent – there has been no showing of objective harm or threat of specific future harm facts have sufficiently developed to render the legal question susceptible to a definitive answer.
The President’s veto power is defined in Article 1, § 7 of the Constitution. The Constitution also specifies that if the President does not veto or sign a bill within 10 days (excluding Sundays), it becomes a law. Suppose the Congress passed a bill (an ordinary bill; not a constitutional amendment) extending the time for the president to veto a bill from 10 to 20 days. The President, not surprisingly, quickly signed the bill into law.
Suppose further that Representatives Alpha and Bravo and Senators Charlie and Delta, all of whom had voted against the bill, filed suit in federal court challenging the constitutionality of the bill. Which of the following is the action most likely to be taken by the Court in response to the Legislators’ lawsuit?
The Court will find that the Legislators do not have standing, i.e., hold that the lawsuit is not a justiciable controversy because the Legislators fail all of the injury, causation, and redressability tests.
In addition to being generally considered to be the “father of the Constitution,” James Madison also:
Was elected President of the United States.
Was elected to the U.S. House of Representatives.
Served in the cabinet of President Thomas Jefferson.
The “Bill of Rights” refers to the first ten amendments to the Constitution. Which of the following statements about the Bill of Rights is NOT correct?
Four of the amendments that comprised the original Bill of Rights have been repealed. (NOT CORRECT)
As a member of the U.S. House of Representatives, James Madison was the legislative author of the Bill of Rights, both drafting its language and introducing that language in the House as proposed amendments to the Constitution.
The absence of any bill of rights was considered the great deficiency of the original Constitution; indeed, its lack in this respect was a serious obstacle to ratification by the states.
In a famous speech, Madison declared that the basic intent of the Bill of Rights was to guard “against the legislative, for it is the most powerful, and most likely to be abused,” as well as to protect against abuses by the Executive and “the body of the people, operating by the majority against the minority.”
Thomas Jefferson and Alexander Hamilton took conflicting approaches as to the construction of the Necessary and Proper Clause of the Constitution. In McCulloch v. Maryland, Marshall resolved the conflict as follows:
The Court gave an expansive interpretation to the Necessary and Proper Clause which was in accord with Hamilton’s view.
Consider the following statements about the two Founders discussed in this week’s videos. Which statement is correct?
Both Madison and Hamilton were strong supporters of “judicial review.”
The Necessary and Proper Clause:
Which refers to the powers of Congress, was given an expansive interpretation in McCulloch v. Maryland.
In Gibbons v. Ogden, Ogden operated steamboats between New York City and Elizabeth, New Jersey, pursuant to a license granted by the New York legislature. When Gibbons was granted a federal license to operate steamboats along a similar route, Ogden sued, claiming the federal license was invalid because Congress did not have the authority to regulate the economic activity involved. Clearly, operating a steamship line between New York and New Jersey is interstate commerce and the Court held the regulation was authorized under the Commerce Clause. Which of the following statements about the holding in Gibbons is correct?
Even though Gibbons could have been decided on the narrow grounds that the Commerce Clause was not violated because operating a steamship between two states is clearly interstate commerce, the Court gave the definition of commerce, and therefore the power of Congress under the Commerce Clause, a far more expansive definition.
The doctrine of “dual federalism” stands for the proposition that the federal and state governments operate in mutually exclusive spheres, with one, and only one, level of government authorized to regulate a given industry or type of activity. Under “dual federalism,” the ultimate arbiter of a lawsuit over whether a given industry or type of activity falls under the federal or state authority is:
The United States Supreme Court.
The following are the principal tenets of “dual federalism”:
(1) Allocation of regulatory authority over commerce to Congress and over production to the states; (2) Economic activity must a “direct effect” on interstate commerce for it to constitute “commerce”; and (3) Regardless of (1) and (2), Congress still cannot regulate if the activity intrudes into the zone of activities reserved to the states.
Which of the following statements is correct as to Carter v. Carter Coal Co. (U.S. 1936)?
Justice George Sutherland wrote the majority opinion holding a federal statute regulating labor relations in the coal industry to be unconstitutional, declaring that it was irrelevant to the constitutionality of the statute that it affected interstate commerce because any such effects were not sufficiently direct.
Consider the following pairs of Commerce Clause cases in choose the pair in which the Court’s holdings are most consistent with one another:
Heart of Atlanta Motel v. United States; and Katzenbach v. McClung Sr. & McClung, Jr.
The following questions use the terms “Era I,” Era II,” “Era III,” and “Era IV.” Era I is the period of Commerce Clause jurisprudence from Gibbons until the 1890s; Era II is the period of “dual federalism” from the 1890s until 1937 characterized by cases like United States v. E.C. Knight; Era III is the period from 1937 to the 1990s characterized by cases like NLRB v. Jones & Laughlin Steel Corp; and Era IV is the period from the 1990s today characterized by cases like United States v. Lopez.
- In A.L.A. Schecter Poultry v. United States, decided in Era II, a Brooklyn poultry dealer, having bought poultry that had moved in interstate commerce but sold it only locally, was charged with violating a federal statute setting the minimum wage and maximum working-hours. The Court held the statute to be unconstitutional, i.e., to violate the Commerce Clause. Based on what we have studied, which of the following statements is most likely correct?
If Schecter had been decided in Era I or Era III, the statute would have been declared constitutional; but if decided in Era IV, the result would be uncertain, i.e., it is not certain whether the Court would uphold the statute or invalidate it.
In Wickard v. Filburn, decided in Era III, the owner of a small Ohio farm was charged with violating a federal statute for growing an amount of wheat in excess of his statutory allotment, even though he only used the excess for home consumption. The Court held the statute to be constitutional, i.e., not to violate the Commerce Clause. Based on what we have studied, which of the following statements is most likely correct?
If Wickard had been decided in Era I, the result would have been the same; but if been decided in Era II or Era IV, the statute would have been declared unconstitutional.
In addition to being Chief Justice of the United States Supreme Court from 1800-1835, John Marshall:
Served in Congress.
Served in the cabinet of President John Adams.
Fought in the American Revolutionary War.
As to the power of “judicial review,” i.e., the judiciary’s power to declare acts of Congress and actions of the Executive unconstitutional, which of the following statements is most accurate?
The doctrine of judicial review was part of the American legal tradition prior to the decision Marbury v. Madison.
Thomas Jefferson and Alexander Hamilton took conflicting approaches as to the construction of the Necessary and Proper Clause of the Constitution. In McCulloch v. Maryland, Chief Justice John Marshall resolved the conflict as follows.
The Court gave an expansive interpretation to the Necessary and Proper Clause which was in accord with Hamilton’s view.
Chief Justice John Marshall’s opinion in the Dartmouth College Case held that a corporate charter is a contract within the protection of the Contract Clause of the Constitution. The importance of this holding is that:
A corporation, even though an entity created by law, has constitutionally protected contract rights, even against the government created.
Congress may exclude state regulation by enacting a federal law that displaces or “preempts” state regulation in that area. The constitutional basis for this pre-emption is:
The Supremacy Clause.
Suppose Congress has passed and the President signed the “Health Warnings to Pregnant Persons Act” giving the Department of Health and Human Services authority to mandate warning labels for products sold in interstate commerce that pose health risks to pregnant persons. Pursuant to this authority, HHS has mandated that all cans and bottles of beer sold in interstate commerce carry a label that says: ”Warning: Consuming this product while pregnant could be dangerous to your health.” Meanwhile, the State of Indiana has a law that mandates that all cans and bottles of beer manufactured in Indiana carry a label that says: ”Warning: Do not consume this product in excess if you are pregnant; excessive consumption presents serious health risks to both you and the fetus.”
The Hoosier Beer and Wine Manufacturers Association (HBWMA) filed suit to have the Indiana enactment declared invalid on grounds that the Indiana enactment is preempted by the HHS regulation. Of the following choices, which one is the most likely result of the lawsuit:
The HBWMA will win on grounds of conflict preemption.
Dormant Commerce Clause scrutiny arises in which of the following circumstances:
A state statute affects interstate commerce and the federal government has not acted preempt that state law.
Suppose the following. In Situation A, Congress has passed a statute, the constitutionality of which is challenged on grounds that the statute exceeds Congress’s power under the Commerce Clause. In Situation B, a state has passed a statute, the constitutionality of which is challenged on grounds that the statute violates the dormant Commerce Clause. Suppose further that the Court declares both statutes unconstitutional, i.e., both the statute passed by Congress in Situation A and the statute passed by the state in Situation B are struck down as unconstitutional. Which of the following statements is correct?
Congress cannot reverse the result of the Court’s decision in Situation A but can reverse the result of the Court’s decision in Situation B.
In 1990, Indiana enacted a statute that imposed requirements on haulers who dumped solid waste in landfills located in the state. Among other things, the law prohibited dumping of out-of-state solid waste unless the driver importing the waste presented to the landfill operator a “document” from a health officer from the foreign state certifying that the solid waste did not contain any hazardous waste in violation of federal law or any infectious waste in violation of Indiana law. The law contained other requirements as well applicable to out-of-state trash haulers that did not apply to their Indiana counterparts. Out-of-state waste haulers challenged the Indiana statute as violating the dormant Commerce Clause. Which of the following decisions that we discussed in class best supports the waste haulers’ position?
City of Philadelphia v. New Jersey (1978).
President Andrew Jackson faced two constitutional crises during 1832.
First, Congress reauthorized the Bank of the United States by passing the National Bank Act which Jackson considered unconstitutional even though its constitutionality had been upheld in McCulloch v. Maryland.
Second, South Carolina issued what it called an “Ordinance of Nullification,” declaring a tariff act passed by Congress unconstitutional and not binding on the state, based on the “nullification theory,” to wit, that a state has the authority to declare acts of the federal government unconstitutional and void.
How did Jackson react to these two crises?
Jackson vetoed the National Bank Act and rejected of South Carolina’s nullification theory, declaring that constitutional disputes are to be resolved by the Supreme Court.
One section of Chief Justice Roger Taney’s majority opinion in Scott v. Sandford (1857) declared the Missouri Compromise’s prohibition against slavery to be unconstitutional. (The Missouri Compromise was an act of Congress passed in 1820 that admitted Missouri to the Union as a slave state in return for future states north of Missouri’s southern border being admitted as free states.) Taney’s rationale was that because the Missouri Compromise deprived slave owners of the ownership of their slave property upon entering Minnesota, it violated the Due Process Clause of the Fifth Amendment by depriving slave owners of their property without due process of law.
Which of the following arguments refute Taney’s rationale?
As a matter of constitutional text, there is no prohibition in the Constitution for laws relating to slavery and nothing to indicate that the Framers intended one. The Northwest Ordinance that prohibited slavery was passed by the First Congress which had also passed the Bill of Rights.
To say that slaves are property violates the founding principles of our country – that all men are created equal and endowed by their Creator with certain inalienable rights, including liberty.
Section 3 of Article IV provides that Congress can make “all needful regulations” governing the territories. With Congress having this explicit power, a prohibition on slavery in the territories cannot be implied.
Prior to 1869, the nation had three federal “circuit courts,” staffed by federal district court judges and Supreme Court Justices “riding circuit.” Chief Justice Roger Taney was sitting as a circuit judge when he issued a writ of habeas corpus on behalf of an imprisoned secessionist named John Merryman on grounds that Merryman had been illegally detained. The prison’s commander refused to obey the writ on grounds that President Abraham Lincoln had suspended habeas corpus. Ex parte Merryman, 17 Fed. Cas. 144 (D.Md. 1861).
Taney cited the prison commander for contempt. His rationale was that under section 9 of Article I, only Congress—not the President—had the power to suspend habeas corpus.
Lincoln did not respond directly to Taney but stressed the obvious dangers to the Union and cited previous crises that had triggered comparable exercises of a President’s war powers.
Who was right?
Though subject of considerable debate, the consensus of learned opinion has been that Taney was right and Lincoln was wrong.
In Youngstown Sheet & Tube v. Sawyer, the Supreme Court held that President Harry Truman’s seizure of the country’s steel mills during the Korean War because of an impending strike by steelworkers was unconstitutional. Which of the following statements is correct?
President Truman immediately gave Congress formal notice that he had ordered the Secretary of Commerce to seize and operate the nation’s steel mills, and Congress took no action.
Justice Robert Jackson’s concurring opinion in Youngstown identifying three separate categories of presidential action with different legal consequences, is better remembered that Justice Hugo Black’s majority opinion.
Only a few years before Youngstown, Congress had enacted major labor-reform legislation during which it considered, but rejected, an amendment that would have authorized governmental seizures all in cases of emergency.
Casey Seaton was the Deputy Director of the FBI during the first term of a President’s administration. After the President was re-elected to a second term, the President nominated Seaton to be the new FBI Director, a position which requires Senate confirmation. During the President’s first term, Seaton had been deeply involved in a controversial FBI program called “Big Brother” involving surveillance of Americans suspected of illegal activities. In connection with the confirmation hearings, the Senate requested all documents relevant to Big Brother; the administration refused on grounds that to do so will expose undercover FBI agents. If the matter is litigated, which of the following is the most likely result?
The Court will order the administration to provide the information to the Senate but limit inspection of any information deemed by the administration to be secret to a small group of designated Senators.
he President’s veto power is defined in Article 1, § 7, ¶ 2 of the Constitution (the “presentment Clause”). It specifies that if the President does not veto or sign a bill within 10 days (excluding Sundays) of presentment, it becomes a law. Suppose the Congress passed a bill (an ordinary bill; not a constitutional amendment) extending the time for the president to veto a bill from 10 to 20 days. The President, not surprisingly, quickly signed the bill into law. Call this act the “20-day Veto Act.”
Suppose further that in the next Congress, a bill was passed at the behest of the nursing home industry that repealed a special 5% tax that had been imposed upon nursing home profits. Call this bill the “Nursing Home Tax Relief Bill.” The President vetoed the bill on the 15th day after presentment. The nursing home industry sued, arguing that the President had not validly vetoed the bill, it had in fact become law. At all relevant times, the Congress was in session, i.e., it did not adjourn. Which of the following is the action most likely to be taken by the Court in response to the nursing home industry’s lawsuit?
The Court will find that the Nursing Home Tax Relief Bill had become law because the 20-day Veto Act violated the Presentment Clause’s express language providing that if a bill is not vetoed within ten days, “the Same shall be a Law.”
. The “Non-delegation Doctrine” holds that Congress cannot delegate legislative power to the executive branch. In the following case, the Supreme Court struck down a statute as unconstitutional for violating the non-delegation doctrine:
A. L. A. Schechter Poultry Corp. v. United States (1935).
Medicaid is a joint federal-state program that pays for health care costs incurred by low-income individuals. Medicaid covers both “acute care” (physicians, hospitals, etc.) and “long-term care” (primarily nursing homes). Concerned about the rising cost of nursing home care, Congress passed and the President signed the “Nursing Home Medicaid Cost Control Act” (NHMCCA). The NHMCCA contained a provision that said: “The Secretary of Health and Human Services may promulgate and enforce such rules as shall be necessary or appropriate to carry out the purposes of this Act.” (The Department of Health and Human Services (HHS) is the agency in the Executive Branch that administers Medicaid; the Secretary of HHS is appointed by the President and a member of the President’s cabinet.) Pursuant to this provision, the Secretary promulgated a rule imposing certain new regulations (the “New Regulations”) on the nursing home industry. The nursing home industry sued alleging that the New Regulations violate the Major Questions Doctrine. The nursing home industry will likely win if:
The New Regulations are economically or politically significant.
We have discussed several cases in both Week 2 and Week 4 in which opinions of the Court and of individual justices in their concurrences or dissents have been characterized as “formalist” or “functionalist.” Which of the following statements is most accurate?
Justice Hugo Black’s majority opinion in Youngstown Sheet & Tube Co. v. Sawyer and Justice John Paul Stevens majority opinion in Clinton v. New York City are examples of formalist opinions.
The Ethics in Government Act of 1978 allows for the appointment of an “independent counsel” to investigate and, if appropriate, prosecute certain high-ranking Government officials for violation of federal criminal laws. Under the Ethics in Government Act, who appointed an independent counsel?
A special committee of the judiciary.
Suppose Congress is concerned about workers in the “gig” economy, particularly their being monitored and controlled by their employers and problems with unemployment compensation systems providing them timely benefits. Supporters of the workers introduce a bill in Congress to create a new “Gig Workers Protection Bureau” (GWPB) to protect the rights of gig workers. While the sponsors of the bill have confidence that the current President shares their commitment to gig workers, they fear the future president might not be as supportive. Therefore, they would like the head of the GWPB to be protected from being removed by a hostile President and then replaced by a less sympathetic head. Which of the following structures would most likely survive judicial scrutiny?
Provide that the GWPB be headed by a commission, the three members of which are each appointed by the President and confirmed by the Senate for four-year terms, with the President’s removal power limited to residential removal power to “inefficiency, neglect of duty, or malfeasance in office.”
Under the “Compact Theory” of the Constitution,
Any state is free secede from the Union without the consent of the federal government or any of the states.
Of the following actions taken by Lincoln in the months following the fall of Fort Sumpter without Congressional authorization, which was most likely within the inherent authority of the President?
Calling 75,000 of the militia into federal service.
Which of the following statements about the Emancipation Proclamation and the Thirteenth Amendment is correct?
The Emancipation Proclamation was an executive order issued by President Lincoln on his authority as Commander-in-Chief whereas the Thirteenth Amendment was a constitutional amendment passed by Congress and ratified by the states.
Which of the following likely unconstitutional actions did President Lincoln take or authorize during the Civil war?
Ordered detentions without trials and imprisonments without judicial convictions.
Suspended the writ of habeas corpus.
Ordered wholesale arrests without warrants.
Which of the following clauses are contained in the Fourteenth Amendment?
The Privileges or Immunities Clause; the Due Process Clause; and the Equal Protection Clause.
Which of the following statements is correct?
After the adoption of the Seventeenth and Twenty-sixth Amendments, women and citizens age 18 and older had a constitutional right to vote.
The Establishment clause of the First Amendment says “Congress shall make no law respecting an Establishment of Religion….” suppose a city, concerned that the membership in a historic downtown church had dwindled to such a low level that it was in danger of closing, passed an ordinance declaring the church to be the “official church of the city” and providing a line item in its budget for the church’s support. Plaintiffs with standing sue, contending that the ordinance violates the Establishment Clause. The city attorney responds by saying that the Establishment Clause only prohibits Congress from making laws respecting an Establishment of Religion; it says nothing about cities. Does the city’s argument fail or prevail?
Fail; the Supreme Court applied or incorporated the Establishment Clause to state and local governments in Everson v. Board of Education (1947).
Justices Benjamin Cardozo and Felix Frankfurter argued for “selective incorporation” of the Bill of Rights to the states by operation of the Due Process Clause of the Fourteenth Amendment; whereas Justice Hugo Black argued for total incorporation. Which of the following best describes the result of this debate?
While the Supreme Court has followed the Cardozo-Frankfurter approach and selectively incorporated the Bill of Rights by operation of the Due Process Clause, Justice Black’s view has prevailed as almost all protections of the Bill of Rights have been incorporated by operation of the Due Process Clause.
You are a criminal defense lawyer whose client has been charged by the Marion County prosecutor with capital murder. The prosecutor did not present the case to a grand jury. You moved to dismiss the charges on grounds that the prosecutor has violated the Grand Jury Clause of the Fifth Amendment which provides that, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” Does your argument fail or prevail?
Probably fail because the Grand Jury Clause has not been applied or incorporated to the states; however, because neither the United States Supreme Court nor the Indiana Supreme Court has explicitly held in a modern decision that the Grand Jury Clause has not been incorporated, the judge would have the authority to hold that it has been incorporated and dismiss the charges.
The dissenting opinion in the Civil Rights Cases expressed the view that Congress had the power under the Fourteenth Amendment to prohibit racial discrimination in accommodations, public transport, and theaters regardless of race or color. The justice who wrote this dissent was:
John Marshall Harlan.
Suppose a facility known as the “public library” in a particular community is actually owned and operated by a non-profit, private foundation, incorporated as the “Community Public Library Foundation, Inc.” The Library is funded almost exclusively by income from an endowment fund established by wealthy citizens of the community in the previous century, although it receives some revenue from grants, rental income from the use of its auditorium, and fines from over-due books. The Library receives no direct appropriation from local government nor does it receive any direct tax revenue. But the Library is located on land donated by the local government to the Library when it was established back in the twentieth century. The Library has a by-law that provides that its services are available to members of, but only members of, “Christian, Jewish, and Islamic faiths.” A group of citizens with standing sue the Library alleging violation of the Entanglement Clause and the Free Exercise Clause of the First Amendment. The Library asked that the lawsuit be dismissed on grounds that it is a private institution and so its discrimination does not constitute “state action.” (Assume that the plaintiffs concede that the Library is not engaged in interstate commerce and that no state or local civil rights law prohibits discrimination by non-profit corporations.) Does the Library’s argument fail or prevail?
Fail; the Library’s discrimination constitutes “state action” because the Library is performing a government function.
The State Band and Cheerleading Association (SBCA) is a private, non-profit membership organization consisting of middle-schools and high schools in the state that pay a membership fee to belong. The schools consists of both public schools and private schools and the SBCA periodically conduct competitions for both cheerleading squads and bands. Performing well in SBCA competitions is a matter of great prestige and students on high-performing squads often earn college scholarships as a result. The SBCA has two controversial rules. One is that only girls can participate in the cheerleading competitions. The second is that students who are home-schooled cannot participate in either cheerleading or band competitions, even if they joined together in ad hoc “schools” formed only for the purposes of such competition. A group of citizens with standing sue the SBCA alleging various violations of the Bill of Rights. The SBCA defends on grounds that that it is a private institution and so its discrimination does not constitute “state action.” (Assume that the plaintiffs concede that the SBCA is not engaged in interstate commerce and that no state or local civil rights law prohibits discrimination by non-profit corporations.) Does the SBCA’s argument fail or prevail?
Fail; under Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass’n, the SBCA’s discrimination constitutes “state action”.
Justice John Marshall Harlan was appointed to the Supreme Court by President Rutherford B. Hayes. An important historical fact relating to Hayes’s appointment of Harlan is:
Hayes, though a Northern Republican, ran on a platform of ending Reconstruction in the South. Appointing a Southerner like Harlan furthered that agenda.
Justice Harlan is well known for his dissenting opinions in Civil Rights Cases, 109 U.S. 3 (1883), and Plessy v. Ferguson, 163 U.S. 537 (1896). Which of the following statements best describes Harlan’s position in these two cases?
In both the Civil Rights Cases and Plessy versus Ferguson, Harlan supported expanding civil rights for Blacks.
Justice Harlan dissented from the Supreme Court’s decision in Pollock v. Farmers’ Loan & Tr. Co., 158 U.S. 601 (1895), which declared the federal income tax passed by Congress to be unconstitutional. Which of the following statements is correct?
Harlan’s position was vindicated when Congress passed and the states ratified the Sixteenth Amendment
The most famous example of the use of economic substantive due process was in Lochner v. New York, 198 U.S. 45 (1905). Which of the following statements best describes Justice Harlan’s record in cases involving economic substantive due process?
Justice Harlan’s record in cases involving substantive due process is mixed. On the one hand, he strongly supported economic due process and liberty of contract in Lochner. But he also voted against economic substantive due process in other cases.
The foundation of “Substantive Due Process” is which of the following interests protected by the Due Process Clause?
Liberty
Which of the following two interests did the Supreme Court balance in declaring unconstitutional a New York statute that prohibited the employment of bakers for more than 10 hours per day or 60 hours per week in Lochner v. New York?
(1) Protecting bakery employees who were otherwise unable to bargain effectively for their labor; (2) Protecting the public health.
The State Legislature has adopted the State Manicurist Licensing Act (SMLA), imposing minimum requirements on individuals performing manicures for compensation. The stated justification for the SMLA is that dangerous chemicals are used in manicures. For example, acetone, a nail polish remover, can cause headaches; dizziness; and irritated eyes, skin, and throat. Formaldehyde, a nail hardener, can cause difficulty breathing, including coughing, asthma-like attacks, and wheezing; allergic reactions; irritated eyes, skin, and throat. In fact, formaldehyde can cause cancer. The State Manicurist Licensing Board (Board) has promulgated a regulation requiring any applicant for a manicurist license to present evidence of having taken a high school or higher level Chemistry course and earn a grade of at least B-minus. Pat Cheribon’s high school did not offer Chemistry and Pat has not had the resources to pursue higher education. Pat sues the State, arguing that the SMLA was unconstitutional because it violated a prospective manicurist’s liberty of contract to bargain for and sell labor guaranteed by the Due Process Clause. The State asked that the lawsuit be dismissed on grounds that the statute does not violate the Due Process Clause. Does the State’s argument fail or prevail?
Prevail on the authority Williamson v. Lee Optical
On page 538 of our textbook, Chemerinsky begins a discussion of three relatively recent decisions by the Supreme Court involving punitive damage awards: BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), and Phillip Morris USA Inc. v. Williams, 556 U.S. 178 (2009). He places the following heading ahead of this discussion: “The Rebirth of Economic Due Process?” What does Chemerinsky mean by this?
Taken together, the punitive damages decisions signal a willingness by the Supreme Court to impose constitutional limits on government action reminiscent of the earlier age of economic substantive due process.
