Cumulative weekly quizzes Con Law

Question 1

Federalism

Answer 1

the term we use to describe the power relation between the federal and state governments.

Question 2

The Constitution recognizes that power belongs primarily in a centralized national government, that action by the federal government is presumptively valid, and that action by state governments are presumptively invalid since states only possess those powers ceded to them by the Constitution.

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Answer 2

False
Our national government is one of limited powers. If the Constitution does not grant powers to the federal government (whether explicitly or, as is often the case, implicitly), then the federal government may not lawfully exercise them. State exercises of power are therefore presumptively valid (unless there’s something in the Constitution, like the Supremacy Clause that invalidates them) while federal exercises of power are presumptively invalid (unless there’s something in the Constitution that authorizes them).

Question 3

What article of Constitution?

Legislative
Executive
Judicial
Adminstration

Answer 3

Legislative Branch – Article I
Executive Branch – Article II
Judicial Branch – Article III
Administration Branch – Nowhere in the Constitution.

Question 4

Article III of the Constitution performs which, of the following?

Answer 4

• Article III creates a Supreme Court.
• Authorizes but does not require Congress to pass laws to create lower federal courts.
• It DOES NOT create lower federal courts.
• It DOES NOT authorize/require Congress to pass laws to create a Supreme Court.
• It DOES NOT authorize/require the President to create lower federal courts.

Question 5

The original Constitution, prior to ratification of the first ten Amendments, was solely concerned with the structure of our government and made no provision for the protection of individual rights.

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Answer 5

False
While the Constitution, before ratification of the Bill of Rights (1791), focuses mostly on the structure of our national government, there are some protections of individual liberties, such as the proscription on bills of attainder and ex post facto laws, as well as restrictions on when the writ of habeas corpus can be suspended.

Question 6

One of the holdings of Marbury v. Madison (1803) is that the “original jurisdiction” of the Supreme Court, as laid out in Article III of the Constitution, represents the ceiling rather than the floor of the Supreme Court’s original jurisdiction, and that therefore Congress may not constitutionally grant more original jurisdiction to the Supreme Court.

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Answer 6

true

Question 7

Another holding of Marbury v. Madison (1803) is that the Judicial Branch is authorized to review the constitutionality of the conduct of members of the Executive Branch, including that of the President.

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Answer 7

True
Marshall’s stirring language about assuring that there have to be remedies available for the violation of legal rights was made in this context.

Question 8

Article III states without qualification that in all cases, besides those in which the Supreme Court has been granted original jurisdiction, it shall have appellate jurisdiction.

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Answer 8

False
“In all other cases, the Supreme Court shall have appellate jurisdiction both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

Question 9

One of the holdings of Marbury v. Madison (1803) is that the Judicial Branch may declare a piece of legislation to be unconstitutional and therefore unenforceable, in part because it is “emphatically the province and duty of the judicial department to say what the law is.”

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Answer 9

True. Yes, this is true. It’s not like that in all constitutional democracies. And it wouldn’t be unreasonable for a legislature to have the final word on whether its statutes are constitutional. But Marbury holds differently.

Question 10

The Supreme Court does not have power to review the final decisions of the highest court of a state on matters of federal law because states are sovereign entities.

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Answer 10

False
While it’s true that the states are sovereign entities, with the ratification of the Constitution the states gave up some of their sovereign privileges. You can see tons of those surrendered privileges enumerated in Article I of the Constitution. In addition, the Supremacy Clause states the federal law trumps state law when the two are in conflict.
The Supreme Court rejected the idea that it is without power to review the decisions of state high courts on matters of federal law.

Question 11

Congress may, pursuant to the Exceptions Clause of Article III, dictates rules of decision in cases before the Supreme Court.

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Answer 11

False
In United States v. Klein (1871), this is exactly what Congress tried to do and the Courts rejected the attempt. (I know we didn’t discuss Klein in class, but you read it!) After the Supreme Court ruled that a presidential pardon was evidence that a plaintiff had not aided the enemy during the Civil War and was therefore eligible to recover confiscated property under a congressional law, Congress passed a new statute providing that a pardon was inadmissible as evidence and that it was actually proof that the plaintiff had aided the enemy. The Supreme Court said Congress can’t do that because it’s up to the Court to adjudicate cases. By trying to tell the court how to weigh evidence, Congress was violating separation of powers principles in the Constitution.

Question 12

A congressional statute that requires the Supreme Court to determine whether an applicant is entitled to asylum in the United States, subject to review and ultimate approval by the Attorney General of the United States, would be deemed unconstitutional because it violates the prohibition on advisory opinions.

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Answer 12

True
The federal courts have to be able to issue final decisions that cannot be amended by the political branches, otherwise they are issuing only advisory opinions. That’s the gist of Hayburn’s Case (1792) (courts determine only in first instance whether a vet had been injured while engaged in military service for pension purposes) and Plaut v. Spendthrift Farm, Inc. (1995) (Congress can’t allow final decisions from the Article III courts to be revived).

Question 13

One of the holdings of Marbury v. Madison (1803) is that the Judicial Branch may declare a piece of legislation to be unconstitutional and therefore unenforceable, in part because it is “emphatically the province and duty of the judicial department to say what the law is.”

t/f

Answer 13

True
It’s not like that in all constitutional democracies. And it wouldn’t be unreasonable for a legislature to have the final word on whether its statutes are constitutional. But Marbury holds differently.

Question 14

Article III states without qualification that in all cases, besides those in which the Supreme Court has been granted original jurisdiction, it shall have appellate jurisdiction.

t/f

Answer 14

False
you’d be excused for not realizing that the Congress may make exceptions to the Supreme Court’s appellate jurisdiction: “In all other cases, the Supreme Court shall have appellate jurisdiction both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Now, what kinds of exceptions are allowed? That’s a tough question we’ll address (and not really answer) soon.

Question 15

Another holding of Marbury v. Madison (1803) is that the Judicial Branch is authorized to review the constitutionality of the conduct of members of the Executive Branch, including that of the President.

t/f

Answer 15

True
Marshall’s stirring language about assuring that there have to be remedies available for the violation of legal rights was made in this context.

Question 16

One of the holdings of Marbury v. Madison (1803) is that the “original jurisdiction” of the Supreme Court, as laid out in Article III of the Constitution, represents the ceiling rather than the floor of the Supreme Court’s original jurisdiction, and that therefore Congress may not constitutionally grant more original jurisdiction to the Supreme Court.

t/f

Answer 16

True

Question 17

All of the following are justifications for requiring that plaintiffs have “standing” before their claims will be adjudicated in a federal court: legal issues are best decided in the abstract without having to deal with the messiness of factual allegations by the parties; the best litigants are typically those who have thought deeply about legal issues from an academic standpoint; and standing doctrine appropriately expands the reach of the courts to allow them to deal meaningfully with pressing social problems.

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Answer 17

False
The rationales commonly articulated are basically the opposite of the ones in the question. Actual considerations include not just the Court’s interpretation of Article III’s “case” and “controversy” language, but also avoidance of officious intermeddlers; prevention of overloading courts with frivolous suits; assurance of better fact development to resolve legal issues with the benefit of concrete facts; an assumption the personal stakes in a dispute create the best litigants; and a desire to limit the role of the courts vis a vis the political (i.e. elected) branches of government.

Question 18

The plaintiff in Lujan v. Defenders of Wildlife (1992) could probably have overcome her standing problem is she’d just purchased a plane ticket to Egypt to go see the crocodiles that she said she was concerned were being threatened by the failure of the United States to enforce provisions of the Endangered Species Act internationally.

t/f

Answer 18

true

Question 19

While the Court’s constitutional and prudential standing rules may make it difficult for particular plaintiffs to demonstrate standing, at the end of the day there will always be a federal court available to some party when a serious allegation of unconstitutional or unlawful conduct by a government agent has been asserted.

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Answer 19

False
there’s nothing in the Constitution that guarantees that any dispute about the meaning or application of federal statutory or constitutional law must necessarily be aired in a federal court.

Question 20

The Black student and parent plaintiffs in Allen v. Wright (1984) lacked standing to pursue their challenge to IRS taxing policies for segregated schools because they were unable to show that they suffered any concrete injury.

Answer 20

False
Justice O’Connor explained that the plaintiffs did allege a concrete injury when they claimed that they were denied the opportunity to attend school (or have their children attend school) with white students in an integrated setting. The problem was that the plaintiffs could not show that the defendant’s policy of allowing tax exemptions for the white schools that segregated was the cause of this harm, or that action by the Court (like ordering the IRS to stop granting tax exempt status to segregated schools) would redress this injury.

Question 21

There are six standing requirements, three of which are referred to as “constitutional” and three of which are referred to as “prudential.” It is only the constitutional standing requirements that must be met by a plaintiff in a federal lawsuit.

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Answer 21

False
All six of the standing requirements are … requirements. All six were “created” by the Supreme Court, though the Court has said that the first three (injury in fact, causation and redressability—all of which we’ll discuss next week) are derived from the Constitution and the other three were created by the Court in order to appropriately manage the federal judicial system. Regardless of how they’re labeled, they all have to be met by a plaintiff unless Congress chooses to modify any of the prudential standing requirements with respect to legislation that it passes. We’ll discuss all of this more next week.

Question 22

“Standing” doctrine addresses whether a particular person is the proper party to present a particular issue to the court for determination.

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Answer 22

True

Question 23

Because Congress is the “first among equals” in our tripartite governmental structure, its power to pass legislation in accord with the Constitution is not restricted by subject matter.

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Answer 23

False
Congress is not the “first among equals” in any constitutionally relevant manner. The phrase is not really quoting anything. Congress, like the other branches, is limited in its power by the Constitution and cannot act beyond the authority granted to it in the Constitution. It may pass legislation only to the degree it is authorized to do so by some provision in the Constitution. Now, figuring out whether the Constitution authorizes Congress to have passed legislation in any particular circumstance – like, for example, whether Congress can create a national bank – can be difficult to figure out. But the statement is definitely false.

Question 24

McCulloch v. Maryland (1819) established that Congress has the authority, pursuant to the Necessary Proper Clause alone, to create a national bank.

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Answer 24

False
The Necessary and Proper Clause alone does not give Congress the authority. There must be a predicate constitutional provision authorizing Congress to legislate in a particular subject area before its powers under the Necessary and Proper Clause justify legislative action. In McCulloch, Congress could act because it was necessary and proper for it to create a national bank in order to effectuate its enumerated power under Article I to raise money for the army and navy.

Question 25

As Chief Justice Marshall explains in McCulloch v. Maryland (1819), for legislation to be "necessary" under the Necessary and Proper Clause, the legislation must be proved to be absolutely required in order to effectuate a predicate constitutional power granted to Congress by the Constitution, and not just convenient for the effectuation of that predicate constitutional power. | t/f

Answer 25

False

Question 26

The majority opinion in National Federation of Independent Business v. Sebelius (2012) affirms Chief Justice Marshall's holding in McCulloch v. Maryland (1819) that Congress may legislate in a subject area based solely on its Necessary and Proper Clause powers. | t/f

Answer 26

False The predicate constitutional grant of authority in Sebelius was the Tax power of Congress.

Question 27

Although there are some exceptions, generally speaking a party may only assert his or her own rights in federal court, otherwise he or she would lack standing. | t/f

Answer 27

True "No third party standing" is one of the "prudential" standing requirements. There are exceptions, for example when there is a close relationship between the plaintiff and the rights holder and where there are impediments to the rights-holder asserting his or her own right.

Question 28

The exceptions to the "no third party standing rule" can seem counterintuitive, since the Supreme Court has found, for example, that a bartender had standing to raise a claim relying on the Equal Protection rights of underage drinkers, but a parent did not have standing to raise a claim relying on the First Amendment rights of his daughter. | t/f

Answer 28

True holdings are "counterintuitive" or not, but the holdings described her are accurate and refer to, respectively, Craig v. Boren (1976) and Elk Grove Unified School District v. Newdow (2004).

Question 29

Ripeness doctrine is identical to the constitutional injury requirement for standing. | t/f

Answer 29

False We noted in class that there's overlap in the inquiries between the imminent injury requirement for standing and the ripeness inquiry, but ripeness primarily focuses on whether pre-enforcement judicial review of a statute or regulation is proper.

Question 30

The two questions that we have to ask to ascertain whether an issue is ripe for review are (1) What hardships will the plaintiff suffer if denied pre-enforcement review?, and (2) Are the issues adequately focused and ready for judicial review? | t/f

Answer 30

true

Question 31

Cases are moot when no actual "case" or "controversy" has ever existed during the lawsuit. | t/f

Answer 31

False Mootness will onto come into play after it's already been established that an actual controversy exists. The rule is that there must be a live controversy during the entire pendency of the matter. So a case becomes moot when a controversy ceases to exist (for example, because of the death of a party or a change in the law).

Question 32

One exception to the mootness doctrine is for harms that are capable of repetition but that evade judicial review. | t/f

Answer 32

True Note that the harm has be capable of repetition for the same plaintiff (like a woman challenging an abortion restriction who might once again become pregnant).

Question 33

Another exception to mootness doctrine may come into play when a defendant voluntary stops engaging in the activity that the plaintiff has alleged is unlawful, because the federal courts are wary that a defendant will "game" the system by temporarily suspending their activity and then resuming it again once the plaintiff's lawsuit has been dismissed as moot. | t/f

Answer 33

true

Question 34

Congress has the authority under the Constitution to legislate for the "General Welfare," at least so long as it makes findings that establish a rational basis for concluding that the legislation may achieve its stated goals. ## Footnote t/f

Answer 34

False Congress does not have the authority to legislate for the general welfare. Congress has only limited powers---the ones provided by the Constitution.

Question 35

The meaning of the Commerce Clause, and how much authority Congress has to pass legislation pursuant to it, has undergone significant revisions over the course of our nation's history. | t/f

Answer 35

True

Question 36

For Chief Justice Marshall, who wrote the Court's opinion in Gibbons v. Ogden (1824), the meaning of "commerce" in the Constitution had to be narrowly defined to include only the buying or selling or interchanging of commodities, because to provide a more expansive definition would be to provide too much power to Congress at the expense of the States. ## Footnote t/f

Answer 36

False Marshall gave a very expansive definition of "Commerce" that included the manufacturing and production of commodities.

Question 37

From the late nineteenth century until about 1938, the Supreme Court narrowed the scope of the Commerce Clause, holding with a good deal of consistency during this period that "Commerce" meant pretty much only the buying and selling of commodities, and reading the Tenth Amendment as providing a limit on the activities that Congress could regulate, reserving a zone of actitivities uniquely to the states to regulate. | t/f

Answer 37

true

Question 38

The "switch in time that saved nine" refers to the decision by Justice Owen Roberts, in NLRB v. Jones Laughlin (1937), to abandon the Court's restrictive approach to determining the scope of Congress's authority under the Commerce Clause and to instead vote to restore the expansive definition of "commerce" that we saw in Gibbons v. Ogden (1824), thereby defusing the Roosevelt administration's efforts to get Congress to pack the Supreme Court with more Justices. | t/f

Answer 38

true

Question 39

Part of the holding of Wickard v. Filburn (1942) is that Congress can legislate in a way that impacts purely intrastate activity if it has a rational basis for concluding that the intrastate activity of an individual, if considered along with the intrastate activity of other individuals, in the aggregate has a significant effect on interstate commerce. | t/f

Answer 39

true

Question 40

Congress may regulate channels of interstate commerce pursuant to its Commerce Clause powers, which means, for example, it can regulate things having to do with interstate highways or rivers. ## Footnote t/f

Answer 40

true

Question 41

Pursuant to the Commerce Clause, Congress may regulate the instrumentalities of interstate commerce (like train depots or automobiles) as well as things that have passed across state lines. | t/f

Answer 41

true

Question 42

Congress may regulate economic or commercial intrastate activities pursuant to the Commerce Clause if those activities, taken in the aggregate, would "substantially affect" interstate commerce. | t/f

Answer 42

true

Question 43

Congress may regulate non-economic or noncommercial intrastate activities pursuant to the Commerce Clause if those activities, taken in the aggregate, would "substantially affect" interstate commerce. | t/f

Answer 43

false The Supreme Court has drawn a distinction between Congress ability to legislate commercial and noncommercial intrastate activity pursuant to the Commerce Clause.

Question 44

The Supreme Court determined in National Federal of Independent Business v. Sebelius (2012) that enactment of the Affordable Care Act was constitutional because Congress lawfully acted pursuant to the Commerce Clause. | t/f

Answer 44

false The ACA was upheld as constitutional, but not on these grounds.

Question 45

The Tenth Amendment is "but a truism," meaning that if a provision in the Constitution grants Congress the authority to legislate in an area, by definition the Tenth Amendment cannot limit Congress's ability to legislate in that area. | t/f

Answer 45

false Although the Supreme Court for much of our history understood the Tenth Amendment in this manner, the statement is false. Since New York v. United States (1992) and Printz v. United States (1997), the Tenth Amendment has a renewed vitality and restricts the ability of Congress to "commandeer" the states' legislative and executive processes, even in situations where Congress would otherwise be authorized to act pursuant to constitutional provisions like the Commerce Clause.

Question 46

The Tenth Amendment does not allow Congress to "commandeer" state legislative and executive processes by, for example, telling states that they must or must not legislative in some area, or by forcing state officials to administer a federal program, but this restriction does not apply to congressional commandeering of state judicial processes. | t/f

Answer 46

true

Question 47

Because of the Tenth Amendment, Congress may neither compel the states to pass legislation nor forbid the states from passing legislation. | t/f

Answer 47

true The first part is the holding of New York v. United States (1992) and the second part is the holding of Murphy v NCAA (2018).

Question 48

Congress may pass legislation in accord with its constitutional powers so long as it has a rational basis for believing that the legislation will promote the "General Welfare" of the people. | t/f

Answer 48

false

Question 49

Congress has very broad powers to pass legislation to impose taxes and to spend money, including in particular the constitutional power to spend money for the General Welfare of the people. | t/f

Answer 49

true this is true, as per United States v. Butler (1936) and South Dakota v. Dole (2004), among other decisions.

Question 50

When determining whether a statutory restriction on the President's removal power is constitutional or not, the Court will ask whether the removal restrictions are of such a nature that they prevent the President's ability to perform his or her constitutional duty. | t/f

Answer 50

true It's part of the holding of Morrison v. Olson (1988). What goes largely unaddressed in the case is how in the future to figure out WHETHER particular restrictions prevent the President from performing their constitutional duties.

Question 51

Congress may disallow the President altogether from removing certain executive-branch officials, so long as it does so unambiguously in a statute | t/f

Answer 51

False Congress may NEVER ENTIRELY take away the President's ability to remove an executive officer. In some circumstances, removal can be restricted only to instances where there is "good cause," but that's the maximum Congress can do.

Question 52

The "nondelegation doctrine" forbids members of the federal judiciary from serving as delegates to any political party or convention. | t/f

Answer 52

False

Question 53

The Supreme Court has invalidated legislation on "nondelegation doctrine" grounds only twice in our nation's history, and not in over eight decades. ## Footnote t/f

Answer 53

True Both cases were in the same year: ALA Schecter Poultry Corp. v. United States (1935) and Panama Refining Co. v. Ryan (1935).

Question 54

The Court will not find a "nondelegation doctrine" problem with legislation passed by Congress if Congress provides the Executive Branch with an intelligible principle for guiding its discretion in promulgating rules or regulations. | t/f

Answer 54

True Justice Scalia's opinion for a unanimous court in Whitman v. American Trucking Assn. (2001).

Question 55

Many legal commentators believe that it's only a matter of time before the new Supreme Court reinvigorates the "nondelegation doctrine" in order to begin to rein in the so-called administrative state. | t/f

Answer 55

True

Question 56

When the Constitution is silent about whether a President may take a particular action, we determine whether the President lawfully acted within his or her "inherent" powers by assessing whether Congress has approved that type of activity by legislation (in which case the President's powers are at their zenith), whether Congress has disapproved of that type of activity (in which case the President's powers are at their lowest ebb), or whether Congress has not weighed in at all (in which case we're in a kind of "twilight zone" where we have to do our best to decide). | t/f

Answer 56

True Justice Jackson's tripartite scheme from his concurrence in the Steel Seizures Case, Youngstown Sheet & Tube Co. v. Sawyer (1952), and this is the approach typically used.

Question 57

When a state passes legislation that impacts interstate commerce and Congress has already passed legislation in the same area, the state law may in some circumstances be "preempted" by the federal legislation on Supremacy Clause grounds. | t/f

Answer 57

true

Question 58

When a state passes legislation that impacts interstate commerce and Congress has not passed any legislation in the same area, the state law may in some circumstances be "preempted" by the federal legislation on Supremacy Clause grounds. | t/f

Answer 58

false the reason the state law might be deemed unconstitutional on Supremacy Clause grounds under these circumstances is by operation of the so-called "Dormant Commerce Clause," rather than because of preemption.

Question 59

There are several ways in which state legislation may be preempted by a federal law: express preemption (where the federal legislation explicitly states that states may not legislate in an area) and various forms of implied preemption (where a state law conflicts with federal law in a way that makes it impossible for a person or entity to comply with both federal and state law at the same time; where a state law impedes the objective of a federal law; and where the state tries to legislate in an area in which the federal government is deemed to be authorized solely to legislate in the entire field that the state is trying to legislate in). | t/f

Answer 59

True

Question 60

The different kinds of implied preemption are absolutely mutually exclusive and can be characterized by brightline rules, so that one would never have a situation where state legislation was preempted on, for example, on the grounds both that the legislation impedes a federal objective and it conflicts with federal law. | t/f

Answer 60

False

Question 61

Analysis of the constitutionality of state legislation under the so-called Dormant Commerce Clause is appropriate only where Congress has actually legislated in the general area in which the state legislation was passed. | t/f

Answer 61

false Its the exact opposite

Question 62

The key question when engaging in a Dormant Commerce Clause analysis is whether the state legislation at issue discriminates against out-of-state actors or market participants, such that if there is discrimination against out-of-staters then the legislation is likely (though not certain) to be deemed unconstitutional, and if there is not discrimination then the legislation is likely (though not certain) to be deemed constitutional. | t/f

Answer 62

True

Question 63

There's more than one provision in the Constitution protecting the "Privileges" and/or "Immunities" of U.S. citizens. | t/f

Answer 63

True This week we discussed the "Privileges and Immunities" Clause of Article IV of the Constitution. Next week we'll discuss the "Privileges or Immunities" Clause from the Fourteenth Amendment. They use nearly identical language, but their protections, as you'll see, are much different.

Question 64

The Privileges and Immunities Clause of Article IV protects against state discrimination against the infringement on out-of-state U.S. citizens' "fundamental" rights and a their right to earn a livelihood, and nothing else. | t/f

Answer 64

True

Question 65

Litigation involving the Privileges and Immunities Clause of Article IV that concerns discrimination against out-of-staters with respect to "fundamental" rights actually rarely happens, since litigants are likely to invoke the source of their fundamental rights---other constitutional provisions---directly rather that via the P&I Clause. | t/f

Answer 65

true

Question 66

The right of out-of-staters to equal treatment with in-staters with respect to obtaining abortion services is the kind of "fundamental" right protected by the Privileges and Immunities Clause of Article IV, while the right of out-of-staters to obtain FOIA records to the same degree that in-staters can is not that kind of fundamental right. | t/f

Answer 66

true per Doe v. Bolton(1973) and McBurney v. Young (2013).

Question 67

The Privileges and Immunities Clause of Article IV protects every out-of-state person's right to earn a livelihood on the same terms as in-state residents. | t/f

Answer 67

False he problem here is "every person," since the Privileges and Immunities Clause does not protect non-citizens of the United States. But for citizens, it is true that out-of-staters cannot be discriminated against with respect to their ability to engage in a common calling (i.e., earn a livelihood, ply a trade, etc.).

Question 68

Analysis of the constitutionality of state legislation under the so-called Dormant Commerce Clause is appropriate only where Congress has actually legislated in the general area in which the state legislation was passed. | t/f

Answer 68

False, exactly the opposite

Question 69

The key question when engaging in a Dormant Commerce Clause analysis is whether the state legislation at issue discriminates against out-of-state actors or market participants, such that if there is discrimination against out-of-staters then the legislation is likely (though not certain) to be deemed unconstitutional, and if there is not discrimination then the legislation is likely (though not certain) to be deemed constitutional. | t/f

Answer 69

True