MBE Questions

Question 1

Last year, Congress enacted legislation providing for funding opportunities to eligible secular and religiously affiliated colleges and universities. The funding will be available through individual counties as each county’s funding limitations allow. The legislation does not require that each county apply standard guidelines nor does it provide any suggested guidelines other than a statement that “all counties should track funding and compile guidelines in the event of a federal audit.”

A county awards a large grant to a religiously affiliated college that employs a substantial number of residents. The grant contract, signed by representatives from both the county and the college, states as follows: “All grant monies must be used in compliance with county regulations. Further, the college must track the allocation of grant monies throughout the grant term.”

Is the county’s award of the grant constitutional?

A) No, because the county provided grant monies to a religiously affiliated college.
B) No, because it does not require that the aid be used only for nonreligious purposes.
C) Yes, because the college is required to track funding.
D) Yes, because the college may be the subject of a federal audit.

Answer 1

B) No, because it does not require that the aid be used only for nonreligious purposes.

Governmental financial assistance to religious institutions is permitted IF

1) the aid is secular in nature/ used only for secular purposes, and
2) when the aid is distributed among secular and religious institutions, the distribution criteria must be religiously neutral.

Question 2

A state enacted a law that prohibited the sale of violent video games to minors and imposed a fine for each violation. The legislative history demonstrated a concern that there was a correlation between playing such games and subsequent violent behavior. A maker of video games brought suit contending that this law violated its First Amendment right of free speech. Is this law unconstitutional?

A) Yes, because the costs of such a restriction on speech outweigh its benefits.
B) Yes, because the state law is a content-based restriction.
C) No, because video games do not qualify for First Amendment protection.
D) No, because states have the power to protect children from harm.

Answer 2

B) Yes, because the state law is a content-based restriction

The state law = content-based restriction
subject to strict scrutiny = regulations must be necessary to achieve a compelling government interest and narrowly tailored to meet that interest

Question 3

A public university adopted the following policy: In order to be recognized as a student organization with rights to school facilities and funds, an organization must permit any student to be a member regardless of the student’s status or beliefs. One student organization was a local chapter of a national organization that restricted membership in local chapters to members of a particular religious sect and denied membership to homosexual individuals. May the university apply its policy to the student religious group?

A) No, because the policy violates the First Amendment Free Exercise Clause.
B) No, because the policy violates the First Amendment Freedom of Association Clause.
C) Yes, because a public university is free to allocate its funds among student groups in any rational manner it sees fit.
D) Yes, because a public university is a limited public forum and the policy is viewpoint neutral.

Answer 3

D) Yes, because a public university is a limited public forum and the policy is viewpoint neutral.

Question 4

A state airport commission adopted a regulation prohibiting the solicitation of money inside airport terminals, but permitted the solicitation of money on the pathways outside the terminals where travelers were accessible. The commission adopted the regulation due to the disrupting effect solicitation had on travelers attempting to reach their gates, causing delays and congestion in the terminals. Fundraisers from an organization devoted to raising money to help cure cancer attempted to solicit donations in the airport terminal, and were detained for violating the regulation. The organization has challenged the constitutionality of the regulation. Is the regulation constitutional?

A) No, because a ban on all solicitation is not narrowly tailored to serve a significant government interest.
B) No, because the regulation preventing solicitation in airport terminals is not content neutral.
C) Yes, because the ban on solicitation is reasonably related to a legitimate government interest.
D) Yes, because the regulation leaves open ample alternative channels for communication on the sidewalks outside the airport terminals.

Answer 4

C) Yes, because the ban on solicitation is reasonably related to a legitimate government interest.

government may regulate speech-related activities in nonpublic forums as long as the regulation is
(i) viewpoint-neutral and
(ii) reasonably related to a legitimate governmental interest.

An airport terminal is considered a nonpublic forum.

Here, the ban on solicitation in the airport terminals is viewpoint-neutral because it prohibits all types of solicitation; it does not target solicitation based on the specific cause. The ban is also reasonably related to the legitimate governmental interest of avoiding a disruptive effect for travelers inside an airport terminal.

Question 5

The President issued an executive order in an effort to encourage U.S. citizens to use the metric (Celsius) system of temperatures. Section 1 of the executive order requires the U.S. Weather Bureau, a federal executive agency, to state temperatures only in Celsius in all weather reports. Section 2 of the executive order requires all privately owned federally licensed radio and television stations giving weather reports to report temperatures only in Celsius. No federal statute is applicable.

Is the President’s executive order constitutional?

(A) Section 1 is constitutional, but Section 2 is not.
(B) Section 2 is constitutional, but Section 1 is not.
(C) Sections 1 and 2 are constitutional.
(D) Sections 1 and 2 are unconstitutional.

Answer 5

(A) Section 1 is constitutional, but Section 2 is not.

The President, as the chief executive officer of the U.S. government, has authority to direct the actions of federal executive agencies, so long as the President’s directives are not inconsistent with an act of Congress. (The facts state that there is no applicable statute here.) Section 2 of the executive order is unconstitutional. At least as a general rule, the President does not have authority to direct the actions of persons outside the executive branch unless the President’s direction is authorized by an act of Congress. There are no circumstances presented in the facts (such as a sudden attack on the United States) that might justify an exception to this general rule.

Question 6

The childhood home of a former U.S. president is part of a national park located in a city. The National Park Service entered into a contract with an independent antique collector to acquire items owned by residents of the city during the former president’s lifetime. According to the contract, the collector purchases items and then sells them to the Park Service at a price equal to the collector’s cost plus a 10% commission. Purchases by antique collectors are ordinarily subject to the sales tax of the state in which the city is located. The collector has filed suit in state court to enjoin collection of the tax on these purchases for the Park Service, claiming that the sales tax is unconstitutional as applied to them.
Should the state court issue the injunction?

(A) No, because as the purchaser of the antiques, the collector, rather than the federal government, is liable for the tax.
(B) No, because the suit is within the exclusive jurisdiction of the federal courts.
(C) Yes, because the federal government is contractually obligated to pay the amount of the sales tax when the government covers the collector’s cost of the antiques.
(D) Yes, because under the supremacy clause, the federal program to acquire the antiques preempts the state sales tax on he purchase of these items.

Answer 6

(A) No, because as the purchaser of the antiques, the collector, rather than the federal government, is liable for the tax.

The responsibility for the state sales tax on the collector’s purchases of antiques is on the collector, who is independent of the National Park Service. The fact that the collector passes the cost of the tax on to a federal agency when the collector sells an item to the agency does not change the responsibility for the tax on the collector’s purchase

Note: There is no indication in the facts that the sales tax on the collector’s purchases conflicts with any federal law governing the Park Service’s program. Moreover, the responsibility for the state sales tax on the collector’s purchases of antiques is on the collector, who is independent of the National Park Service.

Question 7

Congress enacted a federal statute providing that any state may “require labeling to show the state or other geographic origin of citrus fruit that is imported into the receiving state.” Pursuant to the federal statute, a state that produced large quantities of citrus fruit enacted a law requiring all citrus fruit imported into the state to be stamped with a two-letter postal abbreviation signifying the state of the fruit’s origin. The law did not impose any such requirement for citrus fruit grown within the state. When it adopted the law, the state legislature declared that its purpose was to reduce the risks of infection of local citrus crops by itinerant diseases that have been found to attack citrus fruit. A national association of citrus growers has sued to have the state law declared unconstitutional. The association claims that the law is prohibited by the negative implications of the commerce clause of the Constitution.

Which of the following is the best argument in favor of the state’s effort to have this lawsuit dismissed?

(A) Any burden on interstate commerce imposed by the state law is outweighed by a legitimate state interest.
(B) Congress has the authority to authorize specified state regulations that would otherwise be prohibited by the negative implications of the commerce clause, and it has done so in this situation.
(C) The state law does not discriminate against out-of-state citrus growers or producers.
(D) The state law furthers a legitimate state interest, the burden it imposes on interstate commerce is only incidental, and the state’s interest cannot be satisfied by other means that are less burdensome to interstate commerce.

Answer 7

(B) Congress has the authority to authorize specified state regulations that would otherwise be prohibited by the negative implications of the commerce clause, and it has done so in this situation.

Congress may use its commerce power (Article I, Section 8, Clause 3 of the Constitution) to permit states to discriminate against interstate commerce. The federal statute here explicitly authorizes states to enact state-of-origin labeling requirements on imported citrus fruit.

Question 8

The President created an office to encourage the improvement of local communities through faith-based organizations. The office was funded from monies appropriated by Congress for the general discretionary use of the President. The office provided support only to religious organizations. A taxpayer brought suit in federal court challenging the constitutionality of this office. The federal government has moved to dismiss this suit.

Should the court allow the taxpayer’s suit to proceed?

A) Yes, because the funding of the office violates the First Amendment establishment of religion clause.
B) Yes, because the source of the funds for the office is a congressional appropriation.
C) No, because the plaintiff as a taxpayer lacks standing.
D) No, because the First Amendment establishment of religion clause does not apply to the executive branch.

Answer 8

C) No, because the plaintiff as a taxpayer lacks standing.

A taxpayer has standing when the taxpayer’s suit
(1) challenges legislation enacted under Congress’s taxing and spending power and
(2) alleges a violation of a specific constitutional limitation on that power

Here, the taxpayer has challenged the President’s expenditure of general discretionary funds—not the legislation enacted under Congress’s taxing and spending power that allocated those funds to the President

Note: The question is not asking about substantive law, but if the taxpayer has standing!

Question 9

In response to growing concerns about the overcrowding of landfills with scrap metal nationwide, Congress passed a statute requiring all unwanted vehicles to be disposed of at federally licensed auto-recycling facilities. These facilities were able to recycle more components of vehicles than most other recycling facilities. However, due to the high operating costs of these facilities, the cost of disposing of the vehicles was much higher than the cost of disposing of them at general-purpose recycling facilities. A state wants to dispose of its fleet of decommissioned trucks at a state-operated recycling facility. However, this facility is not federally licensed.

Is the state permitted to dispose of its decommissioned trucks at the state-operated facility?

A) No, because the federal statute was passed pursuant to Congress’s power to legislate for the general welfare.
B) No, because the federal statute regulates interstate commerce.
C) Yes, because the market-participant exception applies.
D) Yes, because states are given broad discretion in areas governed by the state’s police power.

Answer 9

B) No, because the federal statute regulates interstate commerce.

The commerce clause gives Congress broad authority to regulate interstate commerce—including in-state activities that substantially impact interstate commerce, singly or in the aggregate.

Here, the aggregate is an important issue

Note: The taxing and spending clause permits Congress to tax and spend (not legislate) for the general welfare

Note: The DCC does not authorize states to violate a federal statute (as seen here).

Question 10

The Judiciary Committee of the U.S. House of Representatives initiated impeachment proceedings against a federal district court judge. The President, a lifelong friend of the judge, considered the grounds for impeachment that were being discussed to be politically motivated and without substantial merit. Prior to any hearing on the matter by the House committee, the President pardoned the judge.

What effect does this pardon have on the impeachment proceedings against the judge?

A) The proceedings must stop, because the President’s power to pardon is plenary.
B) The proceedings must stop, because the President acted in good faith in granting the pardon.
C) The pardon has no effect on the proceedings, because a President’s power to pardon does not extend to impeachment.
D) The pardon has no effect on the proceedings, because a President may not pardon a person until that person has been convicted.

Answer 10

C) The pardon has no effect on the proceedings, because a President’s power to pardon does not extend to impeachment.

The President has the plenary power to grant reprieves and pardons to persons who commit federal offenses—except in cases of impeachment.

Question 11

A small, struggling, formerly industrial city in one state was only 30 miles from the border of a neighboring state and only 40 miles from a booming city in the neighboring state. In an effort to entice more citizens of the neighboring state to come to the small city to shop, dine, and otherwise spend money, the small city passed an ordinance relieving out-of-state citizens from paying the small city’s sales tax. A group of small-city citizens properly brought a suit against the city, challenging the ordinance.

Of the following constitutional provisions, which would be the basis on which the citizens could most effectively challenge the ordinance?

A) The due process clause of the Fifth Amendment.
B) The equal protection clause of the Fourteenth Amendment.
C) The privileges and immunities clause of Article IV, Section 2.
D) The privileges or immunities clause of the Fourteenth Amendment.

Answer 11

B) The equal protection clause of the Fourteenth Amendment.

1) Equal protection: Discriminatory treatment of similarly situated people

Here, the small city’s ordinance is discriminatory because out-of-state citizens are relieved from paying the small city’s sales tax while in-state citizens are not.

2) Due process:
+ Substantive – deprivation of life, liberty, or property without adequate justification

+ Procedural – deprivation of life, liberty, or property without adequate process

3) Privileges or immunities: Interference with rights of national citizenship – RARELY THE RIGHT ANSWER!

Note: The due process clause of the Fifth Amendment requires that the federal government give individuals notice and a meaningful opportunity to be heard when depriving them of life, liberty, or property. Here, the citizens are challenging a city ordinance, so this clause does not apply.

Question 12

Faced with poorly performing public schools in a city, the state instituted a state-funded voucher program for parents with school-age children who lived in the city. The state gave parents a voucher for each school-age child that could be used either toward tuition for the child to attend a private school in the child’s school district, whether parochial or not, or be presented to the child’s public school, which would receive the same amount in additional funding. The choice of whether to attend a private or public school was solely left to the parents and their child. Over 95 percent of the vouchers were used by parents toward tuition payments to parochial schools. The program contained no restrictions as to how the schools could use the funds.

Is this program constitutional?

A) No, because the primary effect of the program is to provide state aid to parochial schools.
B) No, because the program contains no provisions to prevent the use of state aid to fund religious instruction at the parochial schools.
C) Yes, because governmental financial assistance that benefits both religious and secular educational institutions is constitutional.
D) Yes, because the purpose of the program is secular and funding is only directed to religious institutions through individual choice.

Answer 12

D) Yes, because the purpose of the program is secular and funding is only directed to religious institutions through individual choice.

The government can provide indirect funding to religious institutions if the funding program comports with historical practices and understandings of the establishment clause—i.e., when funding flows to religious schools through individual, not government, choice.

Question 13

A religious leader ran a temple in honor of his sect’s gods. For weeks, the religious leader solicited numerous offerings from the community, including some cash donations, and explained to donors that the offerings would be “put toward the temple’s efforts to combat global warming.” After he collected these offerings, the religious leader burned all of them, including the cash, in a ritual offering to one of the gods to request divine assistance to counter the effects of global warming. The state charged the religious leader under a state statute that makes it a crime to make fraudulent claims in order to solicit monetary donations. The charge was based on the assertion that “the defendant should have known that the god does not exist and burning cash donations as a pious offering would have no effect on global warming.” The state has never brought a similar charge against leaders of other religions who collected donations.

Which of the following is the religious leader’s strongest constitutional defense to the charge?

A) The charge denies the religious leader’s free exercise of religion because the charge depends on the reasonableness of his sincerely held beliefs.
B) The charge denies the religious leader’s rights under the obligation of contracts clause because it criminalized the collection of voluntary monetary donations.
C) The charge violates the equal protection clause because no leaders of other religions have been charged under this statute.
D) The ministerial exception protects the religious leader from criminal liability under this statute based on the establishment and free exercise clauses of the First Amendment.

Answer 13

A) The charge denies the religious leader’s free exercise of religion because the charge depends on the reasonableness of his sincerely held beliefs.

Question 14

A state highway administration, acting pursuant to statutory authorization by the state legislature, has promulgated rules for large electronic billboards located along roads maintained by the state. These rules stem from concern about the potential for driver distraction and the ensuing adverse consequences for highway safety. Among the rules is one that bans the graphic display of violence. The producer of a movie wants to promote the movie through a short clip from the movie on billboards subject to this rule. The clip contains a graphic display of violence. The producer has filed an action in the appropriate federal court challenging the state highway administration’s rule as a violation of the First Amendment as applicable to the states through the Fourteenth Amendment.

By which of the following standards should the state highway administration’s rule be judged?

A) As a rule that deals with a matter traditionally subject to regulation, it must be upheld unless it is arbitrary or irrational.
B) As a regulation of commercial speech, there must be a reasonable fit between the government’s ends and the means chosen to accomplish those ends.
C) As a time, place, or manner restriction, it must be narrowly tailored to serve a significant governmental interest.
D) As a content regulation, it must be necessary to achieve a compelling governmental interest.

Answer 14

D) As a content regulation, it must be necessary to achieve a compelling governmental interest.

Content-based restrictions on speech are presumptively invalid and will be upheld only if they survive strict scrutiny—i.e., if the government proves that the restriction is necessary and narrowly tailored to achieve a compelling government interest.

Here, the state highway administration’s rule prohibits the graphic display of violence on large electronic billboards, so it should be judged as a content regulation

Question 15

Concerned with the proliferation of signs about upcoming events and the failure to remove those signs after the event, a city enacted an ordinance specifying that “all signs concerning upcoming events may not be placed more than 14 days before the event and must be removed within 7 days after the event; no more than 10 signs per event are allowed on city property.”

A social organization wants to display signs about its monthly dinner, which is held to attract new members, in greater number and for a longer period than permitted by the ordinance. The organization has filed a lawsuit challenging the constitutionality of the ordinance.

Of the following, by which standard will this ordinance be judged?

A) It must be narrowly tailored to further a significant government interest and leave open alternative channels of communication.
B) It must be necessary to achieve a compelling governmental interest and narrowly tailored to meet that interest.
C) It must be rationally related to a legitimate government interest.
D) It must not have a negative impact on the organization’s freedom of assembly.

Answer 15

B) It must be necessary to achieve a compelling governmental interest and narrowly tailored to meet that interest.

Content-based restrictions on speech are presumptively invalid and will only be upheld if they survive strict scrutiny— restriction is necessary and narrowly tailored to achieve a compelling government interest.

Here, the ordinance restricts the time period during which signs about upcoming events may be placed. It also restricts the number of those signs that may be placed on city property. Since the ordinance imposes these restrictions on one subject (upcoming events) but no others (e.g., candidacy for public office), it is a content-based restriction that is subject to strict scrutiny review.

Note: since the ordinance here is a content-based restriction, strict scrutiny applies.

Question 16

A professional basketball player who was a citizen of one state sued an artist who was a citizen of another state. The artist had created multiple oil paintings of the player’s image from which limited-edition prints were created and sold without the player’s permission or consent. The player sought damages in excess of $80,000 for violation of his state statutory right to publicity.

The state trial court ruled in the player’s favor, but the state appellate court overturned this decision on the basis that the free speech clause of the state constitution created a privilege that protected the artist from this action. In making its decision, the appellate court relied on a recent decision issued by the U.S. Supreme Court. The appellate court decision denied the player recovery on his state-based cause of action. The state’s highest court declined to hear the appeal. The player then filed a petition for writ of certiorari with the U.S. Supreme Court.

Can the Supreme Court grant this petition?

A) No, because the player seeks to recover damages from the artist under a state statutory cause of action.
B) No, because the state’s highest court did not render a decision in this case since it declined to hear the appeal.
C) Yes, because diversity of citizenship exists between the player and the artist and the amount in controversy exceeds $75,000.
D) Yes, because the state court decision relied on a recent decision issued by the U.S. Supreme Court.

Answer 16

D) Yes, because the state court decision relied on a recent decision issued by the U.S. Supreme Court.

The U.S. Supreme Court can choose to review final state-court decisions by certiorari unless the decision rests on adequate (state law fully resolves the matter) and independent (no federal precedent used) state grounds.

Question 17

A man was charged with violating a state criminal statute in state court. While prosecution was pending, the man filed a civil action under 42 U.S.C. § 1983 in federal district court, alleging that the state statute as applied to him violates the U.S. Constitution. The man sought an injunction against the state’s prosecution of him.

Should the federal district court hear the man’s claim?

A) No, because the man lacks standing since he has not been convicted and sentenced for a violation of the state statute.
B) No, because the man seeks an injunction against a pending state criminal proceeding.
C) Yes, because a federal court may enjoin the enforcement of an unconstitutional statute.
D) Yes, because the man has alleged that the state statute violates the U.S. Constitution.

Answer 17

B) No, because the man seeks an injunction against a pending state criminal proceeding.

Younger abstention doctrine: applied in declaratory or injunctive relief is sought in federal court. Requires abstention when such relief would interfere with a pending state proceeding on any criminal matter or a particular civil matter* that:

1) involves an important state interest and
2) provides an adequate opportunity to litigate the federal issue(s).

Question 18

A state legislature passed a law requiring employers to provide their employees with health insurance that covered certain prescription drugs. Violation of this statute was considered a crime that subjected the offender to fines, which were described in detail in the statute. The law was effective immediately.

An employer did not provide her employees with insurance that covered the required drugs and argued that such drugs were prohibited by the religion practiced by the employer. The employer filed a complaint in federal court asserting that the law was unconstitutional and asked for a preliminary injunction against the attorney general to prevent him from enforcing the statute while the case was being heard. The attorney general filed a motion to dismiss, asserting that the federal court did not have jurisdiction to hear the case.

How should the federal court rule on the attorney general’s motion to dismiss?

A) Deny the motion, because the employer has taxpayer standing due to the imposition of fines.
B) Deny the motion, because the employer’s injury is imminent.
C) Grant the motion based on prudential grounds.
D) Grant the motion based on the doctrine of abstention.

Answer 18

B) Deny the motion, because the employer’s injury is imminent.

A plaintiff has standing to sue in federal court if he/she allegedly
(1) suffered an injury-in-fact;
(2) was caused by the defendant’s challenged conduct; and
(3) is redressable by a favorable judicial decision.

Here, the state statute requires employers to provide employees with health insurance that covers certain prescription drugs. Employers who violate the statute are subject to monetary fines. As a result, the employer here will suffer imminent financial harm (injury-in-fact) when she is fined for violating the statute (causation). The court can prevent this injury by granting her request for a preliminary injunction (redressability).

Question 19

In order to discourage the transfer of electrical products that could threaten national security and to raise revenue, Congress enacted a statute that imposed a tax on the export of electrical products containing military-grade technology to countries that were determined to be hostile to the United States.

Is the federal tax likely constitutional?

A) No, because Congress does not have the power to tax exported goods.
B) No, because the tax unduly burdens foreign commerce.
C) Yes, because the commerce clause gives Congress the power to regulate foreign commerce.
D) Yes, because the taxing and spending clause gives Congress the power to tax for any public purpose.

Answer 19

A) No, because Congress does not have the power to tax exported goods.

Congress has broad power to tax and spend for the general welfare. However, Congress can never impose taxes on exported goods or services or on services and activities closely related to the export process.

Question 20

A violent storm resulted in severe property damage and extreme loss of life in States A, B, and C, which all became the subjects of emergency declarations by the President. The National Guard was present for three months in each state while recovery occurred. A year later, most of the damaged property had been reconstructed, and no current threat to life or property remained.

During a time of year when similar storms are common, the President instructed the National Guard to set up a presence within various points in all three states. Congress had previously enacted legislation allowing the President to deploy the National Guard in such a way. The President neither requested nor received authority from the governor of State C, the smallest state of the three, but he did receive authority from the governors of States A and B.

Was the President’s action constitutional?

A) No, because an emergency situation no longer existed at the time of the President’s order.
B) No, because the governor of State C did not authorize the presence of the National Guard.
C) Yes, because the President sent the National Guard to all three states.
D) Yes, because the President’s actions were aligned with permissible Congressional authority.

Answer 20

D) Yes, because the President’s actions were aligned with permissible Congressional authority.

Congress has the power to authorize the President to deploy the National Guard into action without the approval of the state governor to execute federal laws, suppress insurrections, or repel invasions.

Question 21

A federal statute established a life insurance exchange that allowed U.S. citizens and noncitizens to purchase affordable life insurance policies through it. U.S. citizens were immediately eligible to participate in the exchange, but resident noncitizens were not eligible to participate in it until they had resided in the U.S. for at least five years. A resident noncitizen who has resided in the U.S. for four years was denied eligibility pursuant to the statute and has filed suit in federal court challenging the statute on constitutional grounds. Specifically, the resident noncitizen claims that the statute violates the equal protection component of the Fifth Amendment due process clause.

Is the resident noncitizen likely to prevail?

A) No, because Congress has plenary authority over immigration and naturalization under Article I of the Constitution.
B) No, because the statute violates the privileges or immunities clause of the Fourteenth Amendment.
C) Yes, because national origin is a suspect classification that triggers strict scrutiny.
D) Yes, because the statute is not substantially related to an important government interest.

Answer 21

A) No, because Congress has plenary authority over immigration and naturalization under Article I of the Constitution.

The equal protection component of the Fifth Amendment requires federal laws based on U.S. citizenship to satisfy rational basis scrutiny. This level of scrutiny places the burden on the challenger to prove that the law is not rationally related to a legitimate government interest.

The U.S. Supreme Court has repeatedly held that Congress has a legitimate interest in providing benefits only to citizens because U.S. citizens have closer ties to the U.S. than noncitizen

Question 22

The District of Columbia government has the power to levy an income tax. In an effort to encourage nonresidents to conduct business in the District of Columbia, Congress enacted a federal statute that prohibits the District of Columbia from imposing an income tax on individuals who work there but reside elsewhere.

Is the statute likely to be found constitutional?

A) No, because it violates the equal protection component of the Fifth Amendment.
B) No, because it violates the uniformity clause of Article I, Section 8.
C) Yes, under the enclave clause in Article I, Section 8.
D) Yes, under the Sixteenth Amendment.

Answer 22

C) Yes, under the enclave clause in Article I, Section 8.

The Enclave clause gives Congress plenary (i.e., exclusive) legislative power to govern the District of Columbia.

Note: The Sixteenth Amendment gives Congress the power to impose an income tax without apportioning it among the states on the basis of population. However, the amendment does not apply here since the statute prohibits the imposition of an income tax on nonresidents who work in the District of Columbia.

Question 23

There has been a recent surge in the profitability of the agave nectar industry because more food and beverage manufacturers are utilizing agave in their food products instead of cane sugar. As a result, the cane sugar industry has been suffering economically. Agave plants are grown primarily in Mexico and South America. Congress recently enacted a statute placing a tariff on agave imported into the United States, causing the overall price of agave to increase.

An importer of agave into the United States has challenged the constitutionality of this statute because he lost significant business in the United States after having to raise the price of his imported agave products due to the import tariff.

Is the importer likely to succeed in his action?

A) No, because Congress has the power to regulate foreign commerce.
B) No, because the tariff does not place an undue burden on interstate commerce.
C) Yes, because the benefits of the tariff are clearly exceeded by the burden it places on interstate commerce.
D) Yes, because the tariff impedes the importer’s constitutional right to free trade.

Answer 23

A) No, because Congress has the power to regulate foreign commerce.

Commerce clause gives Congress plenary (i.e., absolute) authority to regulate foreign commerce, including power to impose tariffs (i.e., taxes) on imported goods like agave

Question 24

A tenured professor who had been employed for 30 years at a state university was dismissed. A week before the dismissal took effect, the professor was informed that she was being dismissed due to allegations of plagiarism in several of her published works. The professor was not given the opportunity to respond to the allegations against her prior to her dismissal. Shortly after her dismissal, the professor contested her termination in a post-termination evidentiary hearing, at which her termination was upheld. The professor then filed an action in federal court, arguing that her termination was unconstitutional as she was denied due process of law.

Was the professor’s termination constitutional?

A) No, because the professor was not granted a full evidentiary hearing prior to termination.
B) No, because the professor was not provided with a pre-termination opportunity to respond to the allegations of plagiarism.
C) Yes, because the professor could be terminated without cause, so no due process was required.
D) Yes, because the professor received notice of her dismissal and a post-termination hearing.

Answer 24

B) No, because the professor was not provided with a pre-termination opportunity to respond to the allegations of plagiarism.

A public employee who can only be terminated for cause has a property interest in such employment—and termination is a serious deprivation of that interest—due process requires that the employee receive:

1) notice of his/her alleged misconduct
2) a pre-termination opportunity to respond to that allegation and
3) a post-termination evidentiary hearing to determine if the termination was warranted.

Question 25

A policyholder sued her casualty insurance company for failing to timely pay a claim. The case reached the highest court of the state. The sole issue before the court was whether the policyholder was entitled to punitive damages. The company timely moved to recuse one of the appellate judges on the ground that the judge was pursuing a similar action against the insurance company seeking punitive damages in a state district court. Relying upon a recent U.S. Supreme Court decision to interpret state law, the judge determined that she did not need to recuse herself. As a result, the company's motion was denied. The judge later cast the deciding vote in the court's punitive damages decision in favor of the policyholder. The company timely and properly filed a petition for a writ of certiorari in the U.S. Supreme Court, seeking a review of the judge's decision not to recuse herself. Is the U.S. Supreme Court likely to review the state court's judgment? A) No, because the justice's refusal to recuse herself was based on adequate and independent state grounds. B) No, because the suit is moot. C) Yes, because the judge's refusal to recuse herself violated the due process clause of the Fourteenth Amendment. D) Yes, because the Supreme Court may correct any erroneous ruling by a state judge.

Answer 25

C) Yes, because the judge's refusal to recuse herself violated the due process clause of the Fourteenth Amendment. 14th Amendment Due Process: A judge must recuse him/herself from a case when (1) the judge has a direct, personal, substantial, pecuniary interest in it or (2) a serious, objective risk of actual bias exists.

Question 26

A state legislature enacted a statute that prohibits anyone convicted of a felony from voting in state elections. A group of released felons who had completed their sentences and paroles filed a class action in federal court, seeking a declaration that the statute violated their constitutional rights. Is the court likely to uphold the statute as constitutional? A) No, because it infringes upon the fundamental right to vote. B) No, because it violates the due process clause of the Fourteenth Amendment. C) Yes, because it is permitted by Section 2 of the Fourteenth Amendment. D) Yes, but only pursuant to the privileges and immunities clause of Article IV, Section 2.

Answer 26

C) Yes, because it is permitted by Section 2 of the Fourteenth Amendment. Section 2 of the Fourteenth Amendment permits states to prohibit felons—even those unconditionally released from prison—from voting in elections.

Question 27

n an effort to counteract a steep increase in fire-related injuries and deaths, a state legislature enacted a law that prohibited more than seven people over the age of 18 from residing in the same home unless those people were members of the same immediate family. Violation of the law was punishable by a monetary fine and imprisonment. The legislature enacted the state law based on a study that found relatives who reside with another are more likely to be injured or killed during a fire because they attempt to rescue one another before escaping to safety. The study alternatively recommended offering fire prevention and safety training to the public as an effective means of reducing fire-related injuries and deaths. A homeowner charged with violating the state law has filed suit in federal court to challenge its constitutionality. Is the state law constitutional? A) No, because family membership is not a suspect classification. B) No, because the law is not necessary to achieve a compelling state interest. C) Yes, because a state's police power authorizes it to punish criminal behavior with appropriate sanctions. D) Yes, because the law is rationally related to a legitimate state interest.

Answer 27

B) No, because the law is not necessary to achieve a compelling state interest. Laws that substantially impair a fundamental right—e.g., related persons' right to reside together in a single household—can be challenged on substantive due process grounds. Such laws are reviewed under strict scrutiny and rarely survive.

Question 28

A state legislature enacted a statute that required land-based casinos and riverboats to pay a 35 percent tax rate on the revenue generated by the slot machines they operate in the state. Several years after the statute was enacted, the state's riverboat industry suffered a severe financial depression. In an effort to aid the riverboat industry, the legislature lowered the revenue-tax rate on slot machines operated by riverboats to 20 percent because the revenues from slot machines represented a significant portion of the industry's income. An owner of a land-based casino has filed an action in federal court that challenges the statute's constitutionality. Is the owner likely to prevail? A) No, because the different tax rates are rationally related to a legitimate state interest. B) No, because the subsidy exception to the dormant commerce clause applies. C) Yes, because the statute violates the geographic uniformity requirement of Article I. D) Yes, because the tax discriminates against intrastate commerce.

Answer 28

A) No, because the different tax rates are rationally related to a legitimate state interest. Equal protection challenges are generally subject to rational basis scrutiny. This requires the challenger to prove that the discriminatory government action has no rational relation to a legitimate government interest. Here, the legislature lowered the revenue-tax rate paid by riverboats on the slot machines they operate to 20 percent. This modification of the tax rate was discriminatory because on-land casinos were still required to pay a 35 percent revenue tax on the slot machines they operated. However, since the riverboat industry was in financial peril and the slot revenue represented a significant portion of its income, the different tax rates were rationally related to the state's interest in aiding the riverboat industry.

Question 29

A state agency that issues licenses to real estate agents adopted a rule setting aside 10% of all licenses approved by the agency to racial minority groups. The purpose of the rule was to help redress the historical discrimination against these groups in the state and to help them achieve economic parity with other groups in society. An applicant who is not a racial minority and whose license application was denied has filed suit in federal court, arguing that the rule is unconstitutional. Assume that no federal statute applies. Is the agency's rule constitutional? A) No, because it is not substantially related to an important governmental interest. B) No, because it only remedies a general societal injustice. C) Yes, because it is intended to help remedy past race-based discrimination. D) Yes, because it is rationally related to a legitimate governmental interest.

Answer 29

B) No, because it only remedies a general societal injustice.

Question 30

The constitution of State X grants the state legislature the power to redraw state legislative districts every 10 years. In the last redistricting cycle, the legislature created a "majority-minority" district for the state senate in which the black population comprised a majority of the voters who resided in the district. The legislature's intent in creating this district was to increase the representation of black voters in the state senate because they had historically been disenfranchised in the state. A white resident of the legislative district is a registered voter. He filed suit in the appropriate court against the state legislators who drafted the redistricting map, challenging the district's creation as a violation of the equal protection clause of the Fourteenth Amendment. Seventy percent of the state's population is white. If the court agrees to hear the plaintiff's claim, is strict scrutiny the appropriate standard of review for the court to apply to this constitutional issue? A) No, because 70 percent of the state's population is white. B) No, because the redistricting favors voters who have historically been disenfranchised in the state. C) Yes, because the plaintiff is a racial minority in the majority-minority district. D) Yes, because race was the predominant factor in creating the majority-minority district.

Answer 30

D) Yes, because race was the predominant factor in creating the majority-minority district. Race cannot be the predominant factor used to draw boundary lines for state or federal legislative districts.

Question 31

An employee of a large nondenominational church served five years as the minister for the church's youth program. During the past year, the minister regularly missed work because he suffered from chronic migraine headaches. As a result of his frequent absences from work, the church's governing body voted to terminate the minister's employment. The minister filed suit against the church for monetary damages, alleging that its decision to terminate him violated a federal law that prohibits discrimination against public and private employees based on disability. In response, the church has filed a motion for summary judgment. How should the court proceed? A) Deny the motion, because the federal law is a law of general applicability. B) Deny the motion, because the minister's due process rights were violated. C) Grant the motion, because the free exercise clause requires dismissal of the suit. D) Grant the motion, because the minister does not have standing to sue.

Answer 31

C) Grant the motion, because the free exercise clause requires dismissal of the suit. Ministerial exception protects religious organizations from civil liability for employment discrimination when they hire or fire employees who serve in ministerial roles. Since the minister's primary function was to advance the church's religious mission, the church was immune from civil liability for its decision to terminate him.

Question 32

A defendant was on trial for the murder of a police officer, which was allegedly ordered by the kingpin of a drug cartel known to be operating in the city. Because of the highly publicized nature of the case, the prosecution requested that the trial court issue a gag order that prohibited the publication of information about the proceedings. The purpose of the gag order was to prevent the release of sensitive information that might impair ongoing undercover investigations of other cartel members. The prosecution also requested that the court issue an order for a closed trial to protect the identities of witnesses, who feared violent repercussions if they testified. After hearing arguments by the prosecution and the defense, the trial court issued the requested gag order and order for a closed trial. The court issued findings on the record and concluded that the publication of information about the proceedings might impair undercover investigations and that public attendance would endanger the lives of those witnesses who testified at trial. Several newspapers that sought to attend and report about the trial appealed the orders, arguing that they were unconstitutional. How should the appellate court rule? A) Overturn both orders. B) Overturn the order for a closed trial but uphold the gag order. C) Uphold the order for a closed trial but overturn the gag order. D) Uphold both orders.

Answer 32

A) Overturn both orders. The First Amendment protects the right to publish lawfully obtained, truthful information about matters of public significance and the right to attend a criminal trial. Government actions that abridge those rights must survive strict scrutiny—i.e., they must be the least restrictive means to achieve a compelling government interest.

Question 33

A student joined a small national organization during her freshman year of college after several of her friends, who were active in the organization, told her about the organization's annual all-expenses paid ski trip for its card-carrying members. The student attended a recruitment drive, signed a pledge of loyalty, paid her annual dues, and received an organization pin. The student later joined other members of the organization at the ski resort. During a meeting around the ski lodge fireplace, the student learned for the first time that the organization was a radical organization. The organization's members were preparing to use subversive means to achieve their objective of installing the organization's spiritual leader as Supreme Dictator of the United States. To this end, the organization was stockpiling mind-control serum and planned to poison the nation's water supply. After returning home, the student consciously avoided members of the organization and never participated in the organization's activities again. However, the student's name remained on the organization's active-member roster, and she did not report the organization's illegal objectives to the authorities. Three years later, the student was offered employment at a federal agency. However, the agency rescinded the offer before the student accepted it because a background check revealed that she was still an active member of the organization. Was the agency's action constitutional? A) No, because the student did not intend to install the organization's spiritual leader as Supreme Dictator of the United States. B) No, because the student did not personally participate in the organization's subversive plot. C) Yes, because the student continues to be listed as an active member of a subversive organization. D) Yes, because the student had knowledge of the organization's illegal objectives and failed to report them to the authorities.

Answer 33

A) No, because the student did not intend to install the organization's spiritual leader as Supreme Dictator of the United States. First Amendment Right of Association - not absolute, so government can punish (deny public employment) to people who: 1) are active members of a subversive organization 2) know of the organization's illegal objectives and 3) specifically intend to further those objectives.

Question 34

Congress enacted a statute that awards federal funds to school districts that provide adequate educational services to children with special needs. The statute grants a cause of action to parents against a school district that fails to provide adequate services to their children in accordance with the statute, and contains an inseverable condition requiring the award of attorney's fees to parties that prevail in lawsuits based on violations of the statute. However, the statute is silent about whether expert fees must be awarded to parties that prevail in these lawsuits. The parents of a child with special needs successfully sued their local school district for violating the federal statute. The court awarded damages, including attorney's fees and expert fees. Which argument provides the strongest constitutional basis for the school district to challenge the court's award of expert fees? A) Conditions imposed by Congress in the exercise of its spending power must be set out unambiguously. B) Congress can only exercise its spending power to carry out another enumerated power. C) The Eleventh Amendment prohibits suits by private citizens against local governmental entities. D) The Tenth Amendment reserves to the states all powers that the Constitution does not expressly grant to the federal government.

Answer 34

A) Conditions imposed by Congress in the exercise of its spending power must be set out unambiguously. Conditional federal funding is binding only if the conditions are clearly stated and unambiguous so that potential recipients of federal funds (e.g., local governments) may make an informed decision. Note: spending clause grants Congress the power to enact laws that incentivize local governments to act in certain ways by placing conditions on their receipt of federal funds

Question 35

A federal law provides that a U.S. citizen who votes in a foreign election forfeits U.S. citizenship. An individual who is a naturalized citizen of the United States votes in a national election held in her birth country. Based on the law, the State Department has refused to renew the individual's passport. The individual has filed an action in federal court for a declaratory judgment that the law is unconstitutional because it deprives her of U.S. citizenship. Is the court likely to find that the law is constitutional? A) No, because Congress may not revoke the citizenship of a U.S. citizen that is obtained in good faith and without fraud. B) No, because the law violates the privileges and immunities clause of Article IV. C) Yes, because Congress has exclusive authority over naturalization. D) Yes, because of the elections clause in Article I, Section 4.

Answer 35

A) No, because Congress may not revoke the citizenship of a U.S. citizen that is obtained in good faith and without fraud. Congress has plenary (i.e., exclusive) power to regulate naturalization—i.e., the process through which noncitizens obtain U.S. citizenship. But the Fourteenth Amendment limits this power by prohibiting Congress from revoking the citizenship of any U.S. citizen without his/her consent unless that citizenship was obtained by fraud or in bad faith.

Question 36

In order to save money, a state adopted a law restricting voting times and reducing the number of polling sites on Election Day. The law does not significantly impact the ability of voters to cast their ballots. The law applies to all state, local, and congressional elections occurring on Election Day. Does Congress have the authority to override the law? A) No, because the limitations are unrelated to the suppression of ideas. B) No, because the voters' ability to cast their ballots is not significantly impacted. C) Yes, because the state cannot limit state or federal voting practices. D) Yes, because the state law regulates congressional elections.

Answer 36

D) Yes, because the state law regulates congressional elections. State legislatures have the power to enact laws that regulate the time, place, and manner of congressional elections (e.g., by establishing voting sites). But the clause also grants Congress the power to override those state laws by supplanting them with federal law.

Question 37

Congress recently enacted a federal statute creating a five-member commission whose purpose is to identify and prevent threats to national security. The statute grants the members of the commission broad discretion and administrative and enforcement powers to conduct investigations into possible security threats. Commission members are required to report the results of their investigations to the Secretary of Homeland Security, who was appointed by the President with the advice and consent of the Senate. Upon receiving the investigation results, the Secretary advises the President on what, if any, action should be taken to address potential national security threats. The statute permits the President to appoint the members of the commission, which she did without seeking Senate approval. Was the appointment of the commission members by the President constitutionally permissible? A) No, because Congress cannot delegate this appointment to the President. B) No, because the President needs the consent of the Senate to make these appointments. C) Yes, because Congress can appoint members with administrative and enforcement powers. D) Yes, because Congress can delegate these appointments to the President without Senate approval.

Answer 37

D) Yes, because Congress can delegate these appointments to the President without Senate approval. The appointments clause grants Congress the power to delegate the appointment of inferior federal officers to the President alone (i.e., without Senate approval), the heads of executive-branch agencies, or the federal courts.

Question 38

Congress recently enacted a federal statute that created a 10-member board with the authority to investigate methods to preserve endangered species of fish. The statute authorizes the board to issue and enforce rules that are necessary to prevent endangered species of fish from becoming extinct. The statute provides for four of the board members to be appointed by the President with the advice and consent of the Senate. Three members are to be selected by the Majority Leader of the Senate and three by the Speaker of the House of Representatives. Each member serves on the board during good behavior and can only be removed for good cause. Is the statute unconstitutional? A) No, because the congressional power to legislate for the general welfare permits Congress to delegate rulemaking authority to the board. B) No, because the necessary and proper clause authorizes Congress to determine the means by which members are appointed to boards created by Congress. C) Yes, because all members of federal boards exercising executive powers must be appointed by the President or in a manner otherwise consistent with the appointments clause of Article II. D) Yes, because Congress cannot delegate rulemaking authority to the executive branch without providing clear guidelines.

Answer 38

C) Yes, because all members of federal boards exercising executive powers must be appointed by the President or in a manner otherwise consistent with the appointments clause of Article II. Federal officers: (1) hold a continuing public office and (2) have significant discretionary authority to administer and/or enforce laws (i.e., executive powers). Must be appointed by the President or in a manner otherwise consistent with the Article II appointments clause, which does not permit congressional appointments.

Question 39

The United States Department of State adopted a rule that required passports issued to U.S. citizens born in a disputed territory to list their city of birth, rather than the country of birth, because the President had not formally recognized the foreign government that occupied the disputed territory. In response, Congress enacted legislation that required the Department of State to issue passports that listed the disputed territory as the birthplace of U.S. citizens who were born there. A U.S. citizen born in the disputed territory applied for a passport, which was issued by the Department of State. Though the citizen listed the territory on his application, the Department of State listed the citizen's city of birth as his birthplace. Wanting his passport reissued with the territory listed, the citizen seeks to enjoin enforcement of the Department of State's rule in an appropriate federal district court. How should the court respond? A) Deny the injunction, because the President has exclusive power to recognize foreign governments. B) Grant the injunction, because Congress may override the President's decision to recognize foreign governments. C) Refuse to hear the matter as a nonjusticiable political question. D) Refuse to hear the matter because the citizen lacks standing.

Answer 39

A) Deny the injunction, because the President has exclusive power to recognize foreign governments. When the President does not share power with Congress over a particular area—e.g., recognizing foreign governments—the President can exercise that exclusive Article II power without congressional interference.

Question 40

Congress enacted and the President signed into law a federal statute that delegated the primary responsibility for developing and administering a toxic waste disposal program to a federal agency based on intelligible standards set forth in the statute. The statute also authorized the creation of a toxic waste fund that imposed the cost of disposing toxic waste onto the creators of such waste through a statutorily fixed fee. The statute requires the secretary of the federal agency to annually evaluate the fees that are collected to ensure that they offset the costs of the waste disposal program. If not, the secretary is required to adjust the amount of the fee accordingly. The statute provides that the secretary's adjusted fee becomes effective 90 days after publication unless both houses of Congress adopt a concurrent resolution disapproving of the adjustment. This year, the secretary proposed a fee increase pursuant to statutory authority. Both houses of Congress disapproved of the increase by resolution. Is a challenge to the constitutionality of this provision likely to be successful? A) No, because the President approved of the provision by signing the statute into law. B) No, because the principle of bicameralism has been satisfied. C) Yes, because the provision provides for a legislative veto of an executive action. D) Yes, because the statute violates the nondelegation doctrine.

Answer 40

C) Yes, because the provision provides for a legislative veto of an executive action. Once Congress delegates power to an executive agency, it cannot interfere with the agency's functions without satisfying the legislative-action process. Any attempt to bypass this process is an unconstitutional legislative veto. Bicameralism = Bill passes in both houses Presentement = Bill goes to President for further action

Question 41

State A derived much of its business from tourism based upon privately owned cruise lines incorporated in State A. State B, which is located just north of State A, recently enacted a statute creating an annual licensing requirement for any cruise line not incorporated in State B that uses State B's ports. The licensing process was costly, and the licenses were difficult to obtain. There was no similar licensing requirement for State B cruise lines using the ports in State B. The cruise lines in State A typically travel north and must use the State B ports in order to maintain the facilities and services they offer. Congress has not enacted legislation regarding the regulation of cruise lines using out-of-state ports. If a cruise line located in State A challenges the constitutionality of the State B licensing requirement, which of the following would provide the strongest argument against the requirement? A) The Article I commerce clause. B) The Article IV privileges and immunities clause. C) The Fourteenth Amendment due process clause. D) The Fourteenth Amendment equal protection clause.

Answer 41

A) The Article I commerce clause. Here, the State B statute discriminates against out-of-state commerce by imposing an annual licensing requirement on cruise lines that are not incorporated in State B but use its ports. And there is no indication that the statute furthers a legitimate noneconomic interest—e.g., ensuring the competency and safety of cruise lines that operate in State B. Therefore, the Article I commerce clause provides the strongest argument against the constitutionality of the State B licensing requirement. Note: The Article IV privileges and immunities clause prohibits states from discriminating against ***citizens*** of other states by denying them a right of state citizenship. But corporations (like cruise lines) are not considered citizens under this clause, so this clause does not apply.

Question 42

Congress enacted a statute authorizing states to regulate and tax the financial services industry, even if the regulation or taxation otherwise discriminates against out-of-state commerce. A state enacted a statute that taxed all out-of-state financial services entities doing business in the state but did not tax in-state financial services entities doing business in the state. The purpose of the tax was to encourage the growth of the in-state financial services industry. Assuming that the state statute is consistent with federal statutes regulating the financial services industry, is it constitutional? A) No, because it violates the dormant commerce clause. B) No, because it violates the equal protection clause of the Fourteenth Amendment. C) Yes, because a state may tax a corporation doing business in the state. D) Yes, because Congress specifically permitted this type of statute.

Answer 42

B) No, because it violates the equal protection clause of the Fourteenth Amendment. Equal protection challenges to discriminatory state taxes are subject to rational basis review. Although encouraging the growth of an industry within a state is permissible, promoting domestic (i.e., in-state) business by discriminating against nonresident competitors is unconstitutional. Note: Even when Congress has authorized conduct that would otherwise violate the dormant commerce clause, states must comply with other constitutional provisions when engaging in that conduct. This includes the Fourteenth Amendment equal protection clause, which subjects discriminatory state taxes to rational basis review. This level of review requires that the discriminatory state tax rationally relate to a legitimate government interest.

Question 43

A patient at a government-licensed, private nursing facility received financial assistance from the government for the medical care he received. The patient's status was reviewed by a committee of physicians working at the facility to determine whether his level of care was appropriate and whether his continued stay in the facility was justified. The committee determined that the patient no longer needed the level of care provided by the facility and ordered his transfer to another nursing facility that offered a lower level of care. Since the patient received financial support through a government-funded program, the committee notified the appropriate governmental official who administered the program. The official in turn contacted the patient and informed him that due to the decision of the committee of physicians, his medical financial assistance would be terminated unless he accepted the transfer. The patient was properly notified of an administrative hearing by the governmental agency that administered the program, and the hearing confirmed the official's decision to terminate the patient's medical financial assistance unless he accepted the transfer. The patient sued the nursing facility for injunctive relief, contending that he was unconstitutionally denied his procedural due process rights with regard to the initial review of his status by the committee of physicians because he did not receive notice of the review or an opportunity to be heard. Is the court likely to rule in favor of the patient? A) No, because the decision was made by a committee of physicians working at a private nursing facility. B) No, because the patient's procedural due process rights were satisfied by notice and the administrative hearing. C) Yes, because the nursing facility received substantial funding from the government. D) Yes, because the nursing facility was licensed by the government.

Answer 43

A) No, because the decision was made by a committee of physicians working at a private nursing facility. Private actors are treated as government actors when they perform a traditional government function or the government is significantly involved in their activities. BUT government funding (however substantial) or licensing does not trigger this doctrine. Note: The state satisfied the patient's procedural due process rights when the government agency provided him notice and a meaningful opportunity to be heard (i.e., an administrative hearing) before terminating his financial assistance. But this is not a basis for the court to rule in the patient's favor since his due process challenge is based on the nursing facility's decision to discontinue his care—not the state's decision to terminate his benefits.

Question 44

Condominiums located within a particular city block were known to be the center of illegal narcotics sales. Many individuals living within that city block had been arrested multiple times in connection with the illegal sales, and neighbors were outraged that the local police department did not attempt to do something more severe than individual, sporadic arrests. The city took action by filing an action in the appropriate federal district court seeking the forfeiture of real and personal property involved in the illegal narcotics sales. After an ex parte hearing at which only the city was present, the court properly issued a warrant of arrest authorizing the seizure of private property. The city seized all condominiums that were located within the city block and any car that was known to have transported illegal narcotics. A man whose condominium and car were seized in connection with the alleged crimes filed suit, alleging that he was not given prior notice of the city's intent to seize his condominium and vehicle. Were the seizures of the condominium and the vehicle proper in light of the principles of procedural due process? A) The seizure of the condominium and the vehicle were both improper. B) The seizure of the condominium was proper, but the seizure of the vehicle was improper. C) The seizure of the vehicle was proper, but the seizure of the condominium was improper. D) The seizure of neither the condominium nor the vehicle was improper.

Answer 44

C) The seizure of the vehicle was proper, but the seizure of the condominium was improper. In civil forfeiture actions, procedural due process requires that the government satisfy certain conditions when it seizes real or personal property prior to providing notice and a hearing. Here, the city seized the man's car without providing him notice and a hearing. The car was known to have transported illegal narcotics, so the seizure served the city's significant interest in preventing the car from being used for illegal activity in the future. That interest would have been frustrated by providing advance notice of the seizure since the car could have been moved or concealed before it was seized. The city also seized the man's condominium without providing him notice and a hearing. To determine whether real property may be seized by the government prior to providing notice and a hearing, the court must balance three factors 1) the private interest affected by the deprivation 2) the risk of erroneous deprivation of that interest through current procedures and the probable value of additional or substitute procedural safeguards and 3) the government's interest, including the fiscal and administrative burdens that other safeguards would entail.

Question 45

After a trademarked cartoon character was almost elected as mayor of a small town as a write-in candidate, the state in which the town is located enacted a statute that bans write-in candidates for local elective office. The statute also requires candidates for local elective office to obtain a specified number of voter signatures in order to appear on the official election ballot. The purpose of the statute is to ensure that only candidates who have strong support among the voters are placed on the ballot. A man who was a candidate for local elective office failed to obtain enough voter signatures to appear on the ballot. The man has brought an action in federal district court challenging the constitutionality of the statute. Is the statute constitutional? A) No, because it restricts the fundamental rights of voters to vote for write-in candidates. B) No, because it restricts the man's right to access the ballot. C) Yes, because it is authorized by the elections clause. D) Yes, because it is a reasonable restriction to further the state's legitimate interest.

Answer 45

D) Yes, because it is a reasonable restriction to further the state's legitimate interest. State electoral regulations must comply with the First Amendment freedom of association (applicable through the Fourteenth Amendment) and Fourteenth Amendment equal protection clauses. Standard of review: depends on whether the burden imposed is ordinary (rational basis) or severe (strict scrutiny).

Question 46

A state statute regulates the homeschooling of a child by the child's parent or guardian. The statute specifies the academic subjects that must be taught and the number of hours of educational instruction the child must receive during an academic year. In addition, the statute requires that the child's instructor possess at least a high school diploma or its equivalent. The parents of an elementary-school-age child who is homeschooled have challenged these requirements in federal court as violating their due process rights regarding their child's education. How should the court rule on the parents' challenge to these requirements? A) The court must strike them down, because parents have a fundamental right to control their child's education. B) The court must uphold them as a valid exercise of the state's police powers, because a state may compel a child to attend public school. C) The court must uphold them, because education has been an area of traditional state concern. D) The court must uphold them, because they impose reasonable educational standards on homeschooling.

Answer 46

D) The court must uphold them, because they impose reasonable educational standards on homeschooling. Parental rights: not absolute, so states may impose reasonable educational standards on schools without violating the due process clause.

Question 47

n an effort to reduce workplace shootings, a state legislature enacted a statute that requires individuals with a mental illness to wait seven days before they take possession of a firearm after purchasing it. After an increase in crime in his neighborhood, a bank executive with a bipolar disorder attempted to immediately purchase a firearm but was forced to wait seven days before he took possession of it. The executive has filed suit in federal court, arguing that the statute is unconstitutional because it interferes with his right to bear arms. Is the statute likely constitutional? A) No, because the Second Amendment guarantees the absolute right to possess and use firearms. B) No, because the statute discriminates against a protected class. C) Yes, because imposing conditions and qualifications on commercial sales of firearms is permissible. D) Yes, because the statute is rationally related to a legitimate government purpose.

Answer 47

C) Yes, because imposing conditions and qualifications on commercial sales of firearms is permissible. Right to bear arms: not absolute, so certain government restrictions are permissible—e.g., imposing conditions and qualifications on commercial sales of firearms. Note: SCOTUS has never determined whether rational basis or strict scrutiny review applies to restrictions on the Second Amendment right to bear arms. Instead, such restrictions must not interfere with a traditionally lawful purpose for possessing and using firearms.

Question 48

A state statute provides for a reduction in the property tax assessed against any residential dwelling located in a particular economically depressed area of the largest city in the state. The purpose of the statute is to encourage homeownership in the designated area and thereby improve the economic well-being of the residents living there. The statute provides that, in order to qualify for this tax break, the homeowner must be a citizen of the United States. Is the statute likely constitutional? A) No, because state classifications based on citizenship are impermissible unless explicitly authorized by an act of Congress. B) No, because the state cannot demonstrate that the citizenship requirement is necessary to achieve a compelling state interest. C) Yes, because the citizenship requirement is rationally related to a legitimate state interest. D) Yes, because the Tenth Amendment reserves to the states plenary authority to construct a tax system.

Answer 48

B) No, because the state cannot demonstrate that the citizenship requirement is necessary to achieve a compelling state interest. Laws that impose citizenship requirements discriminate against resident noncitizens (a suspect class). As a result, these laws violate the equal protection clause unless they pass strict scrutiny—i.e., the state shows that the law is necessary to achieve a compelling state interest.

Question 49

A manufacturer entered into a contract with the United States Forest Service, an agency of the federal government, to construct a special plane to be used by the Forest Service in fighting forest fires. The supplier of the plane's materials obtained, under state law, a valid lien upon the plane for the cost of the materials that the supplier provided to the manufacturer. Shortly before construction was completed, the manufacturer ceased operations and the Forest Service, as permitted by the terms of the contract, took title to the plane. The supplier's otherwise valid lien is now unenforceable against the Forest Service because of the doctrine of sovereign immunity. Has there been an unconstitutional taking of the supplier's property? A) No, because the supplier's lien was not a possessory interest in the plane. B) No, because the supplier's property interest was an interest in personal, not real, property. C) Yes, because the Forest Service's action effectively eliminated the supplier's lien on the plane. D) Yes, because the takings clause applies to state action through the Fourteenth Amendment.

Answer 49

C) Yes, because the Forest Service's action effectively eliminated the supplier's lien on the plane. A Fifth Amendment taking occurs when the government destroys private property or property rights—including possessory and nonpossessory interests in land (e.g., easements, liens). Here, the lien became unenforceable when the Forest Service took title to the plane because property owned by the federal government is immune from liens. Therefore, an unconstitutional taking of the supplier's property occurred because the Forest Service's action effectively eliminated the supplier's lien on the plane.

Question 50

Motivated by a desire to prevent animal cruelty, an animal-rights group frequently broke into the facilities of companies that conducted testing on animals. These break-ins usually occurred after the animal-rights group had picketed a company's facility. To prevent this type of criminal activism, a city enacted an ordinance that prohibited picketing against animal testing on public sidewalks. After the ordinance was enacted, the animal-rights group picketed on a public sidewalk outside the facility of a company that conducted testing on animals for beauty products. Members of the animal-rights group who were arrested for violating the ordinance have challenged its constitutionality. Assuming no federal law is applicable and the members have standing, are they likely to succeed in their challenge? A) No, because the ordinance furthers the important governmental interest of preventing criminal activism. B) No, because the ordinance provides ample alternative channels for the members to communicate their concerns. C) Yes, because regulation of speech in advance of its expression is always unconstitutional. D) Yes, because the city cannot demonstrate that the ordinance was necessary to serve a compelling government interest.

Answer 50

D) Yes, because the city cannot demonstrate that the ordinance was necessary to serve a compelling government interest. The government cannot impose content-based restrictions on speech in public forums unless it can satisfy strict scrutiny— restrictions are necessary and narrowly tailored to achieve a compelling government interest.

Question 51

A state adopted a nonpartisan blanket primary election system, which permits voters to vote for any candidate and advances the top two vote-getters to the general election. The system requires candidates for state office to be identified on the official election ballot by their self-designated "party preference." The purpose of this requirement is to provide voters with relevant information about candidates on the ballot. Is this primary election system likely to withstand a constitutional challenge? A) No, because a nonpartisan blanket primary election system is per se unconstitutional. B) No, because states must permit candidates to designate their party affiliation on the ballot. C) Yes, because states have plenary authority to regulate state elections. D) Yes, because the statute is rationally related to a legitimate state interest.

Answer 51

D) Yes, because the statute is rationally related to a legitimate state interest. State electoral regulations must comply with the First Amendment freedom of association (applicable through the Fourteenth Amendment). The standard for reviewing such regulations depends on whether the burden imposed is ordinary (rational basis) or severe (strict scrutiny). Note: The Article I elections clause of the Constitution grants states the power to regulate their own elections—e.g., by establishing a nonpartisan blanket primary election system

Question 52

Congress enacted a statute that awards federal funds to school districts that provide adequate educational services to children with special needs. The statute grants a cause of action to parents against a school district that fails to provide adequate services to their children in accordance with the statute, and contains an inseverable condition requiring the award of attorney's fees to parties that prevail in lawsuits based on violations of the statute. However, the statute is silent about whether expert fees must be awarded to parties that prevail in these lawsuits. The parents of a child with special needs successfully sued their local school district for violating the federal statute. The court awarded damages, including attorney's fees and expert fees. Which argument provides the strongest constitutional basis for the school district to challenge the court's award of expert fees? A) Conditions imposed by Congress in the exercise of its spending power must be set out unambiguously. B) Congress can only exercise its spending power to carry out another enumerated power. C) The Eleventh Amendment prohibits suits by private citizens against local governmental entities. D) The Tenth Amendment reserves to the states all powers that the Constitution does not expressly grant to the federal government.

Answer 52

A) Conditions imposed by Congress in the exercise of its spending power must be set out unambiguously.

Question 53

The President of the United States, in the waning days of his administration, issued a conditional pardon to a government official after the official had been convicted of a federal offense and sentenced to prison. After the President left office, a dispute arose as to whether the official had satisfied the condition. Under the new administration, the official was taken into custody to serve his sentence. The official challenged his custody through a writ of habeas corpus filed with a federal district court, which granted the official relief. The current administration appealed the district court decision to the Supreme Court, which agreed to review the district court's decision pursuant to a prior act of Congress that expressly permitted the Supreme Court to do so. Congress, controlled by the same political party to which the President and the official belonged, then repealed the law that had permitted the Supreme Court to review a federal district court's habeas corpus decision. Which of the following is the strongest argument defending the constitutionality of Congress's repeal of the law? A) Article I, Section 9 of the Constitution generally prohibits the suspension of the writ of habeas corpus. B) Article II, Section 2 of the Constitution grants the pardoning power to the President. C) Article III, Section 2 of the Constitution grants Congress the power to make exceptions to the Supreme Court's appellate jurisdiction. D) Marbury v. Madison established the right of the Supreme Court to review the constitutionality of Congressional acts.

Answer 53

C) Article III, Section 2 of the Constitution grants Congress the power to make exceptions to the Supreme Court's appellate jurisdiction. Note: Article 1, Section 9 does generally prohibit the suspension of the writ of habeas corpus. But here, Congress did not preclude the federal judiciary from entertaining or ruling on a writ of habeas corpus. It merely limited SCOTUS's power to exercise appellate jurisdiction over a district court's decision to grant or deny the writ.

Question 54

Under a federal statute, a business had a valid, mature claim for compensation against a corporation, which the corporation refused to pay. The business properly assigned all rights to this claim to an assignee who agreed to litigate the claim in exchange for a fee and return any recovery received to the business. In the subsequent lawsuit filed by the assignee in federal court, the defendant corporation filed a motion to dismiss the action. Should the court grant this motion? A) No, because standing is not required unless a constitutional right is violated. B) No, because the assignee has standing to litigate this claim. C) Yes, because any recovery would not redress an injury suffered by the assignee. D) Yes, because the assignee has not suffered an injury-in-fact.

Answer 54

B) No, because the assignee has standing to litigate this claim An assignee has standing to sue to enforce the rights of the assignor provided that (1) the requirements for standing (injury-in-fact, causation, redressability) are met *and* (2) the assignment was made for ordinary business purposes and in good faith.

Question 55

Compared to traditional incandescent light bulbs, energy-efficient light bulbs typically use approximately 25% to 80% less energy. Although most manufacturers of light bulbs have switched to making energy-efficient light bulbs, manufacturers of light bulbs in 10 states still only make traditional incandescent light bulbs. In order to discourage the use of traditional incandescent bulbs, which accelerates the negative consequences of climate change and results in more waste in landfills, Congress imposed a tax on the sale of traditional light bulbs by any manufacturer. The stated purpose of the tax is to generate revenue to help further research to prevent climate change. Is this tax likely constitutional? A) No, because the tax violates the equal protection component of the Fifth Amendment. B) No, because this direct tax will not be apportioned evenly among the states. C) Yes, because the tax is necessary to further a compelling governmental interest. D) Yes, because there is geographical uniformity in the application of the tax.

Answer 55

D) Yes, because there is geographical uniformity in the application of the tax. Indirect federal taxes comply with the taxing and spending clause so long as they are (1) identical in every state where the taxed goods are located (i.e., geographically uniform) ***and*** (2) reasonably related to revenue production. Note: Strict scrutiny requires the government to demonstrate that its actions were necessary to serve a compelling governmental interest (e.g., compelling public purpose). But this heightened level of scrutiny only applies when those actions substantially impact a fundamental right or suspect class—neither of which was affected here.

Question 56

Concerned with the federal budget deficit, Congress sought to raise $100 million in revenue by enacting a tax on all real-property interests within the United States. A fixed rate is applied uniformly throughout the United States to the fair market value of these interests. Is this tax constitutional? A) No, because it was not apportioned proportionately among the states based on each state's population. B) No, because taxes on real-property interests are historically a matter left to state and local governments. C) Yes, because it was uniformly applied throughout the United States. D) Yes, because of the Sixteenth Amendment to the Constitution.

Answer 56

A) No, because it was not apportioned proportionately among the states based on each state's population. Direct federal taxes comply with the taxing and spending clause so long as they are (1) apportioned proportionately among the states based on each state's population ***and*** (2) reasonably related to revenue production. Note: Historically, taxes on real property (i.e., property taxes) have been imposed primarily by state and local governments. Nevertheless, the taxing and spending clause authorizes Congress to impose a property tax, provided it is apportioned proportionately among the states and reasonably related to revenue production.

Question 57

A federal act seeks to encourage the conservation of migratory nongame birds by providing funding to private organizations for conservation activities. The act serves to implement a non-self-executing treaty entered into by the President that has been ratified by the Senate. Which of the following statements about the act is accurate? A) This act is constitutional, because Congress can enact laws that are necessary and proper to carry into effect a treaty. B) This act is constitutional, under Congress's general police power. C) This act is unconstitutional, because Article I of the U.S. Constitution does not authorize Congress to legislate with respect to treaties. D) This act is unconstitutional, because Congress cannot allocate federal funds to private organizations.

Answer 57

A) This act is constitutional, because Congress can enact laws that are necessary and proper to carry into effect a treaty. Article II: grants the President certain express powers, including the power to negotiate and enter into treaties with foreign nations. Article I necessary and proper clause: gives Congress the power to enact laws that are reasonably appropriate to carry out the President's treaty-making power (and other express powers).

Question 58

U.S. armed forces seized a noncitizen engaged in combat against them in a foreign country. The noncitizen was taken to a territory outside the United States but over which the United States had sovereign control. Shortly thereafter, Congress passed a law denying federal courts jurisdiction over habeas corpus petitions filed by individuals who were designated as enemy combatants, but the law did not suspend the privilege of filing habeas corpus petitions. Subsequently, the noncitizen, who was designated an enemy combatant by the President, filed a habeas corpus petition in a federal court. May the court hear this petition? A) No, because Congress denied the federal courts jurisdiction over this type of petition. B) No, because Congress has plenary power over noncitizens. C) Yes, because Congress lacks the power to limit the jurisdiction of the federal judiciary. D) Yes, because the law violates the suspension clause.

Answer 58

D) Yes, because the law violates the suspension clause. Article I suspension clause: persons in federal custody can challenge their detention by filing a writ of habeas corpus in federal courts unless Congress has suspended the writ. This clause applies to noncitizens classified and detained as enemy combatants in territories over which the United States has sovereign control.

Question 59

An appropriations act passed by Congress requires the expenditure of funds to repair a federal military facility slated for closure. Finding the repair of the facility to be unnecessary, the President vetoed the legislation. Congress then overrode the President's veto by a two-thirds vote in the House and the Senate and passed the legislation. On the order of the President, the Secretary of Defense refused to release the funds appropriated for the facility's repair. Is the President required to expend the funds to repair the facility? A) No, because the President determined that the expenditure of funds was unnecessary. B) No, because the President's decision is a valid exercise of his powers as commander in chief. C) Yes, because the passage of an appropriation over a veto makes the spending mandatory. D) Yes, because the President is obligated to spend funds in accordance with congressional directions.

Answer 59

D) Yes, because the President is obligated to spend funds in accordance with congressional directions. The taxing and spending clause grants Congress exclusive spending power, which allows it to require that federal funds be spent as directed in duly enacted appropriations statutes. And the President must faithfully execute Congress's directive. Note: Spending of appropriated funds is mandatory if the passed bill explicitly requires that the funds be spent. This rule applies to all appropriations that pass into law—not just those that passed after a veto.

Question 60

A federal marshal was escorting a prisoner from federal court back to prison when the prisoner attempted to escape. The marshal, in the process of foiling the prisoner's escape, accidentally shot and killed an innocent bystander. The local district attorney has charged the marshal with involuntary manslaughter under state law. Of the following, which would provide the marshal with the best constitutional defense to this charge? A) The doctrine of sovereign immunity. B) The due process clause of the Fifth Amendment. C) The Eleventh Amendment. D) The equal protection clause of the Fourteenth Amendment.

Answer 60

A) The doctrine of sovereign immunity. The doctrine of sovereign immunity shields the federal government from suits by private parties (or states or foreign governments) in federal court without Congressional consent. This immunity extends to suits against federal officers for actions taken in their official capacities.

Question 61

Congress has proposed repealing a federal statute that exempts the payment of federal income tax on the interest earned by the holders of state bonds. State bonds are the primary method by which many states finance public works projects, such as highways and educational facilities. Repealing the exemption would increase the interest that a state must pay to bondholders, which would have a substantial adverse economic impact on the cost of these projects to the state. The holders of private bonds are not eligible to receive the tax exemption. Would the repeal of the tax exemption be constitutional? A) No, because taxing this income would have a substantial adverse economic effect on the states. B) No, because the Tenth Amendment prohibits federal taxation of a state. C) Yes, because Congress has unlimited power to tax and spend for the general welfare. D) Yes, because the tax would not be imposed directly on the states.

Answer 61

D) Yes, because the tax would not be imposed directly on the states. The federal government can tax state government affiliates—i.e., persons doing business with state governments—so long as the taxes do not discriminate against states or their affiliates.

Question 62

A long-standing federal law provides for the payment of a $250,000 death benefit to the immediate family of a firefighter who dies as a direct result of fighting a fire. The law provides that this payment must supplement any other benefit paid to the firefighter's family from any other source. The federal law does not address the relationship between it and any conflicting state law. A state legislature recently enacted a state law that requires the commission overseeing the state's workers'-compensation program to reduce a recipient's worker's compensation by any federal benefits that he or she receives. Acting pursuant to the recently enacted state law, the commission reduced the amount of worker's compensation that a firefighter's widow was entitled to by the amount of the federal death benefit that she had received. The widow has challenged the constitutionality of the state law. How should the court rule on the challenge? A) Deny the challenge, because the commission's action did not affect the federal death benefit received by the firefighter's widow. B) Deny the challenge, because the federal law does not state that it expressly preempts conflicting state laws. C) Uphold the challenge, because the state law was enacted after the long-standing federal law. D) Uphold the challenge, because the state law violates the supremacy clause of Article VI.

Answer 62

D) Uphold the challenge, because the state law violates the supremacy clause of Article VI. A federal law will impliedly preempt a conflicting state law that makes it impossible or nearly impossible to comply with both laws (i.e., direct conflict) OR frustrates the accomplishment of the federal law's purpose (i.e., indirect conflict). Note: In determining preemption, the timing of the laws is irrelevant. Therefore, it makes no difference whether the state law was enacted before or after the federal law.

Question 63

The dean of the architecture department at a state university informed a graduate-level architecture student that if she did not improve her academic performance, she would not be allowed to remain a student at the university. When the student's grades did not improve the following semester, a faculty committee recommended that she be dismissed after careful review of her academic record. The student was not allowed to present evidence to the committee or attend the committee meeting. The dean accepted the committee's recommendation and subsequently dismissed the student. The student filed a constitutional challenge to her dismissal in federal court, contending that she had been deprived of her procedural due process rights. Is the court likely to rule in favor of the student? A) No, because she was not entitled to a hearing since she was dismissed for academic reasons. B) No, because the Tenth Amendment reserves to the states plenary authority to regulate public education. C) Yes, because she was denied the right to present evidence to the committee and to attend the committee meeting. D) Yes, because the dean deprived the student of her education when he dismissed her.

Answer 63

A) No, because she was not entitled to a hearing since she was dismissed for academic reasons. Due process requires public colleges and universities to provide notice and a meaningful opportunity to be heard before dismissing a student for ****disciplinary reasons***. However, due process does not require a public college or university to provide a meaningful opportunity to be heard when a student is dismissed for ***academic reasons****.

Question 64

A recent study revealed that children who attended public prekindergarten were twice as likely to graduate high school than children who did not. In an effort to improve graduation rates, a state legislature passed a statute requiring every child age three through five in the state to attend a state-funded prekindergarten program. The failure of a parent or guardian to enroll their child in a qualifying state program would result in a fine of no more than $1,000. The law will take effect at the beginning of the next school year. Parents who had enrolled their children in private prekindergarten programs located within the state for the upcoming school year have filed suit to challenge the constitutionality of the statute. Is the statute likely to be upheld? A) Yes, because it is rationally related to a legitimate state interest. B) Yes, because it is necessary to achieve a compelling state interest. C) No, because it is not rationally related to a legitimate state interest. D) No, because it is not necessary to achieve a compelling state interest.

Answer 64

D) No, because it is not necessary to achieve a compelling state interest. Laws that substantially impair a fundamental right—e.g., a right to privacy, which encompasses parents' right to control their child's upbringing and education—can be challenged on substantive due process grounds. Such laws are reviewed under strict scrutiny and rarely survive.

Question 65

A federal statute was enacted that banned all individuals born on a specific sovereign island nation from entering the United States after it was established that only such individuals were carriers of a highly contagious and deadly virus. A U.S. citizen who had been born on the island nation has challenged the constitutionality of this statute in federal court after being denied reentry to the United States. Which of the following constitutional clauses provides the best ground for this challenge? A) The comity clause of Article IV. B) The due process clause of the Fifth Amendment. C) The naturalization clause of Article I, Section 8. D) The privileges or immunities clause of the Fourteenth Amendment.

Answer 65

B) The due process clause of the Fifth Amendment. Equal protection principles apply to the federal government through the Fifth Amendment due process clause. Under this clause, federal laws that intentionally discriminate against a suspect class (e.g., national origin) are almost always invalidated under strict scrutiny. Note: The Article I, Section 8 naturalization clause grants Congress the authority to enact laws that regulate naturalization—i.e., the process through which any noncitizen may obtain U.S. citizenship. But Congress must comply with other constitutional provisions when exercising this authority, including the Fifth Amendment due process clause.

Question 66

Public schools within a state are managed by local school boards, which have the authority to impose taxes on real-property owners within a school district. The members of each local school board are elected. To promote voter responsibility in school-board elections, a state law provides that the eligible voters for school-board elections are the property owners in the county whose property-tax revenue supports public school districts. Of the following, which is the most likely constitutional basis on which this method of electing the local school board can be challenged? A) The due process clause of the Fourteenth Amendment. B) The elections clause of Article I, Section 4. C) The equal protection clause of the Fourteenth Amendment. D) The takings clause of the Fifth Amendment.

Answer 66

C) The equal protection clause of the Fourteenth Amendment. Fundamental rights (First VIP) (strict scrutiny) First Amendment freedoms Voting Interstate travel Privacy + Marriage / family + Parental rights + Sexual acts + Contraceptives Under the equal protection clause, a discriminatory law that substantially impacts a fundamental right (e.g., voting) of a class of persons is unconstitutional unless the government shows that the law is the least restrictive means to achieve a compelling government interest. Note: The elections clause in Article I, Section 4 grants Congress the power to regulate ***congressional elections***—not state or local elections. Therefore, this is not a basis to challenge the state law's constitutionality.

Question 67

A state law created legislative districts for both houses of the state's legislature based on the total population of the state. The variation in people assigned to a district between the largest and smallest districts for the state senate was 8%. A voter in the district with the largest population filed suit contending that the legislative districts violate the equal protection clause of the Fourteenth Amendment to the United States Constitution. Is the voter's challenge likely to succeed? A) No, because a state senate district is not subject to the "one person, one vote" principle. B) No, because the districts do not violate the equal protection clause. C) Yes, because even minor deviations in the populations of state legislative districts are not permitted by the equal protection clause. D) Yes, because the districts do not comport with the "one person, one vote" principle.

Answer 67

B) No, because the districts do not violate the equal protection clause. The Fourteenth Amendment equal protection clause "one person, one vote" principle requires the populations in state legislative districts to be ***approximately equal***. Approximately equal: A deviation of 10% or less between the populations of legislative districts is minor and does not violate the equal protection clause absent evidence of discrimination.

Question 68

In the spring, a farmer leased land from his neighbor and planted barley on that land. The barley became infected with a parasite, which had little effect on the farmer's crop but would have a devastating effect on wheat grown by other farmers throughout the state if it spread. Since there was no known pesticide for the parasite, a state agricultural agent ordered the destruction of the barley in order to prevent the spread of the parasite to nearby wheat. The agent was acting pursuant to a statute enacted the prior year by the state's legislature, which had been concerned about the presence of the parasite in a nearby state. The farmer demanded compensation from the state for the destruction of his crop. Which of the following provides the best support for the state's denial of the farmer's demand for compensation? A) The destruction was necessitated by a public peril. B) The farmer did not own the land. C) The state itself did not benefit from the destruction of the barley. D) The statute was enacted prior to the time that the farmer leased the land and planted his crop.

Answer 68

A) The destruction was necessitated by a public peril. When the government commits a taking by destroying private property, the government generally must provide the owner just compensation at the time of the taking. BUT just compensation is not required when the government destroys private property in response to a public peril. Note: Whether the state benefited from the taking has no bearing on whether it must provide just compensation. Therefore, this is not a basis for the state to deny the farmer's demand for compensation for his destroyed crop.

Question 69

A state passed a law imposing a moratorium on the construction of any structure within 100 feet of the shoreline of an inland lake. A landowner owned a piece of empty lakefront property that extended 200 feet beyond the shoreline. The landowner sued the state, alleging that the law constituted a taking. Which of the following, if raised at trial, would NOT factor into the court's determination of whether a taking has occurred? A) The degree to which the law benefits the public. B) The owner's ability to sell the property to a third party. C) The owner's reasonable investment-backed expectations. D) Whether the law substantially advances a legitimate government interest.

Answer 69

D) Whether the law substantially advances a legitimate government interest. A regulatory taking occurs when the government substantially restricts the use of private property based on the totality of the circumstances—i.e., the government action's: (1) character or nature, (2) economic impact on the property, and (3) interference with the owner's reasonable investment-backed expectations. A court may not consider whether a challenged law or regulation substantially advances a legitimate state interest in determining if a taking has occurred. Therefore, this will not be a factor in the court's determination of whether a taking has occurred here.

Question 70

A municipality enacted an ordinance prohibiting any person from uttering any "accusation of moral turpitude in public." Violation of the ordinance results in a monetary fine. A woman who lived in the municipality stood on a street holding a sign that falsely accused another resident of adultery. The woman was fined by the municipality for her actions. The woman has challenged the constitutionality of the ordinance, arguing that it violates the First Amendment on its face as an overbroad restriction on speech. Which of the following would be the municipality's WEAKEST defense? A) The municipality had the authority to enact the ordinance through its police power. B) The woman cannot challenge the ordinance as applied to her. C) The woman cannot challenge the ordinance on its face. D) The woman cannot meet her burden of establishing that the ordinance is overbroad.

Answer 70

C) The woman cannot challenge the ordinance on its face. Persons can challenge a statute on its face when that statute could be unconstitutionally applied to others not before the court. That challenge will succeed if the statute reaches a substantial amount of constitutionally protected conduct (i.e., overbroad).

Question 71

A state legislature received complaints from traffic accident victims who, in the days immediately following their accidents, had received unwelcome and occasionally misleading telephone calls on behalf of medical care providers. The callers warned of the risks of not obtaining prompt medical evaluation to detect injuries resulting from accidents and offered free examinations to determine whether the victims had suffered any compensable injuries. In response to these complaints, the legislature enacted a law prohibiting medical care providers from soliciting any accident victim by telephone within 30 days of his or her accident. Which of the following arguments would be most helpful to the state in defending the constitutionality of the law? (A) Because the commercial speech that is the subject of the law includes some speech that is misleading, the First Amendment does not limit the state’s power to regulate that speech. (B) Because the law regulates only commercial speech, the state need only demonstrate that the restriction is rationally related to achieving the state’s legitimate interests in protecting the privacy of accident victims and in regulating the medical profession. (C) The state has substantial interests in protecting the privacy of accident victims and in regulating the practice of medical care providers, and the law is narrowly tailored to achieve the state’s objectives. (D) The law is a reasonable time, place, and manner regulation.

Answer 71

(C) The state has substantial interests in protecting the privacy of accident victims and in regulating the practice of medical care providers, and the law is narrowly tailored to achieve the state’s objectives. The law regulates only commercial speech, and the First Amendment invalidates any law regulating such speech unless the law is narrowly tailored to serve a substantial government interest. The U.S. Supreme Court has held that a law barring the solicitation of accident victims within a limited time period following an accident was narrowly tailored to serve the state’s substantial interest in protecting the privacy of the victims. Note: Although the law regulates only commercial speech and the First Amendment does not protect commercial speech that is misleading, the facts state that the phone calls only “occasionally” were misleading. The First Amendment protects truthful commercial speech subject to the law.

Question 72

A state legislature conducted an investigation into a series of fatal accidents in the state involving commercial trucks with exteriors made of polished aluminum. The investigation revealed that the sun’s glare reflecting off these trucks blinded the drivers of other vehicles. In response, the state’s legislature enacted a law prohibiting commercial trucks with polished aluminum exteriors from traveling on the state’s highways. Litigation over the state law resulted in a final decision by the United States Supreme Court that the law impermissibly burdened interstate commerce and therefore was unconstitutional. Congress later enacted a statute permitting any state to enact a law regulating the degree of light reflectiveness of the exteriors of commercial trucks using the state’s highways. Is this federal statute constitutional? (A) No, because the U.S. Supreme Court has already determined that state laws of this type impermissibly burden interstate (B) No, because Article III vests the judicial power in the federal courts, the essence of judicial power is the ability to render a final judgment, and this statute overrules a final judgment of the U.S. Supreme Court.commerce. (C) Yes, because Article I, Section 8 grants Congress authority to enact statutes authorizing states to impose burdens on interstate commerce that would otherwise be prohibited. (D) Yes, because Article I, Section 8 grants Congress authority to enact statutes for the general welfare, and Congress could reasonably believe that state laws regulating the light reflectiveness of the exteriors of commercial trucks promote the general welfare.

Answer 72

(C) Yes, because Article I, Section 8 grants Congress authority to enact statutes authorizing states to impose burdens on interstate commerce that would otherwise be prohibited. The usual rule prohibiting Congress from enacting a statute overruling a constitutional decision of the U.S. Supreme Court does not apply to enactments based on Congress’s commerce power because the Constitution gives Congress plenary authority to regulate conduct that is within the commerce power. The statute permitting any state to regulate the degree of light reflectiveness of the exteriors of commercial trucks using the state’s highways is a valid enactment of the commerce power because commercial trucks are instrumentalities of interstate commerce Note: The statute permitting any state to regulate the degree of light reflectiveness of the exteriors of commercial trucks using the state’s highways does not overrule the U.S. Supreme Court’s judgment. Thus, for example, if the Court had awarded damages or attorney’s fees to the prevailing party, that award would remain in effect after Congress enacted the statute. The statute simply changes the law for future cases, which is an action that is within the legislative power of Congress and that does not encroach on the Court’s judicial power to decide cases within its jurisdiction.

Question 73

Residents of a city complained that brightly colored signs detracted from the character of the city’s historic district and distracted motorists trying to navigate its narrow streets. In response, the city council enacted an ordinance requiring any “sign or visual display” visible on the streets of the historic district to be black and white and to be no more than four feet long or wide. A political party wanted to hang a six-foot-long red, white, and blue political banner in front of a building in the historic district. The party filed suit to challenge the constitutionality of the sign ordinance as applied to the display of its banner. Which of the following would be the most useful argument for themost useful argument for the political party? (A) The ordinance is not the least restrictive means of promoting a compelling government interest (B) The ordinance is not narrowly tailored to further an important government interest, nor does it leave open alternative channels of communication. (C) The ordinance imposes a prior restraint on political expression. (D) The ordinance effectively favors some categories of speech over others.

Answer 73

(B) The ordinance is not narrowly tailored to further an important government interest, nor does it leave open alternative channels of communication. Because the ordinance is a content-neutral restriction of expression, it must satisfy intermediate scrutiny, which requires the city to prove that the ordinance is narrowly tailored to further an important government interest and that it leaves open alternative channels of communication.

Question 74

In one state, certain advanced diagnostic medical technologies were located only in hospitals, where they provided a major source of revenue. In many other states, such technologies were also available at “diagnostic centers” that were not affiliated with hospitals. A group of physicians announced its plan to immediately open in the state a diagnostic center that would not be affiliated with a hospital. The state hospital association argued to the state legislature that only hospitals could reliably handle advanced diagnostic medical technologies. The legislature then enacted a law prohibiting the operation in the state of diagnostic centers that were not affiliated with hospitals. The group of physicians filed suit challenging the constitutionality of the state law. What action should the court take? (A) Uphold the law, because the provision of medical services is traditionally a matter of legitimate local concern that states have unreviewable authority to regulate. (B) Uphold the law, because the legislature could rationally believe that diagnostic centers not affiliated with hospitals would be less reliable than hospitals. (C) Invalidate the law, because it imposes an undue burden on access to medical services in the state. (D) Dismiss the suit without reaching the merits, because the suit is not ripe.

Answer 74

(B) Uphold the law, because the legislature could rationally believe that diagnostic centers not affiliated with hospitals would be less reliable than hospitals. The law does not trigger heightened judicial scrutiny, because it neither classifies regulatory subjects on a constitutionally suspect basis nor unduly burdens the exercise of a fundamental right. The appropriate constitutional standard of review therefore is whether the law is rationally related to a legitimate government interest. The apparent legislative judgment that diagnostic centers not affiliated with hospitals would be less reliable than hospitals is rational, regardless of whether it is in fact correct. Note: The suit is ripe because the facts state that the physicians’ group has immediate plans to open a diagnostic center in the state.

Question 75

In order to combat terrorism, Congress enacted a statute authorizing the President to construct surveillance facilities on privately owned property if the President determines that the construction of such facilities is “necessary to safeguard the security of the United States.” The statute provides no compensation for the owner of the land on which such facilities are constructed and provides that the surveillance facilities are to be owned and operated by the United States government. Pursuant to this statute, the President has determined that the construction of a surveillance facility on a very small, unused portion of an owner’s large tract of land is necessary to safeguard the security of the United States. The construction and operation of the facility will not affect any of the uses that the owner is currently making of the entire tract of land. The owner has filed suit to challenge the constitutionality of the construction of a surveillance facility on the portion of land at issue without compensation. How should the court rule? (A) The construction of the facility would be a taking of the owner’s property for which the owner must be compensated. (B) The construction of the facility would single out the owner for adverse treatment in violation of the equal protection component of the Fifth Amendment. C) The construction and operation of the facility would not interfere with any use the owner is currently making of the entire tract of land, and therefore the owner would not be entitled to any compensation. (D) The construction of the facility would be valid without any compensation, because it has been determined to be necessary to protect a compelling government interest in national security.

Answer 75

(A) The construction of the facility would be a taking of the owner’s property for which the owner must be compensated. Any permanent physical occupation by the government of private property is a taking for which just compensation to the property owner is required. It is irrelevant that in this case the portion of the owner’s tract of land to be occupied by the government is unused and very small. Nor is it relevant that the construction and operation of the facility will not affect any of the uses that the owner is currently making of the entire tract of land. The permanent physical occupation by the government of the owner’s land would be sufficient by itself to constitute a taking. Note: The takings clause does not exempt takings that are necessary to protect a compelling government interest from the obligation to provide just compensation to the property owner.

Question 76

A coastal area was struggling to combat damaging coastal erosion, and over the years had enacted steadily stricter zoning codes on the shorelines to prevent developments that would add to the problem. A developer sought and obtained preliminary approval from the local planning commission for residential development of a tract of coastal land. The developer hoped to develop rental homes on the tract and to use the profits to purchase more coastal land to the south of his tract, extending his rental properties down the coast before new zoning laws could prohibit the development. After some but not all of the developer’s tract had been developed, the zoning ordinances governing the land to the south of the tract were amended to prohibit residential development. The developer, fearing that the zoning codes regulating his tract would soon be amended as well, immediately filed an action in federal court seeking a declaratory judgment that such a change would constitute a taking, entitling him to just compensation. Is the court likely to hear this case? A) No, because the developer’s action is not ripe for litigation. B) No, because the proper relief in this action would be an injunction, and the developer has only requested declaratory relief. C) Yes, because the developer has already lost the opportunity to develop the land south of his tract, and there is a reasonable expectation that the wrong will be repeated. D) Yes, because the threat of future injury is sufficient to establish standing in this case due to the trend of changes in zoning regulations in the area.

Answer 76

A) No, because the developer’s action is not ripe for litigation. A federal court will not consider a claim before it has fully developed; to do so would be premature, and any potential injury would be speculative. For a case to be “ripe” for litigation, the plaintiff must have experienced a real injury or imminent threat thereof. Here, there is no imminent threat of a taking, and the developer has suffered no cognizable injury. Note: developer suffered no actual injury from the change in the zoning regulations south of his own tract of land. His interest in those properties was merely speculative.

Question 77

A state senator was on a committee reviewing the compliance of all state government buildings with federal wheelchair accessibility policies. The senator headed the committee, and as such, delivered multiple speeches during committee meetings about the importance of having not only all government buildings, but also private buildings, comply with the federal wheelchair guidelines regarding accessibility. One day as he was leaving his office, a reporter asked the senator about his views on wheelchair accessibility. The senator repeated verbatim a speech he gave during one of his committee meetings, including a comment that, unless protected by immunity or privilege, would expose him to liability for defamation of another senator. Can the senator be subject to civil liability for the statements he made to the reporter? A) Yes, because the Speech or Debate Clause does not apply to state legislators. B) Yes, because his statements were outside the sphere of legitimate legislative activity. C) No, because the Speech or Debate Clause protects him from civil liability. No, because the senator is immune from liability under the principles of federalism.

Answer 77

B) Yes, because his statements were outside the sphere of legitimate legislative activity.

Question 78

A state raised its minimum wage to $15 per hour. A federal post office in the state pays some of its employees the federal minimum wage of $7.25 an hour. Can the post office be prosecuted for failing to adhere to the new state minimum wage? A) No, because the state minimum wage is preempted by federal law. B) No, because the state cannot regulate the federal government absent congressional consent. C) Yes, because the state minimum wage is not a tax on the federal government. D) Yes, because the post office at which the federal employees are employed is located in the state.

Answer 78

B) No, because the state cannot regulate the federal government absent congressional consent. The states have no power to regulate the federal government unless Congress permits the state regulation or unless the state regulation is not inconsistent with existing federal policy. Here, the state's minimum wage statute penalizes the behavior of an agency of the federal government, which is immune from that regulation under the concept of sovereign immunity.

Question 79

A large utility company was located inside State A. The company burned coal to produce electricity, some of which was used within the state, but the majority of which was provided to neighboring states. In order to fund clean-up efforts made necessary as a result of burning coal, State A taxed the electricity the utility provided to its customers based on the amount used. Accordingly, even though some tax revenue came from electricity provided to State A residents, most of the tax revenue came from out-of-state residents. Residents of neighboring State B challenged State A’s tax as unconstitutional, claiming that the tax disproportionately affected nonresident individuals. Assuming that Congress has not directly acted in the area, is the court most likely to find the tax constitutional or unconstitutional? A) Constitutional, as a proper ad valorem tax. B) Constitutional, as a proper state tax that comports with the Commerce Clause. C) Unconstitutional, as a violation of the Privileges and Immunities Clause of Article IV. D) Unconstitutional, as a violation of the Equal Protection Clause of the Fourteenth Amendment.

Answer 79

B) Constitutional, as a proper state tax that comports with the Commerce Clause States may tax interstate commerce if Congress has not already acted in the particular area and if the tax does not discriminate against or unduly burden interstate commerce. four-part test to determine whether a state tax comports with the Commerce Clause: (1) there must be a substantial nexus between the activity taxed and the taxing state; (2) the tax must be fairly apportioned according to a rational formula (3) the tax may not provide a direct commercial advantage to local businesses over interstate competitors; and (4) there must be a fair relationship between the tax and the service provided (here, the tax is calculated in direct proportion to usage and is used for clean-up efforts related to production of electricity). Note: ad valorem tax is based on the value of property located in the state.

Question 80

A recently enacted state statute permits a taxpayer to pay state taxes with electronic currency, known as crypto currency. Of the following, which provides the strongest basis on which to challenge the constitutionality of the statute? A) The Supremacy Clause of Article VI of the U.S. Constitution B) The Contract Clause of Article I, Section 10 of the U.S. Constitution C) The Dormant Commerce Clause of Article I, Section 8 of the U.S. Constitution D) The Tenth Amendment to the U.S. Constitution

Answer 80

A) The Supremacy Clause of Article VI of the U.S. Constitution Under Article I, Section 10 of the U.S. Constitution, a state is prohibited from coining money or making anything but gold and silver coin a tender in payment of debts. Consequently, the state statute is authorizing the payment of a debt in a form that the U.S. Constitution prohibits it from doing. Note: The Tenth Amendment provides that all powers not assigned by the Constitution to the federal government are reserved to the states, or to the people. However, this does not include powers delegated to the federal government by the Constitution.

Question 81

A leader of an extremist cult was charged with murdering a fellow cult member as part of a human sacrifice at the building he owned and used as the cult’s compound. The leader was detained in jail before raising the money necessary to pay his bond. While in jail, the leader received notice that although the investigation of the compound had been completed, the government planned to seize the property on a given date. When he was released on bond after the date indicated in the notice, the leader returned to the compound. When he arrived, he found that the compound had been abandoned and boarded up. A notice on the boarded-up door indicated that even though no evidence remained on the property, the compound had been seized by the government pending the resolution of his trial. Have the leader’s due process rights been violated? A) Yes, because the government seized his property without a hearing. B) Yes, because the government seized his property while he was in jail. C) No, because the leader was provided with notice of the pending seizure. D) No, because the leader was not entitled to a hearing prior to seizure.

Answer 81

A) Yes, because the government seized his property without a hearing. Forfeiture is an involuntary relinquishment of property that the government alleges is connected to criminal activity. Generally, the government is required to provide the owner with notice and a hearing prior to seizure of real property.

Question 82

A federal study found that almost all of the accidents on a particular state’s highways were caused by out-of-state residents. Congress passed a law requiring the payment of tolls at all of the state’s borders. The law also required that any driver with an out-of-state driver’s license pay an additional toll and leave a credit card number for the state to use in the event that the out-of-state driver caused an accident on one of the state’s roads. Several out-of-state motorists have challenged the constitutionality of the law. Which of the following provides the best ground for challenging the constitutionality of the law? A) The Due Process Clause of the Fifth Amendment. B) The Equal Protection Clause of the Fourteenth Amendment. C) The Commerce Clause of Article I, Section 8. D) The Privileges and Immunities Clause of Article IV.

Answer 82

A) The Due Process Clause of the Fifth Amendment. The Due Process Clause contains a substantive component that guarantees certain fundamental rights, including the right to travel among the states. This includes the right to enter one state and leave another and to be treated as a welcome visitor. Because this law impinges on a fundamental right, it is subject to strict scrutiny Note: The Commerce Clause does grant Congress the power to regulate interstate travel and this would be the best defense (not grounds for a challenge)

Question 83

A city, to better the health and well-being of its citizens by providing public access to a large lake lying within its boundaries, enacted an ordinance that required owners of lakefront property in excess of one acre to grant the public year-round access to the lake. Since the property owners were uncompensated, the effect of the ordinance on the average property owner subject to the ordinance was to reduce the value of the owner’s property by five percent. Lakefront property owners adversely affected by the ordinance have sued the city to block enforcement of the ordinance as a violation of the Takings Clause of the Fifth Amendment as incorporated into the Fourteenth Amendment. Is the ordinance constitutional? A) No, because the ordinance is not substantially related to an important governmental interest. B) No, because the ordinance leaves the affected property owners without just compensation. C) Yes, because the ordinance does not result in a permanent total loss of the property’s economic value. D) Yes, because the ordinance does not result in the transfer of any property to the city itself.

Answer 83

B) No, because the ordinance leaves the affected property owners without just compensation. A municipal ordinance that results in the permanent taking of property, including not only a fee simple interest but also other property interests, such as an easement, without just compensation violates the Takings Clause. Note: A government regulation on the use of property that adversely affects a person’s property interest generally does not violate the Takings Clause unless it results in the permanent total loss of the property's economic value without just compensation. Here, however, the ordinance does not merely regulate an owner's use of his property, but instead grants the public a permanent right to use the property as a means of accessing the lake.

Question 84

A state board of transportation ordered a railroad company to sell a parcel of land adjoining its railroad track. The parcel in question had been part of a much larger section of land transferred a number of years before from the state to the railroad company in exchange for the company’s provision of railroad services to the citizens of the state. The state board fixed a reasonable price based on the land’s fair market value to compensate the railroad company for the loss of its land. The railroad refused to sell the land to the designated buyer, a farmer’s cooperative. The private cooperative planned to build a warehouse on the land in order to store its members’ produce for shipment by rail and other means. In an action to compel the railroad to comply with the order of the state board, should the court rule in favor of the state board? A) Yes, because the railroad is regulated by the state board of transportation. B) Yes, because the price set by the board constitutes just compensation. C) No, because the order violates the Fourteenth Amendment’s incorporation of the Fifth Amendment. D)No, because the order originated with a state board rather than a state legislature.

Answer 84

C) No, because the order violates the Fourteenth Amendment’s incorporation of the Fifth Amendment. The Fifth Amendment Takings Clause, which applies to the states through the Fourteenth Amendment, provides that a government may seize private property not only for its own direct use, but also in order to transfer the property to another private party. Such a seizure is permissible if it is rationally related to a conceivable public purpose. Under these facts, the land was intended to be used by a farmer’s cooperative for building a warehouse and storing its produce. It is unlikely that the intended use of the land was rationally related to a conceivable public purpose since the facts do not indicate that the seizure was based on economic redevelopment goals or safety and welfare justifications

Question 85

A local contractor entered into a valid contract with a state to repave a state highway for $3 million. In accord with the terms of the contract, the contractor was paid $500,000 immediately. The remaining amount was to be paid upon completion of the contract. After the contractor had substantially completed the paving project, the governor of the state announced that the state’s budget crisis threatened all state projects and services, and decided to delay payments owed by state. With regard to the paving contract, the state, rather than paying the contractor upon completion of the project, will pay the contractor $500,000 each year for the next five years, plus the prevailing interest on the overdue amount. If the contractor sues the state in an appropriate federal court, what is the state’s best argument? A) Under the Tenth Amendment and federalism, the state has plenary power over all matters pertaining to state road repairs. B) The state’s action does not violate the Dormant Commerce Clause because the state is acting as a market participant. C) The contractor lacks Article III standing. D) The state’s action does not substantially and unreasonably impair the contractor’s contract rights.

Answer 85

D) The state’s action does not substantially and unreasonably impair the contractor’s contract rights. A state may impair the obligations of a contract, including a contract entered into by the state with a private citizen, so long as the impairment is not substantial, or, if the impairment is substantial, so long as it is not unreasonable. In the case of a contract to which the state is a party, the state must show that its important interest cannot be served by a less restrictive alternative and that the impairment it seeks is necessary because of unforeseeable circumstances. Here, the impairment is arguably not substantial because the contractor is receiving the full contract amount plus interest to compensate him for the delay in receiving the money. Assuming that the impairment is substantial, the state’s actions are reasonable in light of the unforeseen budget crisis and arguably there is not a less restrictive alternative. Note: the contractor does have standing—he is alleging that he has suffered a direct injury-in-fact (i.e., a delay in payments that are contractually owed to him) and that his injury stems from the state’s violation of the Contracts Clause.

Question 86

A public university adopted the following policy: In order to be recognized as a student organization with rights to school facilities and funds, an organization must permit any student to be a member regardless of the student’s status or beliefs. One student organization was a local chapter of a national organization that restricted membership in local chapters to members of a particular religious sect and denied membership to homosexual individuals. May the university apply its policy to the student religious group? A) No, because the policy violates the First Amendment Free Exercise Clause. B) No, because the policy violates the First Amendment Freedom of Association Clause. C) Yes, because a public university is free to allocate its funds among student groups in any rational manner it sees fit. D) Yes, because a public university is a limited public forum and the policy is viewpoint neutral.

Answer 86

D) Yes, because a public university is a limited public forum and the policy is viewpoint neutral. A public school, as a limited public forum, may allocate access to school facilities and funds among student groups when the allocation is done in a manner that is viewpoint neutral. In this case, the university’s policy was viewpoint neutral, and thus may be applied to the religious group. Note: a public school may allocate funds among student groups and such allocation must be rational, a public school is not permitted to do so in a manner that is not viewpoint neutral.

Question 87

A city owned and operated a minor-league baseball park. The city sold advertising space on billboards above the park and along the walls of the baseball field. While most of the advertising space was purchased by beer and snack food companies that also sold their goods at the baseball games, a city ordinance allowed for the sale of space to political, charitable, and religious causes. All final decisions on the advertising were solely at the discretion of a particular city official. A modern-day temperance organization wanted to buy space on some of the billboards to warn of the dangers associated with drinking alcohol. The city official wanted the baseball games to remain light-hearted and fun events for the citizens, and also did not want to risk the beer companies pulling their advertisements from the ballpark. Accordingly, he denied the temperance organization’s request for advertising space. The temperance organization sued the city and the official, claiming that the denial of the organization’s request was unconstitutional. Is the temperance organization likely to succeed in its suit? A) Yes, because the city official may not deny an organization’s right to broadcast its message in a public forum on the basis of its content unless the denial is necessary to serve a compelling government interest. B) Yes, because the city official may not refuse to allow an organization the use of a public facility to broadcast a message dealing with an issue of public concern. C) No, because the city official’s denial of advertising space was a reasonable time, place, and manner restriction. D) No, because a valid city ordinance gave the official discretion to grant or deny advertising space.

Answer 87

A) Yes, because the city official may not deny an organization’s right to broadcast its message in a public forum on the basis of its content unless the denial is necessary to serve a compelling government interest. Because the city opened the baseball park to advertisers of all kinds, the city-owned baseball park is a public forum. A content-based regulation of speech in a public forum is subject to strict scrutiny. Thus, the regulation must be necessary to achieve a compelling government interest, and narrowly tailored to meet that interest. Preserving the light-hearted nature of a baseball game and preventing the possible loss of other advertising revenue is likely not a compelling interest.

Question 88

A state statute imposes a special tax on the receipts of publishers from the sale of magazines within the state. The statute exempts religious, professional, and trade magazines from this tax. The publisher of a general-interest magazine filed suit in federal court contending that the selective application of this tax was unconstitutional. Is the court likely to hold in favor of the plaintiff? A) Yes, because publishers enjoy greater First Amendment rights than the general public. B) Yes, because the selective application of the tax violates the First Amendment rights of the plaintiff. C) No, because unlike the federal government, a state is not confined to the exercise of specifically enumerated powers. D) No, because the selective application of the tax is rationally related to a legitimate purpose.

Answer 88

B) Yes, because the selective application of the tax violates the First Amendment rights of the plaintiff. The selective application of the tax constitutes a content-based restriction on the plaintiff’s speech. As such, it is subject to strict scrutiny. Consequently, the state is unlikely to be able to establish that it has a compelling governmental interest that the selective tax system is necessary to achieve, and that this system is narrowly tailored to meet that interest

Question 89

A state university’s discrimination policy includes a provision that no on-campus organization may discriminate against any student on the basis of race or gender by refusing to admit that student to the organization. A group of students filed paperwork with the student activities office to be approved as an on-campus organization for students of a certain religion. The organization was granted the right to organize on-campus functions for a year with the approval of the university, which audits each on-campus organization’s admission procedures every six months. When the organization attempts to be recertified the following year, however, its request is denied, despite the results of a concurrent, school-wide audit determining that no discrimination of any sort had occurred within the organization over the past year. The university’s reasoning is that the entire organization was comprised only of students of one race at the time of the organization’s recertification application and therefore violated the university’s discrimination policy. Would the university’s denial of the recertification be proper? A) Yes, because the organization is clearly violating the university’s discrimination policy. B) Yes, because the university can deny all applications. C) No, because there is no discrimination on the part of the organization. D) No, because the state cannot restrict the organization’s freedom of association.

Answer 89

C) No, because there is no discrimination on the part of the organization. Freedom of association generally protects the right to form or participate in any group, gathering, club, or organization. However, an infringement upon this right may be justified by a compelling state interest, such as preventing discrimination. Here, however, there appears to be no discrimination in the organization or running of the organization as indicated by the university’s prior approval and results of the six-month and concurrent audits, and the membership of members of only one race appears to be incidental. Note: the state can restrict an organization’s freedom of association if there is a compelling state interest, such as the prevention of discrimination.

Question 90

A state required its political parties to allow every registered voter in the state to vote in party primaries. A newly-formed state party wanted to hold a primary to pick its presidential electors, but the national party with which the state party was affiliated required that electors be chosen only by party members. A neighboring state prohibited independents from voting in party primaries. A long-established third party hoped to finally secure the governor’s mansion, which it felt hinged on the ability to attract a large percentage of the independent voters. Both the newly formed state party and the established third party challenged their respective states’ primary regulations in federal court as unconstitutional. What will be the outcome of these lawsuits? A) Both the newly-formed state party and the established third party will prevail. B) The newly-formed party will prevail, but the established third party will lose. C) The established third party will prevail, but the newly-formed party will lose. D) Both the newly-formed party and the established third party will lose.

Answer 90

A) Both the newly-formed state party and the established third party will prevail. A state cannot require a local party to participate in an open primary (i.e., a primary in which any voter in the state may vote in a political party's primary) to choose presidential electors where the national party has required that electors must be chosen only by party members. In addition, a state may not prohibit a political party from allowing independents to vote in its primary.

Question 91

Concerned with the proliferation of unwanted commercial emails, a state legislature enacted a law that entitles an in-state recipient of an unsolicited commercial email ("spam") to at least $500 in damages from the email's sender if that email uses false or misleading information in its subject line. In-state recipients of spam sent by a corporation incorporated and operating in a neighboring state filed a class action lawsuit against the corporation for violation of the state law. The corporation has defended the action by contending that the state law violates the dormant commerce clause. Which of the following would be the LEAST effective argument to defend the constitutionality of the state law? A) The corporation is not protected by the dormant commerce clause. B) The law does not discriminate against out-of-state commerce. C) The law does not place an undue burden on interstate commerce. D) The law does not regulate conduct that occurs wholly beyond the state's borders.

Answer 91

A) The corporation is not protected by the dormant commerce clause. Here, an effective argument can be made that the state law does not violate the dormant commerce clause—and is therefore constitutional—because: B) the law penalizes both in-state and out-of-state senders of false or misleading spam (no discrimination) C) the law's burden on violators (a penalty of at least $500) does not clearly exceed the local benefits of reducing false and misleading spam (no undue burden) and D) the law only regulates emails sent to in-state recipients (no extraterritorial regulation)

Question 92

To promote voter engagement in city council elections, a state legislature enacted a state statute providing that only residents of an incorporated city may vote in city council elections. An owner of a small business located in an incorporated city cannot vote in city council elections because the owner does not reside within the city limits. The owner asserts that he has a vested interest in the choice of city council members because he is subject to licensing fees required by city ordinances in order to do business in the city. The owner has brought an action challenging the constitutionality of the residency requirement. Is the residency requirement constitutional? A) No, because it discriminates against a person who is directly affected by decisions rendered by the city council. B) No, because this restriction is not the least restrictive means to achieve a compelling interest. C) Yes, because it is rationally related to a legitimate state purpose. D) Yes, because voting in a local election is not a fundamental right.

Answer 92

C) Yes, because it is rationally related to a legitimate state purpose. State or local laws that substantially impact the fundamental right to vote are usually subject to strict scrutiny. BUT courts will depart from this test and apply rational basis scrutiny when a state or local law limits the right to vote in a governmental unit's election to its residents.

Question 93

A prisoner at a federal prison contracted a staph infection that was resistant to the antibiotics used to treat ordinary staph infections. The warden refused to provide the prison doctor with the funds necessary to purchase the appropriate antibiotics for the prisoner's infection. As a result, the prisoner died. The prisoner's wife filed a wrongful death suit against the warden. At trial, the prison doctor was called to testify that the prisoner was not given the appropriate antibiotics. Since the prison doctor primarily provided medical treatment to prisoners, she rarely testified in court. During her testimony, the prison doctor made general statements about the lack of appropriate medical care in prisons and the need for improvement for the health and safety of the prisoners. After the trial, the prison doctor was fired by the warden for the statements she made during the trial about the lack of appropriate medical care in prisons. The prison doctor subsequently sued the warden in his official capacity, alleging that the warden violated her First Amendment rights by firing her in retaliation for her testimony. Did the warden violate the prison doctor's First Amendment rights? A) No, because the prison doctor, as a government employee, is prohibited from publicly commenting on government policies. B) No, because the prison doctor's statements were made within the scope of her official duties. C) Yes, because government employees are entitled to the same free-speech protections as other citizens. D) Yes, because the prison doctor was speaking as a citizen on a matter of public concern.

Answer 93

D) Yes, because the prison doctor was speaking as a citizen on a matter of public concern. When a public employee is speaking pursuant to official duties, the government has great latitude to regulate that speech. But when the employee is speaking as a private citizen, the government can restrict that speech only if its interest in efficient government function outweighs the employee's right to free speech. Note: Government employees are generally entitled to the same free-speech protections as other citizens when government employees are speaking as private citizens on matters of public concern. But when government employees are speaking pursuant to their official duties, the government can regulate that speech and First Amendment protections rarely apply.

Question 94

An environmentalist wanted to expose the amount of pollution being created by a power plant that used coal-burning power generators. To do this, the environmentalist broke into the power plant in order to steal the plant's monthly reports regarding the amount of carbon dioxide it released. The environmentalist successfully stole the reports. He then anonymously sent the stolen reports to the editor of a major environmental magazine, who used the reports to write and publish a feature story about the amount of carbon dioxide pollution caused by the plant. If the plant files suit against the editor for the publication of illegally obtained private information, will the suit likely succeed? A) No, because the editor, as a member of the press, has an unconditional right to publish information about matters of public concern. B) No, because the editor played no part in unlawfully obtaining the monthly reports. C) Yes, because the editor published private monthly reports not meant for public disclosure. D) Yes, because the monthly reports were illegally obtained by the environmentalist.

Answer 94

B) No, because the editor played no part in unlawfully obtaining the monthly reports. The First Amendment shields the media from liability for publishing truthful information that was unlawfully obtained by a third party if (1) the information involves a matter of public concern and (2) the publisher neither obtained it unlawfully nor knows who did.

Question 95

A state law authorizes the state department of education to conduct an audit and to assign ratings to all public schools in the state based on graduation rates, test scores, and teacher attrition. The law also prohibits students from transferring to another school until at least the following school year in order to maintain the accuracy of statistics related to each school. The only exception allows the transfer of students whose families relocate to communities in other school districts, but requires that even students who relocate to other communities must continue to attend a public school in the new district. Three students in a single family relocated to another public school district; the public schools in that district were known to be struggling with high dropout rates and low test scores. The parents of these students applied to a local parochial school, and their children were accepted by the school, but the school was forced to deny the children admission based on the state law. The school then filed suit in federal court and asserted that the students have a right to attend the parochial school. Neither the students nor their parents were joined as plaintiffs in the suit. How should the court proceed? A) Hear the merits of the case and rule in favor of the state. B) Hear the merits of the case and rule in favor of the school. C) Dismiss the case, because the school does not have standing to sue. D) Dismiss the case, because only the students would have standing to sue.

Answer 95

B) Hear the merits of the case and rule in favor of the school. Under the third-party standing doctrine, an injured plaintiff may assert a third party's rights when (1) the parties share an inextricably close relationship and (2) genuine obstacles prevent the third party from asserting his/her rights. Laws that substantially impair a fundamental right are almost always unconstitutional under strict scrutiny. Here, the state law harmed the parochial school by forcing the school to deny admission to the three students. Additionally, a private school shares a special relationship with its students and their parents, and privacy concerns pose genuine obstacles that prevent those students and their parents from challenging the state law.

Question 96

After violence against a specific religious minority becomes an epidemic in the United States, Congress enacts hate crime legislation pertaining to those of that religious faith and also establishes that no public entity may discriminate against this group unless such discrimination is the least restrictive means to achieve a compelling interest. What is the most likely reason for the invalidity of this law? A) Congress is improperly creating hate crime legislation coupled with civil rights legislation. B) Congress is improperly creating new equal protection rights. C) The law should apply intermediate scrutiny to discrimination by a public entity to a group. D) Congress does not have a sufficiently compelling state interest in enacting the legislation.

Answer 96

B) Congress is improperly creating new equal protection rights. Section 5 of the Fourteenth Amendment gives Congress the power to enforce the rights guaranteed by the amendment (e.g., equal protection). But when using this enforcement power, Congress may only remedy and deter violations of—not expand or limit—Fourteenth Amendment rights.

Question 97

Congress passed a law allowing the Secretary of Transportation to designate speed limits on all interstate highways "at whatever speed prudent in the interests of both safety and efficiency." The Secretary of Transportation felt that each state was in the best position, based on their studies of their own highway systems, to determine the appropriate speed limit within that state, so he collaborated with each state's department of transportation to determine each state's limit. As a result of an increasing number of high-speed car accidents, one state decided to lower its speed limit. A driver was ticketed for driving over the state's newly lowered speed limit. The driver challenged the validity of the statute giving the Secretary of Transportation power to designate the speed limits. Should the statute be found invalid or valid? A) Invalid, because Congress exceeded its authority to delegate this matter to the Secretary of Transportation. B) Invalid, because the legislation did not contain sufficiently intelligible standards by which to guide the Secretary of Transportation. C) Valid, because the legislation was a proper exercise of Congress's power to delegate to the executive branch. D) Valid, because the Secretary of Transportation consulted each state's department of transportation to guide his decision.

Answer 97

C) Valid, because the legislation was a proper exercise of Congress's power to delegate to the executive branch. Congress can delegate incidental legislative powers to federal agencies if it provides an intelligible principle—i.e., a clear statement defining (1) the policy Congress seeks to advance, (2) the agency to carry out that policy, and (3) the scope of that agency's authority. Here, Congress passed a law that gave the Secretary of the U.S. Department of Transportation (an executive agency) the power to designate speed limits on interstate highways. This legislation contained sufficiently intelligible standards to guide the Secretary because it clearly defined

Question 98

A state enacts a statute prohibiting semi-truck drivers from using cellular phones while operating their vehicles. There is no general statute applying the same prohibition to regular drivers in the state. A truck driver in the state sues in federal court after he receives a citation for using his cellular phone while operating his vehicle. He claims he is being unfairly targeted. Which of the following would govern the analysis of the driver's claim? A) Substantive Due Process. B) Privileges and Immunities Clause. C) Dormant Commerce Clause. D) Procedural Due Process.

Answer 98

A) Substantive Due Process. Laws that deprive an individual of an ordinary right—i.e., a right related to social or economic interests—need only satisfy rational basis review to be constitutional. Here, the truck driver sued the state in federal court after he received a citation for violating the state's statute that prohibits semi-truck drivers from using cellular phones while operating their vehicles. This deprived the truck driver of his ability to use his cell phone while driving, which is an ordinary right. Therefore, substantive due process will govern the analysis of the truck driver's claim, and the state statute will be constitutional if it satisfies rational basis review. Note: Procedural due process generally requires that a state provide an individual with notice and a hearing when it attempts to deprive him/her of a protected life, liberty, or property interest. But the truck driver has no such protected interest in using his cell phone while operating his truck, so procedural due process does not apply.

Question 99

During a period of exceptionally high unemployment, a group of students in a major city began protesting the salary of some of the highest paid businessmen in the country. Coincidentally, many of those businessmen reside in the city where the students intend to protest. The students organized peacefully on the sidewalks in front of the homes of the individual businessmen for two hours each morning during the workweek. They held signs, chanted quietly, and left without much fanfare, though they did create a substantial amount of traffic, media interest, and disruption to the daily routines of the businessmen. The students were subsequently arrested under a state statute that bans picketing in front of individual residences. A) Is the state statute prohibiting this speech constitutional as applied to the students' actions? B) No, but only because their demonstration is not inciting any lawless action. No, because the sidewalk constitutes a public forum. C) Yes, but only because the regulation is content-neutral. D) Yes, because they are focusing the protests on particular residences.

Answer 99

D) Yes, because they are focusing the protests on particular residences. In a public forum, the government's time, place, or manner restrictions on speech must (1) be narrowly tailored to serve a substantial government interest and (2) leave open ample alternative channels of communication. The statute is narrowly tailored to serve the state's substantial interest in preserving residents' privacy as it only applies to residences. The statute also leaves open alternative channels of communication because people can still picket elsewhere (e.g., in front of businesses). And since the students focused their protests on particular residences, the statute is constitutional as applied to them.

Question 100

In response to several violent and fatal confrontations, Congress enacted a law prohibiting all public speeches related to gun control inside government offices. Shortly thereafter, a protestor was arrested after displaying a large placard in a government office that said “GUNS ARE NOT THE PROBLEM; GOVERNMENT IS.” At trial, the protestor challenged the law as a violation of his free speech rights. The government replied by stating that the law served the legitimate government interest of preventing violence in government offices. Is the protestor likely to prevail in his challenge? A) No, because the statute was viewpoint-neutral and reasonably related to a legitimate government interest. B) No, because First Amendment restrictions apply only to public forums. C) Yes, because the statute regulated speech that was not content-neutral and was not narrowly tailored to serve a significant government purpose. D) Yes, because government offices are public forums.

Answer 100

A) No, because the statute was viewpoint-neutral and reasonably related to a legitimate government interest. The government may regulate speech-related activities in nonpublic forums as long as the regulation is (i) viewpoint-neutral and (ii) reasonably related to a legitimate governmental interest.

Question 101

The President entered into a treaty on human rights on behalf of the United States. The Senate ratified this treaty, which was not self-executing, but took no further action on the treaty. In accord with the terms of this treaty, an international tribunal determined that a prisoner was entitled to a reconsideration of his conviction for murder by a state court. The President issued an order requiring the state to give effect to the international tribunal’s determination. The state court, adhering to state law, refused to reconsider the prisoner’s conviction. Has the state court violated the Supremacy Clause? A) No, because the treaty was not self-executing. B) No, because a treaty is not entitled to the same treatment as a federal statute. C) Yes, because the conduct of foreign affairs is committed to the President. D) Yes, because the presidential order constituted implementation of the treaty.

Answer 101

A) No, because the treaty was not self-executing. Supremacy Clause: a state is required to follow federal law when it conflicts with state law. A treaty that is not self-executing is not treated as federal law for purposes of the Supremacy Clause, however, unless it has been implemented through legislation The President, acting on his own, cannot implement such a treaty. Consequently, the state court was free to follow state law; its refusal to reconsider the prisoner’s conviction did not violate the Supremacy Clause.

Question 102

n a single growing season, a virulent parasite infected a large number of acres of wheat across a state. In response to the crisis, Congress established a program by which affected wheat farmers could sell their infected acres to the federal government for fair compensation. Many farmers opted into the program, and the federal government obtained thousands of acres of wheat fields. Congress then established a second program by which the acquired land was leased out to corn and soybean farmers, as studies had shown that these crops could replenish soil after it had been used to grow wheat. Due to the low cost of leasing the land, the farmers were able to sell the crops on the local market at a lower price than other farmers for a substantial profit. Corn and soybean farmers who farmed other land in the state bought an action challenging the constitutionality of the program leasing land to soybean and corn farmers. Which of the following provides the strongest constitutional support for the challenged program? A) The Commerce Clause of Article I B) The Federal Property Clause of Article IV C) The General Welfare Clause of Article I D) The Takings Clause of the Fifth Amendment

Answer 102

B) The Federal Property Clause of Article IV Article IV, Section 3 gives Congress the “power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” There is no express limit on Congress’s power to dispose of property owned by the United States. Here, the property power of Article IV enables Congress to lease federal property to whomsoever it wishes Note: for this program to be authorized by congressional authority over interstate commerce, there must be evidence that the program affects conduct that has an aggregate effect on interstate commerce. Here, it is unclear whether there is activity that has an aggregate effect on interstate commerce. Moreover, because the Federal Property Clause requires no such proof, it is a stronger source of authority for this program.

Question 103

State A and State B are separated by State C. After researching the medical uses of a synthetic drug that was originally developed as a “club drug,” State A and State B have legalized the synthetic drug as a medical treatment for post-traumatic stress disorder (PTSD). State C has not legalized any use of the drug and has a statute that criminalizes its possession. There is no federal law regulating this synthetic drug. The drug is much cheaper in State B because most of it is manufactured in that state. A PTSD patient residing in State A decided to save money by visiting State B to fill her prescription for the drug. As she was returning to State A, she was validly arrested in State C for an unrelated traffic offense. When the police found the synthetic drug in a proper inventory search of her car, State C seized the drug and brought a criminal possession charge against her. After the patient learned that the State C possession statute has an exemption for common carriers who contract to transport the drug from State B manufacturers to State A pharmacies, the patient challenged the State C charges and State C’s seizure of her medication solely on the grounds that State C has violated the Equal Protection Clause. Is the patient’s action likely to succeed? A) No, because in State C, the patient has no protected property interest in the synthetic drug. B) No, because the state has a rational basis for differentiating between private persons and common carriers. C) Yes, because the criminal statute unduly burdens the fundamental right to interstate travel. D) Yes, because the state has no compelling purpose for differentiating between private persons and common carriers.

Answer 103

B) No, because the state has a rational basis for differentiating between private persons and common carriers. rational basis review applies and because there is a rational basis to regulate possession by private individuals but not common carriers, the law is likely constitutional. Note: the fundamental right to travel is not implicated by this statute, as it only penalizes possession of the synthetic drug. Additionally, this argument would be better brought under a substantive due process or Comity Clause claim than an equal protection claim

Question 104

Investors brought an action under federal law for fraud in the sale of securities against an investment company. The action was dismissed with prejudice by the federal district court because it was not timely filed. The investors did not appeal this dismissal. Congress then passed legislation permitting the investors to reinstate this action. The investors petitioned the district court for reinstatement of their action. Of the following, which would serve as the best ground for the investment company to challenge the constitutionality of this law? A) Bill of Attainder Clause of Article I, Section 9 of the U.S. Constitution B) Due Process Clause of the Fourteenth Amendment C) Ex Post Facto Clause of Article I, Section 9 of the U.S. Constitution D) Separation of powers doctrine

Answer 104

D) Separation of powers doctrine Once a judicial decision becomes the final word of the federal judiciary with regard to a particular case or controversy, Congress may not declare by retroactive legislation that the law applicable to that particular case was different from what the courts said it was

Question 105

Many state agricultural agencies conduct random discretionary inspections of meat processing facilities in their states. Relying only on its authority under the Commerce Clause, Congress passed a statute forbidding any state agricultural agency from considering whether a meat processing facility is licensed as “organic” when deciding when and where to conduct these inspections. The statute also provided that if a facility believed that the state agricultural agency was not following this statute in good faith, the facility could sue the state agency in federal court for damages. An organic meat processing facility in State A, believing that the State A agricultural agency conducted more random inspections of its facility than of non-organic facilities in the state, brought an action against the agency in federal court for damages. State A moved to dismiss the suit on the ground that it was immune under the Eleventh Amendment. Should the court dismiss the action on these grounds? A) No, because the Eleventh Amendment only provides immunity for a state, not a state agency. B) No, because Congress has unlimited authority to authorize private actions for damages against a state. C) Yes, because a state may only be sued for damages if it consents to the suit. D) Yes, because Congress cannot abrogate state immunity by exercising its Article I powers.

Answer 105

D) Yes, because Congress cannot abrogate state immunity by exercising its Article I powers. Note: The Eleventh Amendment applies to states and state agencies.

Question 106

Concerned with protecting the use of federal funds from the deleterious effects of bribery, Congress enacted a statute criminalizing the acceptance of a bribe by a state or local official where the state or local government received at least $10,000 in federal funds. A county government, in exchange for its agreement to permit the housing of federal prisoners in the county’s jail, received a payment of federal funds for each prisoner. The total amount received by the county government for housing federal prisoners exceeded $100,000 annually. A federal prisoner housed in the county jail agreed to transfer title to a pickup truck to a prison guard in exchange for the guard permitting the prisoner to receive illegal conjugal visits. The prison guard was charged with violating the statute. Is the application of the statute to the guard’s taking title to the prisoner’s truck constitutional? A) No, because the bribe did not directly relate to the federal funds. B) No, because a federal statute that criminalizes noneconomic behavior must have a significant impact on interstate commerce. C) Yes, because the statute was a valid congressional exercise, pursuant to the Necessary and Proper Clause, of ensuring that its power to appropriate money for the general welfare was not thwarted. D) Yes, because the statute was a valid congressional exercise of its inherent police powers.

Answer 106

C) Yes, because the statute was a valid congressional exercise, pursuant to the Necessary and Proper Clause, of ensuring that its power to appropriate money for the general welfare was not thwarted. Congress may enact legislation that is necessary and proper to execute its spending power. Here the criminalization of the taking of bribes by an official of an entity that receives substantial federal funds is necessary and proper to ensure that such funds are properly spent. Such funds are provided to the state and local governments pursuant to the Spending Clause

Question 107

In the Labor Management Relations Act, Congress expressly authorized the president to seize plants to avert a labor shutdown if the president determined that a shutdown would threaten national security. In response to a threatened national strike by America’s steel workers, the president ordered the government to seize and operate steel mills to ensure steel production that the president deemed vital to the War on Terrorism and hence to national security. Subsequent to the order, Congress did not explicitly approve or disapprove of the president’s action. One of the companies affected by the president’s order filed a suit in an appropriate federal court claiming that the order violated the Constitution. What is the most likely ruling? A) Congress unconstitutionally delegated its legislative power to the president because the statutory standard—that a shutdown would “threaten national security”—does not provide a specific, intelligible standard. B) The president lacked power as Commander-in-Chief to take this action because it involved domestic affairs, not military decisions in the foreign theater of war. C) The president had Article II power to take this action. D) The president’s action would be lawful only if Congress explicitly approved it.

Answer 107

C) The president had Article II power to take this action. Presidential power under Article II is greatest when the president acts pursuant to Congressional authorization. Here, Congress expressly authorized the president to seize plants to prevent a shutdown that would threaten national security.

Question 108

An organization against drunk driving sought permission from the owner of a mall to pass out leaflets in favor of tougher drunk driving laws in front of a liquor store. The mall owner denied the organization permission. The organization, filing an action in an appropriate court, sought an injunction permitting the organization to pass out its leaflets in accord with its free speech rights. The state’s highest court, interpreting the state constitution, permits the exercise of free speech rights on private property that is regularly held open to the public. Of the following reasons, which is the best argument for granting the injunction? A) Leafleting is a form of speech that is protected by the First Amendment of the United States Constitution. B) The reason for leafleting was related to the place where the organization sought to leaflet. C) The leafleting was permitted by the state constitution. D) By admitting members of the general public, the mall constituted a limited public forum.

Answer 108

C) The leafleting was permitted by the state constitution. A state may expand, but cannot contract, individual rights, such as free speech, granted by the United States Constitution. Note: The opening of private property to the public does not convert it into a public or limited public forum at which leafleting must be permitted despite the objection of the owner of the property.

Question 109

The Occupational Safety and Health Act of 1970 (OSHA) required all private employers in America to meet certain minimum federal standards to ensure safe and healthful work environments. Recently, Congress amended OSHA, extending its coverage requirements to state and local government employers. A state sued in an appropriate federal court, challenging the constitutionality of this amendment. Will the court likely uphold the amendment as constitutional? A) No, because the amendment violates the Tenth Amendment. B) No, because the amendment violates fundamental principles of federalism, because Congress has directly impaired the states’ ability to carry out their integral governmental functions. C) Yes, because the amendment merely affects the activities of states acting in their proprietary capacity. D) Yes, because the amendment is a valid exercise of Congress’s Commerce Clause power.

Answer 109

D) Yes, because the amendment is a valid exercise of Congress’s Commerce Clause power. Note: Neither the Tenth Amendment nor the principle of federalism prevents the application of the federal standards to the state worker

Question 110

Article I, § 4 of the Constitution provides: “The times, places and manner of holding elections for Senators and Representatives shall be prescribed by each state legislature, but Congress may . . . make or alter such regulations.” Congress enacted a statute requiring every state to allow voters to register to vote in federal elections either by mail or at a state motor vehicle department. If a state refuses to comply with the statute and is sued by the federal government, will the state likely prevail? A) Yes, because Congress cannot “commandeer” state legislatures to enact statutes. B) Yes, because Congress cannot “commandeer” state executive officials to carry out federal programs. C) No, because Article I, § 4 permits Congress to require states to change their laws regarding federal elections. D) No, because the statute, which applies to federal elections only, does not interfere with a traditional government function.

Answer 110

C) No, because Article I, § 4 permits Congress to require states to change their laws regarding federal elections. The Elections Clause of Art. I explicitly empowers Congress to override state laws concerning federal elections. This express provision makes irrelevant general principles of federalism embodied in the “commandeering” cases Note: although conducting elections is a traditional function of state governments, the Elections Clause allows congressional interference with that function to the extent that it involves the election of United States senators and representatives.

Question 111

In a state known for its game fish, there are many guide-led fishing expeditions marketed to tourists. The state enacted a statute that required all fishing guides who charge a fee to have a license. The purpose of the statute is to protect the state’s game fish from overfishing. The license costs $100 for in-state residents and $300 for out-of-state residents. If an out-of-state resident challenges the constitutionality of this statute, what is the most likely result? A) The statute will be struck down under the Privileges and Immunities Clause of Article IV, Section 2. B) The statute will be struck down under the Equal Protection Clause. C) The statute will be upheld because engaging in fishing is not a fundamental right. D) The statute will be upheld because regulation of fishing is traditionally a state, rather than national, function.

Answer 111

A) The statute will be struck down under the Privileges and Immunities Clause of Article IV, Section 2. The Article IV Privileges and Immunities Clause prohibits a state from discriminating against nonresidents with respect to the exercise of a fundamental right or engagement in an essential activity, such as ***earning a living***, unless there is substantial justification for the discrimination Note: although engaging in fishing is not a fundamental right, the right to earn a livelihood is an essential activity for purpose of the Article IV Privileges and Immunities Clause.