Constitutional Law Unsure/Incorrect Question

An investor bought an old house in a city's historic district. The investor planned to divide the house into two rental units. For several years before the investor bought the house, there had been much public debate and discussion in the city about the need to preserve the city's older buildings. The mayor had appointed a commission to investigate the issue, and the city had formed a permanent commission for historic preservation. Shortly after the investor bought the house, the city passed a law that required all houses in the district to be used only for single-family occupancy. The investor therefore could no longer divide his house into two rental units. The two units, if rented, would have brought in slightly more income than the investor could make by renting the house as a single unit. Does the single-family law constitute a taking of the investor's property? ANo, because the law is a reasonable use of the police power that the investor could have foreseen when he bought the house. Correct 59.93% of students answered A BNo, because the city has not physically seized or invaded the house. Incorrect 13.17% of students answered B CYes, because the law serves a public purpose. Incorrect 3.71% of students answered C DYes, because the law reduces the economic value of the house to the investor.

A. A regulatory taking occurs if a law restricts property rights in certain ways without seizing possession from the owner. One type of regulatory taking is a law that excessively or unforeseeably restricts the property's use without destroying its value. However, not every regulation affecting property is a taking. In cases involving land-use restrictions, the courts often apply the Penn Central test to decide whether a taking has occurred. This three-factor test balances (1) the law's economic impact; (2) the owner's reasonable, investment-backed expectations; and (3) the character of the government action to decide whether the law amounts to a taking. Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978). The economic-impact factor considers the extent to which the law has decreased the property's value. The investment-backed expectations factor considers whether the owner could reasonably have anticipated the kinds of restraints imposed by the law when the owner invested in the property. The third factor considers the extent to which the law serves a beneficial public purpose, as opposed to serving private interests or unfairly targeting a particular property. Penn Central Transp. Co., id. Here, the law does not destroy the economic value of the investor's house, because it could still be used as a single-family residence. Thus, the Penn Central test will likely apply. The law does limit the value of the house by slightly restricting the investor's potential rental income. However, given the local debate over historic preservation and the formation of a preservation commission, the investor could reasonably have expected use restrictions being placed on the house. Finally, the government's action is of a public character, because it helps to preserve the city's history, which a court is likely to view as a public benefit. Thus, under the Penn Central test, the law is unlikely to be treated as a taking. Answer option B is incorrect. Physical seizure or invasion of the property are not the only forms of taking.(ConLaw-9-19)

A state passed a law stating that no public-school teachers could be members of the Communist Party, a national political party. A woman who was a member of the Communist Party applied for a teaching position and was denied based on the state law. The woman sued, arguing that the state law violated the Bill of Attainder Clause in the United States Constitution. Is it likely that the law violated the Bill of Attainder Clause? A. Yes, because the law prohibited Communist Party members from being public-school teachers. Correct 17.05% of students answered A BYes, because it was unlikely that the state could show a compelling basis for refusing public-school employment to Communist Party members. Incorrect 30.99% of students answered B CNo, because the law did not impose any type of criminal punishment. Incorrect 34.33% of students answered C DNo, because the law did not target a specific person.

A. A statute or regulation violates the twin Bill of Attainder Clauses if the legislation both: (1) imposes punishment and (2) identifies specific entities that will receive the punishment either by name or by necessary implication. For the first element, courts typically assess whether a statute imposes punishment by referring to existing, traditional forms of punishment in other contexts. For purposes of bill-of-attainder claims, punishment may include imprisonment, banishment, punitive confiscation of property, and statutory bans on specific individuals or groups from participating in particular types of employment or professions. See Nixon v. Adm'r of General Servs., 433 U.S. 425, 474 (1977). For the second element, even if a statute imposes a punishment of some sort, the statute is permissible if it merely identifies modes of conduct for which the punishment may be imposed after a proper enforcement proceeding. What is not permissible is specifically identifying the recipient of the punishment. Here, the state law identifies a specific group: members of the Communist Party. The law then imposes a punishment on this specific group by banning the group's members from participating in employment as public-school teachers. Because the state law imposes a punishment on a specifically identified group of people, the law violates the Bill of Attainder Clause.(ConLaw-9-20)

Congress passed the War Injured Benefits Act. According to the act, federal courts were responsible for determining whether applicants for certain military benefits were eligible for those benefits. The federal courts would hear evidence about the applicants' military service and injuries and make a calculation of the proper benefits. The federal court would then forward the information to the secretary of defense (an official in the executive branch), along with the recommended amount of benefits. If the secretary of defense disagreed with a decision, the secretary could strike the person from the list and deny the person any benefits. A man was granted benefits by a federal court, but those benefits were later struck down by the secretary of defense. The man appealed to the United States Supreme Court, arguing that the act was invalid. Was the act an invalid exercise of congressional authority? A. Yes, because federal court judgments may be reviewed only by other Article III courts. B. Yes, because federal court judgments may be reviewed only by either other Article III courts or Congress C. No, because Congress has the authority to delegate adjudicatory power to members of the executive branch and non-Article III federal courts. D. No, because Congress did not dictate to the federal courts that any particular decision must be made in these cases.

A. Congress has broad authority to both expand and limit the jurisdiction of the lower federal courts. Congress is even allowed to delegate initial adjudicatory power to federal administrative agencies and non-Article III federal courts. However, one of the few clear limits on this power is that a final decision from a lower federal court may be reviewed only by other courts in the Article III hierarchy. This means that Congress cannot provide for extrajudicial revision of a federal court's final judgment by either the executive or the legislative branch. (ConLaw-1-2)

A city passed a law that prohibited city residents from possessing handguns. At the same time, the law made bar owners who allowed guns on their property subject to civil damages from any patron who felt intimidated by seeing a gun on the property. If a bar patron sued under the city's law, then the law said that the claim would be tried before a judge without a jury. A bar owner sued the city, arguing the new law violated his individual rights under the United States Constitution. Specifically, the bar owner claimed that the city's law violated the bar owner's Second Amendment's right to bear arms and the Seventh Amendment's right to a jury trial. Which of the bar owner's claims give the bar owner a potentially enforceable right against the city, if either? A. Only the Second Amendment claim. B. Only the Seventh Amendment claim. C. Both the Second Amendment claim and the Seventh Amendment claim. D. Neither claim.

A. However, there are still a handful of provisions in the Bill of Rights that have not been incorporated under the Fourteenth Amendment's Due Process Clause and, therefore, do not apply as limitations on actions by state and local governments today. For instance, currently, the following constitutional provisions apply only to the federal government and do not place any limitations on state or local governments: the Third Amendment, the Grand Jury Indictment Clause of the Fifth Amendment, and the Seventh Amendment. (ConLaw-7-13)

A man was convicted for possession of marijuana after police officers searched the trunk of his car. The man filed a motion to suppress the evidence, arguing that the search violated his rights under both the state's constitution and the United States Constitution. The man's motion to suppress was granted because the state trial court believed that the search violated the state's constitution, which provided more protection during searches than the U.S. Constitution. The state appealed to the state supreme court, which was the highest court in the state. The state supreme court ruled against the man, finding that the search was lawful under both the state's constitution and the U.S. Constitution. The state supreme court's decision cited state law in support of its ruling, but the state supreme court primarily based its decision on its understanding of federal case law. The man appealed to the United States Supreme Court. Does the U.S. Supreme Court likely have jurisdiction to hear the man's appeal? A. Yes, because the state court's decision was based primarily on federal law. B. Yes, because this was a criminal matter involving the deprivation of liberty. C. No, because there was an adequate and independent state ground to support the lower court's judgment. D. No, because the state's constitution provided more protection than the U.S. Constitution.

A. If a state-court decision rests primarily on federal law, the U.S. Supreme Court has jurisdiction to hear the appeal. In these cases, the U.S. Supreme Court assumes that the state court decided the case the way that it did because it believed federal law required it to do so. However, note that if the state court had merely used federal precedents as guidance and had not based its decision on federal law, it would still be possible that the state court's decision rested on an independent-and-adequate state-law ground that the U.S. Supreme Court could not review. If: (1) the basis for a state court's decision is state law, (2) that state law adequately supports the decision, and (3) the decision is independent of federal law, then the U.S. Supreme Court may not review that decision. (ConLaw-1-6)

In order to promote railway safety, a state legislature passed a law that prohibited trains from having more than 14 passenger cars or 70 freight cars. As a result, trains traveling into the state would have to be broken up into shorter trains just outside the state's boundaries. If a court concluded that the law was unconstitutional under the dormant commerce clause, which of the following is the most likely explanation for that outcome? A. Any safety gains made by shortening train length were offset by a greater accident rate caused by increased numbers of shorter trains traveling the rails. B. The state has a legitimate interest in protecting the safety of citizens using and crossing the railways. Incorrect C. Two of the 20 railway carriers operating nationwide and through the state regularly use more than 14 passenger cars or more than 70 freight cars. D. Breaking up overly long trains into trains within the limit set by the law was not expensive for railway operators.

A. Procedural due process is flexible and doesn't always require the full protections and procedures of a formal trial. For deprivations of government benefits, such as a job or welfare benefits, an informal hearing before a neutral decision-maker is usually sufficient. (ConLaw-7-2)

A farmer engaged in speculation regarding the cotton-futures market. This speculation resulted in the farmer owing a debt to a banker. The transaction at issue occurred entirely within one state, but the transaction was also illegal in that state. When the farmer refused to repay the money, the banker initiated an arbitration proceeding. Even though the state's law made the transaction illegal and unenforceable, the arbitration concluded with a judgment in the banker's favor. The banker then brought a case in a second state's court to enforce the judgment against the farmer. The second state's court had proper personal jurisdiction over the farmer. In the second state's court, the farmer correctly argued that the transaction that he and the banker engaged in was illegal under the first state's law, the state in which the transaction had actually happened. The second state's court refused to hear this argument and entered a directed verdict in favor of the banker. The farmer then brought an appeal in the first state's court, and the courts of the first state found in the farmer's favor. The first state's court specifically held that the second state's court could not enforce a transaction that was illegal under the first state's law. The first state's court also noted that the first state did not have a strong public policy regarding cotton-futures speculation. The banker appealed the ruling in favor of the farmer from the first state's court, arguing that the first state's court could not refuse to enforce the judgment from the second state's court on the matter (and in favor of the banker). Must the first state's court enforce the judgment from the second state's court on the matter? A. Yes, because the United States Constitution requires state courts to respect and give effect to the decisions of the courts of other states. B. Yes, because the case affects interstate commerce. C. No, because the transaction was illegal under the first state's law. D. No, because state courts may use discretion to decide whether or not to enforce another state court's decision.

A. The Full Faith and Credit Clause of Article IV in the U.S. Constitution regulates relations between the states by requiring states to recognize other states' public acts, records, and judicial proceedings. See U.S. Const. art. IV, § 1. Thus, generally, a judgment obtained in the courts of one state must be enforced by the courts of another state. However, a court may refuse to enforce a judgement from another state if the judgment is in direct contravention of a strong public policy of the enforcing state. Although the first state had a law that made the transaction illegal, that is not the same as having a strong public policy against enforcing the transaction.(ConLaw-5-7)

An oil company conveyed the surface of a plot of land it owned to a homebuilder. In this transfer, the company retained the right to the land underneath the property, and an express provision in the deed stated that the homebuilder was taking the surface subject any risks associated with oil drilling beneath the surface. However, there was no specific indication that there was actually oil beneath the surface. The homebuilder built a home and later sold it to another person. Several years later, the state enacted a statute that banned all oil drilling and other subsurface work beneath homes and other properties because of concerns regarding the structural integrity of surface land. This meant that the subsurface portion of the land that the company still owned no longer had any economically viable use. The company sued the state, arguing that the state statute resulted in a compensable taking. Under the Fifth and Fourteenth Amendments to the United States Constitution, did the state statute result in a compensable taking? AYes, because the state statute left no economically viable use for the company's piece of subsurface property. Correct 53.37% of students answered A BYes, because the state statute gave additional value to the homeowner's property by protecting its subsurface integrity. Incorrect 3.2% of students answered B CNo, because the company had already made revenue from the land by the sale of the surface rights. Incorrect 8.46% of students answered C DNo, because the possible revenue from oil drilling was too conceptual to be compensable.

A. The Takings Clause in the Fifth Amendment to the U.S. Constitution provides that private property shall not "be taken for public use, without just compensation." A taking may be a possessory taking or a regulatory taking. A regulatory taking occurs if, through action or inaction, the government has left no economically viable use for the private property. See Pa. Coal v. Mahon, 260 U.S. 393 (1922). The United States Supreme Court has identified three factors that may be balanced to decide if a particular government action (or inaction) has eliminated enough economically viable use for private property that the action (or inaction) qualifies as a regulatory taking: (1) the economic impact of the regulation on the claimant, (2) the extent to which the regulation has interfered with investment-backed expectations, and (3) the character of the governmental action. See, e.g., Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978). Here, the company sold the surface rights to this land and owns only the subsurface portion of the property. The state statute prevents the company from drilling or doing any kind of subsurface work on the company's subsurface portion. Because the state statute has left no economically viable use for the company's subsurface piece of property, the state's act of passing the statute resulted in a compensable regulatory taking of the company's property interest in that piece of subsurface property.(ConLaw-9-15)

Congress passed the Ethics in Government Act. Under the act, upon request of the United States attorney general, a court called the Special Division could appoint an independent counsel to investigate and prosecute high-ranking government officials for violations of federal criminal laws. Once an independent counsel was appointed, the act gave the U.S. attorney general supervision over the independent counsel, including the exclusive power to remove that independent counsel for good cause. An independent counsel was appointed to investigate the United States solicitor general. The U.S. solicitor general argued that the appointment of the independent counsel by the Special Division court was unconstitutional because it violated the Appointments Clause in the United States Constitution. Is it likely that the appointment of the independent counsel was constitutional? A. Yes, because the independent counsel was being supervised by a higher-level executive-branch official who was not the president of the United States. B. Yes, because the president of the United States could still pardon anyone prosecuted by the independent counsel. C. No, because the independent counsel was under the supervision of the U.S. Attorney General and not the Special Division court that appointed the independent counsel. D. No, because the independent counsel was an executive-branch officer who must be appointed by the president of the United States.

A. Under the Appointments Clause of Article II of the U.S. Constitution, the president of the United States has the authority to appoint (subject to the Senate's advice and consent) federal ambassadors, ministers, judges, and thousands of other federal officers. These officers are known as principal officers. The U.S. Constitution draws an essential but elusive distinction between these principal federal officers and inferior federal officers. Unlike principal officers, Congress may give the president alone, the heads of government departments, or the courts the power to appoint inferior federal officers, all without Senate confirmation. There is no clearly articulated test for distinguishing between principal and inferior officers. However, generally, if the officer has the final word on executive matters within the officer's authority, then it is likely that the officer is a principal officer (e.g., members of the president's cabinet). If the officer is supervised by anyone in the executive branch other than the president, then it is likely that the officer is an inferior officer. See Edmond v. United States, 520 U.S. 651 (1997). (ConLaw-3-9)

A prison inmate wanted to wear a turban, as required by his religious faith. The prison had a policy of not allowing any inmates to wear head coverings, for security reasons. The inmate sued the prison, claiming that the policy was a violation of his rights under the Religious Land Use and Institutionalized Persons Act. If the court rules against the inmate, what is the most likely explanation? A. The policy is narrowly tailored to achieve a compelling governmental interest. B. The policy is a valid and neutral regulation of general applicability that only incidentally burdens a specific religious practice. C. The prison does not allow inmates of any religion to wear head coverings, so the policy does not discriminate against any particular religion or practice. D. The prison is a nonpublic forum that may restrict speech and expression as long as the restriction is viewpoint neutral and reasonable.

A. the Religious Freedom Restoration Act of 1993 and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The latter act applies strict scrutiny to laws that significantly burden religion in the specific contexts of land-use decisions, prisons, and other institutionalization contexts. (ConLaw-10-1)

After the most recent census, a state was required to decrease the number of its congressional representatives by two. In redistricting to reflect this change, the state General Assembly, which was predominately Republican at that time, enacted a redistricting plan that was pro-Republican. The plan was ultimately passed by the state governor, who was also a Republican. A registered Democrat sued the state official in charge of the new plan, alleging that the General Assembly had engaged in unconstitutional political gerrymandering when it established the new congressional districts. The state official, who was also a Republican, moved to have the action dismissed, arguing that it was a nonjusticiable political question. Does the action present a nonjusticiable political question? A. Yes, because there is a lack of judicially discoverable standards for resolving the issue. B. Yes, because the appropriateness of the plan had already been upheld by the state governor. C. No, because the redistricting was a clear abuse of power by the controlling political party. D. No, because the redistricting was an example of extreme partisan gerrymandering.

Answer option A is correct. There are six different factors for courts to consider to determine whether a particular dispute presents a non-justiciable political question: (1) the existence in the United States Constitution of a textually demonstrable commitment of the issue to a different political department, (2) a lack of judicially discoverable and manageable standards for resolving the issue, (3) the impossibility of deciding the issue without an initial policy determination of a kind clearly for nonjudicial discretion, (4) the impossibility of judicially resolving the issue without disrespecting other branches of the government, (5) an unusual need for unquestioning adherence to a political decision already made, or (6) the possibility of embarrassment from multiple pronouncements by various departments on one question. See Baker v. Carr, 369 U.S. 186 (1962). The first two factors carry the most weight. However, if one or more of any of these factors indicates that a dispute presents a political question, then the dispute is not justiciable, and the federal courts should dismiss the case. The United States Supreme Court has repeatedly found that political gerrymandering issues are nonjusticiable political questions because there is a lack of judicially discoverable standards for determining whether a district was drawn in a constitutional or unconstitutional way.(ConLaw-2-11)

Because of projected overcrowding in the parking lots at a city's commercial harbors, the city enacted an ordinance that made it illegal for commercial trucks and other vehicles to park overnight in a parking lot for a city harbor. The consequence for violating the ordinance was a ticket with criminal penalties or fines. Not many trucks parked overnight in these lots, but they sometimes did so during storms or hazards that shut down interstate highways leaving the city. After the city ordinance was passed, the city raised the possibility of revisiting the issue before actually enforcing the ordinance. The city then scheduled a hearing to allow new evidence to be heard regarding the potential efficacy of the ordinance. Before the hearing had occurred or the new ordinance was enforced, a group of interstate trucking companies sued the city commissioner in federal court, arguing that the new ordinance unlawfully impacted interstate trucking. The city commissioner moved to dismiss the lawsuit, arguing that the group's claim was not ripe for adjudication. Is it likely that the group's claim is ripe for adjudication? A. No, but only because the ordinance has not been enforced yet. B. No, both because the ordinance has not been enforced yet and because withholding judicial review at this time will not cause significant hardship to the trucking companies. C. Yes, because future enforcement of the ordinance is imminent. Incorrect D. Yes, because a trucker faces potential criminal penalties or fines for violating the ordinance.

Answer option B is correct. Ripeness concerns the timing of a lawsuit and whether the plaintiff's action is premature. If a claim is not ripe, a party may not bring suit. In general, if an injury is only a future, hypothetical injury, then the claim is not ripe, and a party may not sue for that claim unless and until an injury actually occurs. However, if a potential future injury is both severe enough and likely to occur, then courts may allow a claim to go forward without forcing a party to actually suffer that injury. This means that if a party is challenging the future enforcement of a statute or regulation, courts will determine whether the challenge is ripe for review based on the hardship to the party if the court withholds consideration (and the statute or regulation goes into effect). See Abbott Labs. v. Gardner, 387 U.S. 136 (1967). Here, the city ordinance has not been enforced yet, is undergoing further review, and it does not appear to present significant hardship to the trucking companies yet because it affects only rare instances of trucks parking overnight due to storms or other hazards. Although violating the ordinance in one of those rare situations might result in criminal penalties, those penalties are not severe. Rather, it is a type of parking ticket that comes with ordinary criminal penalties and fines that could be challenged in court and completely reversed if appropriate. Finally, unlike other cases that have found hardship, the companies do not need to actually do anything prohibitively expensive now to avoid liability under the new ordinance (like change their labeling or manufacturing practices). Taking all these factors into consideration, it is not likely that the group is facing sufficient hardship right now to make the claim ripe for adjudication. For a potential future injury to make a claim ripe, the injury must be both severe and likely to occur. Here, the criminal penalties are the fines associated with a parking ticket and are not likely to be severe. In addition, these criminal penalties are not likely to occur here, at least not yet, because the city is still considering whether to enforce the ordinance at all.(ConLaw-2-17)

One summer, a city was predicted to have particularly damaging tornados. In response to public-safety concerns, the city passed a law that required all buildings on the perimeter of the city, and all buildings five stories or higher, to house weather sensors on their roofs that could detect the possibility of a forming tornado. The weather sensors consisted of a two-foot square box and a single power cable. The sensors would be installed at the beginning of the expected tornado season, and then they would be taken down when tornado season ended a few weeks later. Depending on the success of the program, the sensors might become permanent fixtures, but there were no plans to continue the program for more than one summer. A property owner sued the city, alleging that the city law resulted in a taking under the Takings Clause of the Fifth Amendment of the United States Constitution. If the court finds that the city law did not result in a taking, which of the following is the most likely reason for the court's ruling? AThe detection of tornados served a valid public purpose. Incorrect 26.0% of students answered A BThe sensors were on the buildings only a few weeks of the year. Correct 34.62% of students answered B CThe sensors occupied only a minor part of a person's private property. Incorrect 10.95% of students answered C DThe sensors were rationally related to an important government interest.

Answer option B is correct. The Takings Clause in the Fifth Amendment to the U.S. Constitution provides that private property shall not "be taken for public use, without just compensation." A taking may be a possessory taking or a regulatory taking. If the government confiscates or physically occupies private property or seeks to do so, that is a possessory taking. Even a minor physical occupation of private property is a possessory taking if the government permanently confiscates or occupies the property or authorizes another to do so. The fact that the physical occupation was minor does not prevent this from being a possessory taking of the private building space; any occupation of private property may be a taking. However, the fact that the government's occupation of private property is temporary might be enough to prevent the occupation from being a possessory taking. (ConLaw-9-13)

Several private parties petitioned the Environmental Protection Agency (EPA) to issue regulations governing greenhouse gas emissions. The EPA declined these petitions and did not issue the requested regulations. A state joined with a group of private plaintiffs whose regulation requests had been declined. The state and the group then sued the EPA, seeking declaratory relief about the regulation of greenhouse gas emissions. The EPA argued that the state did not have standing to be a plaintiff in the lawsuit. The state argued that it had standing because: (1) greenhouse gases exacerbated global warming and (2) if the EPA did not regulate those emissions soon, then the unregulated gases being released now would ultimately cause the state to lose coastal lands, including some land in a state park. Does the state likely have standing to sue? A. No, because states do not have standing to sue the federal government to enforce their own interests. B. No, because although the danger to the state from the unregulated gases was imminent, the state had not yet suffered a concrete injury. C. Yes, because the state itself would suffer environmental damage from unregulated greenhouse gases. D. Yes, because the state was seeking to protect the rights of its coastal citizens.

Answer option C is correct. To establish standing, the complaining party must: (1) suffer an injury-in-fact, (2) that is fairly traceable to the other party's allegedly unlawful conduct, and (3) that is likely to be redressed by the requested relief. A complaining party can satisfy the injury-in-fact requirement by demonstrating that the party has suffered a concrete and particularized injury that is either actual or imminent. See id. Here, the state claimed that it would lose coastal lands currently in a state park if the EPA did not regulate emissions now. The potential loss of coastal lands belonging to the state is a particularized injury to the state. Further, because this injury will occur if the gases are not regulated soon, the danger of the concrete injury is imminent. Finally, this injury is fairly traceable to the allegedly wrongful conduct by the EPA, and it is likely to be redressed by the requested relief. Accordingly, the state had standing to sue.(ConLaw-2-4)

A naval pilot was charged with cooking and selling methamphetamine to fellow military personnel. The pilot had not lived on a military base but had rented a house in the general community. The pilot had cooked and sold the methamphetamine out of the garage of the house he rented in town. The pilot was court-martialed by a military court. The court had been created by Congress as part of a larger military-court system. However, no court in the military-court system was an Article III court. The pilot moved to have these criminal charges dismissed, arguing that Congress lacked the constitutional authority to establish a non-Article III court that could decide criminal disputes like this one, and that the pilot was entitled to have any criminal charges heard by an Article III court. Did Congress have the constitutional authority to create a non-Article III, military court to decide this kind of criminal dispute? A. No, because only the executive branch may create non-Article III courts. B. No, because non-Article III courts may decide only regulatory disputes, not criminal disputes. Incorrect C. Yes, because the non-Article III tribunal was resolving a public health and safety issue. D. Yes, because the non-Article III tribunal was resolving a criminal offense committed by a person in the military.

Answer option D is correct. Article III, Section 1 of the United States Constitution places the judicial power of the United States in the United States Supreme Court and any inferior courts that the Congress may create. See U.S. Const. art. III, § 1. These are referred to as Article III courts. In addition to Article III courts, the U.S. Constitution also gives Congress the authority to establish non-Article III courts to resolve disputes in the federal territories, resolve offenses arising out of the military, or for the protection of certain public rights. See Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015); Solorio v. U.S., 483 U.S. 435 (1987); Palmore v. U.S., 411 U.S. 389 (1973). Here, Congress created a non-Article III court system. Although Congress has only limited authority to create non-Article III courts, Congress is allowed to create non-Article III military courts to decide offenses arising out of the military. This includes tribunals that decide criminal offenses arising out of the military. Accordingly, because the pilot was actively serving in the military at the time of his offense, Congress was authorized to create a non-Article III military court to decide this criminal dispute.(ConLaw-2-19)

The military recently received congressional funding to purchase 100 new stealth bombers. The secretary of defense had the authority to decide which company would get the lucrative contract to build the planes. The secretary awarded the contract to a small company without much experience building military aircraft, a decision that surprised many. Later, the secretary was indicted for allegedly taking a bribe in exchange for awarding the contract to that company. The secretary attempted to subpoena memos between her and the president discussing the decision about whom to award the contract. The secretary claimed that the memos would contain information showing that her decision was based entirely on legitimate considerations and not the result of a kickback. The president sought to quash the subpoena. The president argued that the memos between him and the secretary contained discussions of technical details relating to different proposed plane designs and that divulging that information would compromise national security by revealing this information to enemy nations. Would a court likely quash the subpoena for the memos? A. Yes, because there is absolute executive privilege for all presidential communications. B. Yes, because there is a limited executive privilege for the protection of military, diplomatic, or sensitive national security secrets. C. No, because there is a limited executive privilege for the protection of military, diplomatic, or sensitive national-security secrets, but it must always yield to the compelling public interest in securing evidence for a criminal trial. D. No, because executive privilege provides the president immunity from lawsuits but does not prevent him from having to turn over documents.

B. In United States v. Nixon, 418 U.S. 683 (1974), the United States Supreme Court affirmed that executive privilege exists, even though it is not stated explicitly in the Constitution. The Court also held that a generalized claim of privilege would not "prevail over the fundamental demands of due process of law in the fair administration of criminal justice." However, the Court held that a claim of privilege could prevail when it was needed to "protect military, diplomatic, or sensitive national security secrets." This standard is met if the documents in question contained detailed information about military planes, like the ones here do.(ConLaw-3-14)

Congress enacted the Handgun Prevention Act. The act required that the United States attorney general implement a nationwide background-check system for handgun purchases. In the interim, while the national system was being created, state and local officials were required to conduct background checks of prospective handgun purchasers. Specifically, county law enforcement officers, like sheriffs or constables, would perform background checks whenever a firearm seller alerted them to a new sale. If a prospective purchaser passed the background check, then the seller could sell a handgun to the purchaser. A firearm seller sued the state government in federal court, arguing that the new act gave the chief law enforcement officer in his county unlawful power over the seller's right to contract. The state moved to dismiss the claim, arguing that the federal court had no power to hear it. Can the federal court hear the firearm seller's claim? A. No, because the act requires state officials to enforce it in the interim, not federal officials. B. No, because the firearm seller cannot sue the state in federal court. C. Yes, because the state is interfering with the firearm seller's right to contract. D. Yes, because a federal law is compelling the state officials to conduct the background checks.

B. The Eleventh Amendment to the United States Constitution gives the states sovereign immunity. This sovereign immunity prohibits a federal court from hearing claims against a state government brought by a private party or a foreign government. Here, because the firearm seller is a private party who is suing the state, the federal court should dismiss the claim based on the Eleventh Amendment. the state's sovereign immunity protects it from a lawsuit by a private party in federal court regardless of the nature of the claims in the proposed lawsuit. (ConLaw-1-3)

A state law granted property-tax exemptions for property used for educational, charitable, or religious purposes. The law was based on the idea that such institutions were beneficial for the community at large and therefore should not have their activities hindered by property taxation or the risk of losing property for nonpayment of taxes. An individual challenged the tax exemption for property used for religious purposes as a violation of the Establishment Clause. Is a court likely to find that the law is unconstitutional? A. No, because the law applies equally to all religious groups. B. No, because the law does not create a direct benefit based on religion, but rather exempts religious groups from a general law. C. Yes, because the law has no secular legislative purpose. D. Yes, because the law's principal effect is to advance religion.

B. The Establishment Clause of the First Amendment bars laws that support specific religious groups or religious activity in general. In evaluating the constitutionality of a law, courts apply the Lemon test, from Lemon v. Kurtzman, 403 U.S. 602 (1971). Under the Lemon test, a law must satisfy all three of the following conditions: 1) the law must have a secular legislative purpose; 2) the law's principal effect must neither advance nor inhibit religion; and 3) the law must not foster excessive government entanglement with religion. In evaluating the second prong of the Lemon test, the U.S. Supreme Court has drawn a distinction between laws that create direct benefits based on religion and laws that exempt religious groups from otherwise applicable legal requirements. Compare Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S. 756, 771 (1973) (law that "does not aid one religion more than another but merely benefits all religions alike" still violates the Establishment Clause), with Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 338 (1987) (law that "lift[s] a regulation that burdens the exercise of religion" is permissible, even if same benefit not extended to secular entities). Therefore, a law that creates direct benefits based on religion will be unconstitutional, while a law that merely exempts a religious group from an otherwise generally applicable legal requirement will be constitutional.(ConLaw-10-2)

A town had 10,000 eligible voters. In recent elections, approximately 40 percent of these eligible voters had voted, with most votes going to the two major party candidates. A resident of the town sought to run for mayor as an independent candidate. This resident learned that to place her name on the ballot, she would need 1,500 signatures, almost as many as the losing major party candidate in the last election. Major party candidates automatically received ballot placement without the need to collect signatures. The resident sued the city, claiming that the law requiring independent candidates to get 1,500 signatures for ballot placement violated the Equal Protection Clause. Is the court likely to find that the city's signature requirement for independent candidates is constitutional? A. No, because the requirement draws an unfair distinction between major party candidates and independent candidates. B. No, because the requirement is extremely burdensome to independent and minor party candidates. C. Yes, because the city has a legitimate interest in ensuring that only serious candidates are placed on the ballot. D. Yes, because political affiliation is not a protected class under the Equal Protection Clause.

B. The government has the right to make rules about who is eligible to run for office and to reasonably limit who may be placed on the ballot. See Burdick v. Takushi, 504 U.S. 428, 433 (1992). However, laws that are unduly burdensome to third parties, independent candidates, or indigent candidates are reviewed under strict scrutiny. See id. at 434. Thus, for a law burdening third parties, independent candidates, or indigent candidates to survive strict scrutiny, the government will need a compelling interest for placing that significant burden on those particular people and the burden must be narrowly tailored to just achieve that compelling interest. For laws imposing signature requirements to get ballot access, the U.S. Supreme Court has found that requiring 1 percent of all votes cast in the previous election was permissible, but at the outer boundaries of support that a government may require.(ConLaw-8-9)

Several White House aides were charged with various crimes, including a charge of conspiracy to defraud the United States. As part of the investigation into these charges, the United States District Court for the District of Columbia subpoenaed various tapes and documents relating to specific meetings between executive-branch officials, including the aides, and the president. These materials contained key evidence for the conspiracy charges. The president asserted an absolute claim of privilege over all the confidential communications that took place during any of the meetings. Does the president have a claim of privilege over the confidential communications during the meetings in question that will prevent the tapes and documents from forced disclosure in the case? A. No, because all executive-branch communications are official communications of the U.S. government subject to public release. B. No, because the aides are being criminally investigated. C. Yes, because there is a presumptive presidential privilege for all confidential communications. D. Yes, because there is an important public interest in keeping presidential communications confidential.

B. The president of the United States is protected by executive privilege. Generally, this executive privilege protects the contents of internal, confidential executive-branch deliberations from forced or compulsory disclosure, even in court actions. See United States v. Nixon, 418 U.S. 683 (1974). However, the executive privilege is a qualified privilege, not an absolute one. Although this qualified executive privilege provides a fair amount of protection for internal, executive-branch documents, because the privilege is qualified, it can be overcome. For example, if the privileged material is key evidence in a criminal prosecution, then the material must be disclosed in the case, even if the privileged executive material would be protected in other situations.(ConLaw-3-15)

A huge increase in the amount of presidential pardons caused a significant increase in the volume of federal cases seeking damages following a pardon. To increase efficiency, Congress passed a statute expressly dictating how federal courts should resolve pending cases involving these pardons. Specifically, instead of providing standards that would allow the courts to determine if a presidential pardon was admissible, the statute stated that a presidential pardon was categorically inadmissible as evidence in cases seeking compensation or the return of property following a pardon. The statute also said that in all cases seeking damages following a pardon, including pending cases, the federal courts were required to make a factual finding about whether the pardon was obtained with or without an express disclaimer of guilt. If the pardon was obtained without an express disclaimer of guilt, then federal jurisdiction over the claim was barred, and the federal courts were required to dismiss the claim. Is the statute a valid exercise of congressional authority to limit the jurisdiction of the lower federal courts? A. No, because Congress cannot abrogate judicial authority regarding claims for damages. B. No, because Congress cannot expressly dictate how a federal court should resolve a pending case. C. Yes, because Congress is free to change the law in a manner that will necessarily lead a court to rule for one party or another. D. Yes, because Congress has broad discretion over the jurisdiction of federal courts.

B. There are three limits on Congress's power over federal court jurisdiction. One of the limits is that Congress cannot exercise its power over federal jurisdiction in a way that expressly dictates how the federal court should resolve a pending case. U.S. v. Klein, 80 U.S. (13 Wall.) 128 (1871). Congress is free to change the law in a manner that could help or hurt a party, like by setting new standards that courts should use to make decisions. Here, the question states that Congress is expressly dictating how federal courts should resolve certain pending cases. Accordingly, this statute is not a valid exercise of congressional authority. (ConLaw-1-16)

A state program provided funds to private charities that were dedicated to combating intravenous drug abuse. State law imposed two different conditions on charities receiving grants from the program. First, the charity could not use the funds to pay for or lobby for safe-injection sites for drug users. Second, the charity had to sign a declaration expressing an opposition to the use of safe-injection sites as a method of combating drug abuse. How will a court likely rule on the constitutionality of each provision? A. Both the provision limiting the use of funds and the provision requiring the declaration are unconstitutional. B. The provision limiting the use of funds is constitutional; the provision requiring the declaration is unconstitutional. C. The provision limiting the use of funds is unconstitutional; the provision requiring the declaration is constitutional. D. Both the provision limiting the use of funds and the provision requiring the declaration are constitutional.

B. he U.S. Supreme Court has upheld certain limitations on speech that are imposed as a condition of the receipt of public benefits, while striking down others. For example, the Supreme Court has upheld a ban on the use of federal funds to provide educational, counseling, and medical services relating to abortions. Rust v. Sullivan, 500 U.S. 173 (1991). However, it has struck down a law requiring any organization receiving federal funding to adopt a policy expressing opposition to prostitution and human trafficking. Agency for Int'l Dev. V. Alliance for Open Soc'y Int'l, Inc., 570 U.S. 205 (2013). The Court has generally allowed conditions that restrict the use of government funds to certain purposes, while disallowing restrictions that require recipients of funds to avow or disavow certain beliefs. See, e.g., Rust v. Sullivan, 500 U.S. at 197 ("unconstitutional condition" occurs when "the Government has placed a condition on the recipient of the subsidy rather than on a particular program or service") (emphasis in original).(ConLaw-10-8)

A woman sued a casino in state court claiming violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), a federal act that targeted large criminal organizations. The woman and the casino were both citizens of the same state. The casino filed a motion to dismiss the case, claiming that the state court had no jurisdiction to hear the claim. The woman argued that RICO contained no express statement or legislative history giving federal courts exclusive jurisdiction over claims arising under the law, and that the state court was generally competent to resolve these claims. The casino responded that RICO did not expressly grant jurisdiction to state courts. Does the state court have jurisdiction to hear the woman's RICO claim? A. Yes, because the state has jurisdiction to hear the claim under the provisions of the Eleventh Amendment. B. Yes, because state courts have concurrent jurisdiction and are considered generally competent to hear federal law claims, and RICO contains no specific jurisdictional limitation. C. No, because the woman's claim arises from a federal law and federal courts have exclusive jurisdiction over all federal-law claims. D. No, because Congress must specifically give state courts jurisdiction to hear federal-law claims, and RICO does not contain language expressly granting jurisdiction to state courts.

B. state courts are considered generally competent to resolve claims arising under federal law. This means that, unless Congress clearly indicates otherwise, state courts have concurrent jurisdiction with the federal courts to hear federal-law claims. Congress may eliminate state-law jurisdiction over a specific federal claim through an express statutory directive, an unmistakable implication from the law's legislative history, or a clear incompatibility between state-court jurisdiction and federal interests.(ConLaw-1-10)

Congress passed the Nationality Act, which stated that any U.S. citizen could face monetary penalties for voting in a foreign political election. A man was born in the United States and was a U.S. citizen. However, the man lived most of his life in another country and voted in a that country's national election. Based on the man's vote, the federal government found that the man had violated the act and fined the man. The man sued the federal government, arguing that Congress did not have the power to fine him for voting in a foreign election. Is it likely that Congress had the power to fine the man for voting in a foreign election? A. No, because voting in a foreign election is not engaging in foreign commerce. B. No, because Congress has no power over a U.S. citizen's actions in a foreign state. Incorrect C. Yes, because Congress has some power to regulate foreign affairs. D. Yes, because voting touches upon international commerce

C. Although the United States Constitution does not specifically give Congress the power to regulate foreign affairs, it is well-accepted that Congress does have some powers to regulate foreign affairs. (ConLaw-3-2)

A student was terminated from a vocational nursing program that she was attending at a local nursing school. The nursing school was a private, for-profit business and was one of several nursing schools in the state. The nursing school operated under a state license and had to follow state regulations for nursing and health colleges. The nursing school also received state and federal funding through student loans which were obtained by the individual students themselves. The student sued, claiming that the school was a state actor and that she had been terminated from the school's program in violation of her Fourteenth Amendment rights. Is it likely that the nursing school was a state actor (and, therefore, subject to claims based on the Fourteenth Amendment)? A. Yes, because the nursing school received state and federal funding through student loans. B. Yes, because the nursing school operated under a state license and had to follow state regulations for nursing and health colleges. C. No, because the school was not highly entwined with the state. Correct D. No, because a private actor may never be considered a state actor.

C. Although the school needed to get a state license and follow general state regulations, following general laws is not enough interaction between the school and the state to convert the school's actions into governmental actions. Looking at the totality of the circumstances, there is very little actual entwinement between the school and the state, if any. For example, there are other places students can get nursing degrees in the state. Further, state officials do not seem to be employed or otherwise part of the decision-making process at the school. In addition, the students obtain any governmental student loans independently, without any direct involvement between the school and the governmental funding source. Indeed, there is no indication that this private entity meets any of the possible tests to convert its actions into state actions. Most likely, the nursing school will not be considered a state actor, and, therefore, will not be subject to the constraints of the Fourteenth Amendment. Answer options A and B are necessarily incorrect for the same reasons. (ConLaw-7-15)

A city was concerned with the increasing numbers of protests and demonstrations in its central park. These protests frequently tied up traffic, required additional police presence, and disturbed the peace and quiet of nearby residents. In response, the city passed a new law that had two parts. The first part of the law limited use of the park to between 6:00 a.m. and 10:00 p.m. This restriction was based on the city's concern that nighttime gatherings posed a greater disturbance to residents who were trying to sleep. The second part of the law required all gatherings of more than 10 people to apply for and receive a permit. The chief of police had sole discretion to decide whether to award a permit, but a denial could be appealed to the city council. How will a court likely rule as to the constitutionality of each part of the new law? A. Both parts of the law are unconstitutional. B. The daytime restriction part is unconstitutional; the permit requirement is constitutional. Incorrect C. The daytime restriction part is constitutional; the permit requirement is unconstitutional. D. Both parts of the law are constitutional.

C. Any regulations of speech in public forums must be content neutral and must also meet certain additional requirements. First, if the regulation is one of time, place, or manner restriction, it must be reasonable and still leave open adequate alternative avenues for speech. Second, if the government requires a license or permit for speech in the public forum, that requirement must serve an important government purpose, provide objective criteria to govern the awarding of licenses, and create a procedural mechanism for prompt resolution of disputes over a permit or license refusal. Third, the regulation must be narrowly tailored to achieve the government's purpose, although it need not be the least-restrictive alternative.(ConLaw-10-5)

The state opened a new supermax prison, which was the highest security prison in the state and was intended for the state's worst criminal offenders. This prison had severe conditions of confinement that went beyond the ordinary restrictions of prison life in other state prison facilities. Prisoners did not have any type of hearing before being assigned to the supermax prison. Prisoners in the supermax facility sued the government, arguing that the state's assignment policy violated the prisoners' due-process rights because the prisoners did not have any opportunity to be heard before being assigned. The government responded that it did not matter what procedures were used for the assignment because assigning the prisoners to a supermax prison did not deprive the prisoners of any protected liberty interest. Is it likely that the court will find that the assignment deprived the prisoners of a protected liberty interest? A. No, because, by definition, a prisoner has already been deprived of liberty and does not have any legal liberty interests left. B. No, because although a prisoner may still have some protected liberty interests, mere reassignment of prisoners from one detention center to another is unlikely to constitute a deprivation of those limited, remaining liberty interests. C. Yes, because prisoners likely have a liberty interest in avoiding additional restrictions that go above and beyond the ordinary restrictions of prison life. D. Yes, because prisoners have a liberty interest in having a fair hearing before being deprived of any rights.

C. For purposes of procedural due process, liberty interests include an interest against ongoing physical restraint. Moreover, it is not just the fact of restraint that can trigger a liberty interest, but the specific form of the restraint. For example, even though prisoners are already restrained to some degree, prisoners still have a liberty interest in avoiding additional restrictions and restraints that go above and beyond the ordinary restrictions of prison life. (ConLaw-7-20)

A militia, organized by a foreign country's government, attacked the United States' embassy in that country. The attack completely blindsided the United States' intelligence apparatus, and the militia overran the embassy, killing many Americans. In response, the president mobilized the armed forces to repel the militia from the embassy and retaliate against the foreign country. Congress did not formally declare war against the foreign country. However, Congress did pass a resolution authorizing the president and the armed forces to detain enemy combatants in the foreign country and to establish military tribunals operating outside the federal judicial system, which the president and the armed forces immediately started doing. Which of these presidential acts, if any, was constitutional? A. Only deploying the armed forces in the foreign country without a congressional declaration of war. B. Only detaining enemy combatants and establishing military tribunals. Incorrect C. Deploying the armed forces in the foreign country without a congressional declaration of war, detaining enemy combatants, and establishing military tribunals. D. None of the presidential acts are constitutional.

C. it was constitutional for the president to deploy the armed forces in the foreign country to address the embassy attack. True, the United States Constitution vests in Congress alone the power to declare war. As commander in chief, the president may tactically deploy the armed forces without congressional approval, for instance, to defend the United States and address national-security emergencies. See Davi v. Laird, 318 F.Supp. 478 (W.D. Va. 1970) (noting that "[t]he power to commit American military forces under various sets of circumstances is shared by Congress and the Executive"). Thus, Congress's sole power to declare war does not restrict the president from deploying the armed forces unilaterally in appropriate circumstances. In this case, a full-scale, unanticipated attack on an American embassy seems to call for the president's unilateral deployment of American armed forces. Similarly, it was constitutional for the president to detain enemy combatants and to establish military tribunals operating outside the federal judicial system. As commander in chief, the president has power to do these things, at least with congressional authorization (ConLaw-3-7)

The State School Athletic Association was a non-profit, private-membership corporation. This non-profit corporation regulated interscholastic sports among public and private high schools in the state that were members of the association. Although schools were not forced to join, there were no other regulatory authorities for interscholastic sports in the state. Accordingly, almost all the state's public schools and many of its private schools were members of the association. The state board of education even recognized the association as the primary regulatory agency in the state for high school sports. The association's voting membership was almost exclusively made up of public-high-school administrators. The association brought an enforcement proceeding against a private-member school for improperly recruiting students. The school argued that the association was a state actor and that the association's enforcement action violated its Fourteenth Amendment rights. Is it likely that the association's enforcement action was a state action (and, therefore, subject to the Fourteenth Amendment)? A. No, because the association was a non-profit, private-membership corporation. B. No, because public schools were not required to join the association. C. Yes, because the association's rules also affected state actors. Incorrect D. Yes, because the association was very entwined with the state.

D. Determining whether the specific circumstances make a private actor's conduct into state action is typically a fact-specific inquiry. However some examples of situations in which a private actor's challenged activity may be considered state action are: (1) the activity results from the state's exercise of coercive power, (2) the state either overtly or covertly provides significant encouragement to the private actor, or (3) the private actor willfully participates in a joint activity with the state or its agents. For the third situation, the courts will look at the totality of the circumstances to determine whether the private actor is so entwined with the state that the private actor's conduct should be subject to the same legal constraints as if the government itself had acted. (ConLaw-7-7)

A man stole a gun, robbed several places, and killed three people. The state charged the man with multiple offenses, including three counts of first-degree murder. Before the man's trial began, the man's lawyer moved for a competency hearing. Under state law, a person could not participate in criminal proceedings against him or her if he or she was mentally incompetent. The state statute defining mental incompetence stated that the defendant was presumed competent, and that the party claiming incompetence bore the burden of proving incompetence by a preponderance of the evidence. The trial court granted the man's motion for a competency hearing, and the jury heard conflicting expert testimony regarding the man's mental state. The jury ultimately found the man competent to stand trial. The man was convicted of all three murder charges and sentenced to death. On appeal, the man argued that making him bear the burden of proof in the competency hearing violated his due-process rights provided in the Fourteenth Amendment to the United States Constitution. Which of the following most accurately describes the test that the court will likely use to evaluate whether the state's competency procedure violated the man's constitutional due-process rights? A. Whether balancing the man's private interest against the government's interest shows that the contested competency procedure was fair. Incorrect B. Whether balancing the risk of an erroneous deprivation of the man's rights against the government's interest shows that the contested competency procedure was fair. C. Whether balancing the man's private interest, the risk of an erroneous deprivation of the man's rights, and the government's interest shows that the contested competency procedure was fair. D. Whether the contested competency procedure contravened one of the man's fundamental rights.

D. However, in the context of non-military criminal prosecutions, the U.S. Supreme Court has embraced greater deference to legislative judgments. For example, a different, narrower framework applies to evaluate whether a state's criminal-procedure rule violates an individual's due-process rights. Specifically, a state's criminal-procedure rule will violate the Fourteenth Amendment's Due Process Clause only if the rule contravenes a fundamental right. See Medina v. California, 505 U.S. 437 (1992). Here, because the state statute involves criminal procedure, the statutory procedure violated the man's constitutional due-process rights only if it contravened one of the man's fundamental rights.(ConLaw-7-16)

A state law prohibited accountants from in-person, uninvited solicitation of clients but permitted solicitation through mail and advertisements. A licensed accountant in the state sought to increase his business by going door-to-door to local businesses, handing out his business card, and explaining the services he could offer. He sued to invalidate the law, arguing that it was an unconstitutional infringement on his right to commercial speech. The state defended the law by arguing that the solicitation ban was necessary because accountants were supposed to serve as independent auditors and attestors of a business's financial statements. The state further argued that accountants who solicit are in need of business and therefore might be more willing to commit fraud on behalf of their clients. However, the government presented no evidence that accountants who engaged in in-person solicitation were more likely to engage in fraudulent accounting practices than those who solicited business through other methods. Is the court likely to find that the solicitation prohibition is unconstitutional? A. No, because commercial speech that is suggestive of illegal activities is unprotected. B. No, because the law serves a legitimate government interest unrelated to the content of the message. C. Yes, because the government may not draw distinctions based upon the method of communication. D. Yes, because the law does not directly advance the government's proffered interest.

D. Regulations on commercial speech are subject to a four-part test. Central Hudson Gas and Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). First, the advertising must not be false, deceptive, or suggestive of illegal activities, all of which involve unprotected speech. Second, the government's restriction must be justified by a substantial government interest. Third, the law must directly advance the government's proffered interest. Fourth, the regulation of speech must be no more extensive than necessary to achieve the government's interest. This standard most closely resembles intermediate scrutiny, although the fourth factor has some resemblance with strict scrutiny. The government seeks to prohibit in-person solicitation by accountants. It justifies the restriction as a way to prevent fraudulent accounting practices but presents no evidence that the law achieves this goal in any way. (ConLaw-10-7)

Congress passed the Immigrant Students Act, which banned discrimination against immigrants from foreign countries. The act required the Department of Health, Education, and Welfare (an executive-branch department) to enforce the act with respect to schools. The act gave the department specific tools to use to enforce the act: (1) terminating federal financial assistance to noncompliant schools or (2) taking any other means authorized by law, provided that the department had given the noncompliant school an opportunity to voluntarily come into compliance. Certain students sued the department, alleging that the department was not terminating federal financial assistance to noncompliant schools or taking any other means authorized by law to ensure compliance with the act. Specifically, the students alleged that the department had opted to merely encourage voluntary compliance without any threat of a penalty. The department claimed that its enforcement of the act was a matter of executive-branch discretion. Did the department have the discretion to rely on voluntary compliance instead of using the act's enforcement measures? A. Yes, because administrative agencies have complete, independent discretion over to how to implement and enforce statutes. B. Yes, because administrative agencies are under the exclusive control of the president of the United States, and the president has complete discretion over how to implement and enforce statutes. C. No, because Congress has complete discretion over how to implement and enforce statutes. D. No, because the act had an express enforcement mandate.

D. The Take Care Clause in Article II of the United States Constitution gives the executive branch the power to take care that the laws be faithfully executed. Generally, this means that the executive branch has broad discretion over how to implement and enforce federal statutes. See, e.g., United States v. Cox, 342 F.2d 167 (5th Cir. 1965) (enbanc). However, if Congress expressly includes an enforcement mandate within a federal statute, then an executive-branch agency must adhere to the statute's congressionally mandated enforcement measures. (ConLaw-3-6)

The United States Constitution established qualifications for membership in the United States Congress based on age, citizenship, and residence requirements. However, the U.S. Constitution contained no term limits for members of the United States House of Representatives. Further, there was no federal statute that set term limits for members of Congress. A state legislature passed an amendment to the state's own constitution that prohibited candidates for the state's seats in the U.S. House of Representatives from serving more than three terms. A woman sued the state on the grounds that the amendment to the state's own constitution violated the U.S. Constitution. May a state add its own requirements to the criteria for congressional leadership from the state? A. Yes, because state representatives serve at the behest of the state's citizens. B. Yes, because the U.S. Constitution lists only minimum requirements for being a member of Congress, not the maximum. C. No, because additional criteria violate the rights of congressional candidates under the Privileges and Immunities Clause in the U.S. Constitution. D. No, because list of requirements in the U.S. Constitution for being a member of Congress is complete and may not be changed or expanded.

D. The U.S. Constitution sets out the qualifications for members of Congress in the Qualifications Clauses of Article I. The United States Supreme Court has interpreted the constitutional structure to mean that this list was intended to be complete and protected from any outside interference or changes. Specifically, to prevent the states from having the power to undermine the federal government by making changes to who may serve as a member of the federal government, the U.S. Constitution's structure impliedly prohibits states from interfering with federal elections by changing these criteria or otherwise. (ConLaw-5-15)

A new terrorist organization carried out a series of attacks on U.S. embassies, military bases, and other overseas facilities. Federal law provided that such attacks were crimes that should be tried in civilian courts and that the president did not have authority to convene military commissions. However, the president believed that the criminal laws and the federal courts were inadequate to handle the threats posed by the terrorist organization and issued an executive order directing that apprehended terrorists be tried in military commissions pursuant to the laws of war. Does the president have constitutional authority to convene military commissions despite congressional disapproval? A. Yes, as commander in chief of the armed forces, the president has plenary authority to convene military commissions. B. Yes, because the Constitution grants the president the power to appoint judges. C. Yes, because a more recent executive order prevails over an older conflicting law. Incorrect D. No, the president does not have authority to order military commissions that Congress has explicitly prohibited.

D. The president does not have the authority to establish military commissions if Congress has, using its own proper authority, specifically prevented the president from doing so. (ConLaw-3-11)

Congress enacted a federal act that established the Legal Services Corporation (LSC) as a District of Columbia nonprofit corporation. The LSC was tasked with distributing certain federal-grant funds to eligible local organizations for the purpose of providing legal assistance in non-criminal matters to people who could not otherwise afford legal assistance. The LSC grantees were hundreds of local organizations that were typically governed by local boards of directors. The grantee organizations hired and supervised lawyers to provide free legal services to indigent clients. Some of the grantee organizations used the LSC funds to assist in the representation of indigent clients seeking welfare benefits. However, a year later, Congress passed a new federal law prohibiting LSC funding of any organization that represented clients in any effort to amend or otherwise challenge existing welfare laws. The LSC filed a lawsuit in federal district court seeking a declaration that the new law restriction requiring recipients to give up certain speech rights in exchange for funding was invalid as a violation of the United States Constitution. Is it likely that the funding restriction in the new law is constitutionally valid? AYes, because Congress has the authority to spend federal funds as broadly or narrowly as it deems appropriate. Incorrect 18.66% of students answered A BYes, but only because the restriction was rational and served a legitimate public purpose. Incorrect 14.38% of students answered B CNo, because the restriction impairs the private contracts between the lawyers and the indigent clients. Incorrect 13.72% of students answered C DNo, because the restriction impairs First Amendment speech rights and, therefore, is an unconstitutional condition.

D. Under the doctrine of unconstitutional conditions, it is unconstitutional for the government to condition the receipt of government funds or other assistance on the recipient's refusal to exercise constitutional rights. See Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001). The theory behind the doctrine is that the government cannot use indirect means to achieve a result that it could not constitutionally compel directly. See, e.g., Speiser v. Randall, 357 U.S. 513 (1958). Here, the restriction in the new act limits the First Amendment's right to free speech by prohibiting LSC-funded lawyers from engaging in representation related to welfare benefits. This means that the new act is conditioning the organizations' receipt of federal funds on the recipients' refusal to exercise the constitutional right of free speech. The government could not directly prevent the organizations from exercising this free-speech right, and the government may not indirectly achieve the same goal through the restrictive funding condition in the new act. Rather, because the restriction was an unconstitutional condition, the new law was not constitutionally valid.(ConLaw-9-12)

A state law provided that any individual who had been convicted of a felony offense was permanently ineligible to vote. This law disproportionately affected black residents, who were statistically twice as likely to have felony convictions as white residents. A black individual who had been convicted of a felony sued the state, claiming that the law violated the Equal Protection Clause by denying him the right to vote. What standard of review will a court use to evaluate the claim? A. Strict scrutiny, because voting is a fundamental right. B. Strict scrutiny, because the law disproportionately harms a suspect class. C. CIntermediate scrutiny, because the law is facially neutral but disproportionately harms a suspect class. D. Rational basis, because the law relates to voter qualifications.

D. Voting is a fundamental right, and, generally, laws impacting the fundamental right to vote are evaluated using strict scrutiny. However, not all laws relating to voting are subject to strict scrutiny. Laws that determine whether an individual is qualified to vote, like voter-identification laws and felon-disenfranchisement laws, are evaluated using rational-basis review. See Anderson v. Celebrezze, 460 U.S. 780, 788 (1983) ("[T]he state's important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions."). Here, the law at issue is a voter-qualification law, specifically about whether convicted felons are qualified to vote. Thus, even though this is a law about the right to vote, this voter-qualification law will be evaluated using rational-basis review.(ConLaw-8-13)