Ch_04_Constitutional_Bases_for_Business_Regulation

A federal law that conflicts with a state law is preempted by the state law.

False

In CASE 4.1 Washington v. Trump (2012), the Ninth Circuit Court of Appeals overturned a temporary restraining order against an executive order that banned Syrian refugees from entering the United States.

False

In the case Clinton v. City of New York referenced in the text, the U.S. Supreme Court dealt with the question of the Supremacy Clause of the United States Constitution.

False

In the case United States v. Lopez, the U.S. Supreme Court upheld the Gun-Free School Zones Act, which banned guns near schools as a regulation of an activity that substantially affects interstate commerce.

False

Members of the U.S. Supreme Court are appointed by Congress with the advice and consent of the President.

False

No provision in the Bill of Rights has been held to limit the actions of state governments because the Bill of Rights only applies to federal government actions.

False

Obscene material is protected speech under the First Amendment.

False

Procedural due process focuses on the fundamental rights protected by the Due Process clauses.

False

Racist speech is protected by the First Amendment of the U.S. Constitution, similar to the protections in most European countries.

False

The Equal Protection Clause of the Fourteenth Amendment limits the power of the federal government to regulate commerce.

False

The Free Exercise Clause prohibits all restrictions on the practice of religion, except in the workplace context.

False

Under some circumstances a law passed by Congress may be valid even if it violates the U.S. Constitution.

False

When a governmental action affects a person's life, liberty, or property, due process requires only a fair hearing

False

The executive privilege fails to protect the president during his or her term of office from civil litigation over events that occurred before he or she took office.

True

The famous case of Marbury v. Madison (1803) gave federal courts the power to review acts of the other two branches of the federal government to determine the existence of constitutional violations.

True

Beginning with National Labor Relations Board v. Jones & Laughlin Steel Corp. (1937), virtually all federal regulation of commerce was upheld under the Commerce Clause.

True

In 2013, the Senate curtailed the power of the filibuster to delay votes on executive and judicial nominees.

True

In the case Clinton v. City of New York referenced in the text, the U.S. Supreme Court struck down as unconstitutional the line-item veto given to the President by Congress.

True

Over time, the U.S. Supreme Court has changed its view of the scope of the Commerce Clause.

True

The Fifth Amendment contains the "due process" restriction on actions by the federal government.

True

The U.S. Supreme Court has original jurisdiction over cases affecting ambassadors and cases in which a state is a party.

True

The doctrine of federalism serves to allocate power between the federal government and government by the states.

True

Mirren is a legal secretary for Averil, a partner in a large law firm in Knoxville. Averil finds Mirren quite annoying. The last straw occurs when Mirren tells Averil that Averil looks pale and appears to have been partying a bit too hard. Averil fires Mirren on the spot. Mirren tells Averil that, based on constitutional law, Averil is guilty of violating not only Mirren's due process rights but equal protection rights as well. Mirren claims to be entitled to a hearing before any disciplinary action is taken, and that the firm's practice is that all secretaries are entitled to tell attorneys when they do not appear to be functioning at their best. Mirren is filing suit tomorrow. Refer to Fact Pattern 4-1. Which of the following is true regarding Mirren's ability to win on a claim alleging violation of the equal protection clause of the Fourteenth Amendment to the U.S. Constitution? a. Mirren will lose because no statute or other action involving the government was involved. b. Mirren will lose only if other secretaries have been fired under similar circumstances. c. Whether Mirren will lose or win depends on whether the judge decides to apply a strict scrutiny test to Mirren's claims. d. Whether Mirren will lose or win depends on whether the judge decides to apply a rational basis test to Mirren's claims.

a. Mirren will lose because no statute or other action involving the government was involved.

The __________ Clause of the U.S. Constitution states that the Constitution, laws, and treaties of the United States take precedence over state laws and that the judges of the state courts must follow federal law. a. Supremacy b. Federalization c. Legalism d. Preemption

a. Supremacy

Wallace, a law school student, is an intern for Regan, an assistant professor who is attempting to get tenure at Imperial Law School in part by getting an article published on the right to a jury trial. Regan asks Wallace to explain the right to a jury trial under the U.S. Constitution as applied to jury trials involving state law. Refer to Fact Pattern 4-2. Does the U.S. Constitution require that jury trials be held in state court civil cases? a. There is no federal constitutional requirement that jury trials be held in state court civil cases. b. The federal Constitution requires that jury trials be held in state court civil cases only if the controversy involved exceeds the amount of $75,000. c. The federal constitution requires that jury trials be held in state court civil cases only if the controversy involved exceeds the amount of $20. d. In all state court civil cases, the federal Constitution gives any party the right to demand a jury trial.

a. There is no federal constitutional requirement that jury trials be held in state court civil cases.

As the owner of a restaurant seating 150 people, Peyton learns of a newly enacted city regulation that requires restaurants that seat more than 100 people be inspected by the health department on a monthly basis whereas smaller restaurants would only be inspected twice per year. Peyton also learned that Frankie, the local mayor, was able to get passed a law requiring that restaurants owned by graduates of culinary schools pay a higher fee to receive a business license than those without culinary degrees. Peyton is angry about both laws and wants to take action to have them struck down. Refer to Fact Pattern 4-3. Under the Equal Protection clause, which of the following would be the city's best argument that the law pertaining to more frequent inspections of larger restaurants should be upheld? a. Under the rational basis test, inspections by the health department are needed in order to guard against food-borne illnesses. b. Under the strict scrutiny test, larger restaurants are important to the tax basis of the community and should, therefore, be inspected more often to guard against illness and resulting lawsuits that could impact the ability of the restaurants to remain in business. c. Under the substantially related test, owners of larger restaurants should expect to be inspected more often because products used in interstate commerce are invariably involved. d. Under the common good test, large restaurants should be inspected more often in order to protect the community's tax base.

a. Under the rational basis test, inspections by the health department are needed in order to guard against food-borne illnesses.

In order to hold a media defendant liable for statements made about a public figure, the plaintiff must show the media defendant acted with a. actual malice. b. negligence. c. only inaccuracy. d. intent to inflict monetary harm.

a. actual malice.

Even when Congress has taken no action in regard to a matter, the ______ Commerce Clause may impose restrictions on state action. a. dormant or negative b. dormant or positive c. relative or positive d. relative or negative

a. dormant or negative

Under the Seventh Amendment, in a suit at common law, __________. a. legal rights are to be ascertained and monetary damages awarded b. the suit involves only equitable rights and remedies c. injunctions are the main remedy d. proceedings do not include a jury

a. legal rights are to be ascertained and monetary damages awarded

The general power retained by the states to protect the health, safety, welfare, and morals of state residents is often referred to as ____ power. a. police b. regulatory c. protective d. community

a. police

The Bill of Rights consists of: a. the first ten amendments to the U.S. Constitution. b. the first five amendments to the U.S. Constitution. c. all amendments to the U.S. Constitution. d. all amendments to the U.S. Constitution after the first ten amendments were passed.

a. the first ten amendments to the U.S. Constitution.

In CASE 4.4, Fisher v. University of Texas at Austin (2016), the U.S. Supreme Court held that a. when race is involved, a university admission test must be analyzed under the Fourteenth Amendment's Equal Protection clauses using a strict scrutiny test. b. when gender is involved, a university admission test must be analyzed under the Fourteenth Amendment's Equal Protection clause using a rational basis test. c. a university admission test must be analyzed under the Fifth Amendment's rational basis test. d. when gender is involved, a university admission test must be analyzed under the Fourteenth Amendment's Equal Protection clause using the substantially-related test.

a. when race is involved, a university admission test must be analyzed under the Fourteenth Amendment's Equal Protection clauses using a strict scrutiny test.

In what year did the U.S. Constitution become effective? a. 1776 b. 1789 c. 1774 d. 1790

b. 1789

Within the ruling of _____, which found that Connecticut's law against preventing conception was unconstitutional, the Supreme Court discussed the "penumbra" of rights surrounding each guarantee in the Bill of Rights. a. Roe v. Wade b. Griswold v. Connecticut c. Planned Parenthood v. Casey d. Gonzalez v. Carhart

b. Griswold v. Connecticut

To make way for a new freeway around the city, the state and federal governments purchased private lands at a fair price because of their right to _____ under the _____Amendment. a. eminent domain; Fourth b. eminent domain; Fifth c. expropriate property; Sixth d. rezone land; Third

b. eminent domain; Fifth

The president has the power to make treaties with the advice and consent of: a. the House of Representatives. b. the Senate. c. both the House of Representatives and the Senate. d. either the House of Representatives or the Senate.

b. the Senate.

Congress can override a president's veto by a _____ vote of both the House of Representatives and the Senate. a. majority b. two-thirds c. three-quarters d. unanimous

b. two-thirds

______ gives the president a type of legal immunity that protects against the forced disclosure of presidential communications made in the exercise of executive power. a. Immunity privilege b. Federal privilege c. Executive privilege d. Mandated privilege

c. Executive privilege

In the __________ case, the U.S. Supreme Court upheld Title II of the Civil Rights Act of 1964 prohibiting discrimination or segregation on the grounds of race, color, religion, or national origin in any inn, hotel, motel, or other establishment of more than five rooms that provides lodging to transient guests. a. Gibbons v. Ogden b. Reno v. Condon c. Heart of Atlanta Motel, Inc. v. United States d. Sweet Dreams Hotel v. United States and State Department

c. Heart of Atlanta Motel, Inc. v. United States

The Fifth Amendment does NOT contain which of the following? a. Self-incrimination provision b. Grand jury requirement c. Jury trial requirement d. Double jeopardy prohibition

c. Jury trial requirement

Wallace, a law school student, is an intern for Regan, an assistant professor who is attempting to get tenure at Imperial Law School in part by getting an article published on the right to a jury trial. Regan asks Wallace to explain the right to a jury trial under the U.S. Constitution as applied to jury trials involving state law. Refer to Fact Pattern 4-2. Which of the following sections of the U.S. Constitution should Wallace reference when discussing the matter of the right to a jury trial with Regan? a. The First Amendment b. The Fifth Amendment c. The Seventh Amendment d. Article One, Section Eight

c. The Seventh Amendment

Which of the following is NOT one of the three branches of government? a. The legislative branch b. The judicial branch c. The administrative branch d. The executive branch

c. The administrative branch

In the case Junger v. Daley, a professor challenged regulations involving the posting to a website of human readable source code of an encryption software program. The court held that: a. computer source code is not protected by the First Amendment. b. computer source code is protected by the First Amendment and that restrictions to such code are reviewed under a rational basis standard. c. computer source code is protected by the First Amendment and that restrictions to such code are reviewed under the substantially related test. d. computer source code is protected by the First Amendment and that restrictions to such code are reviewed under a strict scrutiny standard.

c. computer source code is protected by the First Amendment and that restrictions to such code are reviewed under the substantially related test.

Because of the __________ provision of the U.S. Constitution, a person cannot be tried twice for the same crime. a. ex post facto b. bill of attainder c. double jeopardy d. privileges and immunities

c. double jeopardy

Laws that punish actions that were not illegal when performed are known as: a. bills of attainder. b. proscriptive laws. c. ex post facto laws. d. criminal laws.

c. ex post facto laws

Preemption of state law when it directly conflicts with federal law is known as _____ preemption, whereas preemption of state law when Congress has manifested intent to regulate an entire area without state participation is known as _____ preemption. a. absolute; implied b. express; absolute c. express; field d. absolute; field

c. express; field

In contrast to the federal government, state governments have general powers not specified in the Constitution. These general powers are often referred to as __________ that protect the health, safety, and welfare of the people. a. habeas corpus powers b. subpoena powers c. police powers d. criminal indictment powers

c. police powers

The division of power among the executive, legislative and judicial branches of government is typically referred to as a. federalism. b. judicial review. c. separation of powers. d. the Supremacy clause.

c. separation of powers.

When equal protection is concerned, classifications based on gender are subject to the _____ test. a. rational basis b. strict scrutiny c. substantially related d. gender-based

c. substantially related

In United States v. Windsor (2013), the U.S. Supreme Court addressed the question of a. whether the case should be analyzed using a strict scrutiny analysis. b. the constitutionality of a state statute denying state benefits to same-sex couples who were married in states where same-sex marriage is legal. c. the constitutionality of a federal statute denying federal benefits to same-sex couples who were married in states where same-sex marriage is legal. d. whether the case should be analyzed using a rational basis analysis.

c. the constitutionality of a federal statute denying federal benefits to same-sex couples who were married in states where same-sex marriage is legal.

Based on various Supreme Court rulings, provisions in the Bill of Rights fundamental to the "American scheme of justice" are applicable to the States via the ______ Amendment. a. Tenth b. Eleventh c. Thirteenth d. Fourteenth

d. Fourteenth

The _____ Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law." a. Seventh b. Tenth c. Eleventh d. Fourteenth

d. Fourteenth

Which of the following guarantees of individual rights is NOT contained in the original Constitution? a. Prohibition against bills of attainder b. Ban on ex post facto laws c. Contracts clause d. Freedom of speech

d. Freedom of speech

Mirren is a legal secretary for Averil, a partner in a large law firm in Knoxville. Averil finds Mirren quite annoying. The last straw occurs when Mirren tells Averil that Averil looks pale and appears to have been partying a bit too hard. Averil fires Mirren on the spot. Mirren tells Averil that, based on constitutional law, Averil is guilty of violating not only Mirren's due process rights but equal protection rights as well. Mirren claims to be entitled to a hearing before any disciplinary action is taken, and that the firm's practice is that all secretaries are entitled to tell attorneys when they do not appear to be functioning at their best. Mirren is filing suit tomorrow. Refer to Fact Pattern 4-1. Which of the following is true regarding Mirren's ability to win on a claim alleging violation of the due process clause of the U.S. Constitution? a. Mirren will win only by establishing that the law firm has at least one governmental client. b. Mirren will win by establishing that all other secretaries fired within at least the last year were given a hearing before termination. c. Mirren will win by establishing that at least one secretary fired within the last year was given a hearing before termination. d. Mirren will lose because no governmental action was involved.

d. Mirren will lose because no governmental action was involved.

Wallace, a law school student, is an intern for Regan, an assistant professor who is attempting to get tenure at Imperial Law School in part by getting an article published on the right to a jury trial. Regan asks Wallace to explain the right to a jury trial under the U.S. Constitution as applied to jury trials involving state law. Refer to Fact Pattern 4-2. What is the provision in the U.S. Constitution about jury trials being held in federal civil court cases involving diversity jurisdiction and applying state law (GTFM, LLC v. TKN Sales, Inc.)? a. The U.S. Constitution requires that a jury trial be held only if the controversy exceeds the amount of $75,000, and the parties involved are all residents of the same state. b. The U.S. Constitution requires that a jury trial be held in all such trials. c. The U.S. Constitution does not provide the right to a jury in such situations. d. The U.S. Constitution provides that when a federal court has jurisdiction in a case based solely on diversity of citizenship, the federal court should require a jury trial only if a state court in that state would require a jury trial.

d. The U.S. Constitution provides that when a federal court has jurisdiction in a case based solely on diversity of citizenship, the federal court should require a jury trial only if a state court in that state would require a jury trial.

As the owner of a restaurant seating 150 people, Peyton learns of a newly enacted city regulation that requires restaurants that seat more than 100 people be inspected by the health department on a monthly basis whereas smaller restaurants would only be inspected twice per year. Peyton also learned that Frankie, the local mayor, was able to get passed a law requiring that restaurants owned by graduates of culinary schools pay a higher fee to receive a business license than those without culinary degrees. Peyton is angry about both laws and wants to take action to have them struck down. Refer to Fact Pattern 4-3. Under the Equal Protection clause, which of the following is the city's best argument that the law imposing a higher fee on restaurant owners with culinary degrees should be upheld? a. Under the rational basis test, restaurant owners with culinary degrees should pay higher taxes as long as it can be shown that they have a higher rate of business success. b. Under the intermediate level test, distinctions involving education are examined in the same way as distinctions based on guarantees in the Bill of Rights, and that the Bill of Rights allows education-based classifications. c. Under the strict scrutiny test, education level is a legitimate method by which to delineate differences between categories of citizens. d. The city does not have a good argument because there is no justification for the distinction under the substantially related test.

d. The city does not have a good argument because there is no justification for the distinction under the substantially related test.

CASE 4.3 Brown v. Entertainment Merchants Association (2011) involved the issue of whether a California statute could prohibit the sale or rental of graphically violent video games to minors. What was the ruling of the U.S. Supreme Court? a. The law was valid because the video games did not qualify for First Amendment protection. b. The law was valid because minors are not entitled to First Amendment protection. c. The law was invalid because the state could not establish a rational basis for it. d. The law was invalid because the state could not satisfy the strict scrutiny test applied.

d. The law was invalid because the state could not satisfy the strict scrutiny test applied.

The ______ test is applied to determine whether speech is protected by the First Amendment to the U.S. Constitution. a. incitement of violence b. Brandenburg c. espionage and sedition d. clear and present danger

d. clear and present danger

The central Fourth Amendment question in the case of Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, which involved drug testing of student athletes, was answered as follows: a. individualized suspicion is a consideration in determining whether a search is reasonable and the searches at issue were, therefore, unconstitutional. b. the searches were unconstitutional because of the nature of privacy. c. the searches were constitutional because minors were involved and individual suspicion was present. d. individualized suspicion is not always required and the searches in the case were constitutional.

d. individualized suspicion is not always required and the searches in the case were constitutional.

In the case United States v. Morrison referenced in the text, the U.S. Supreme Court held that the Violent Crimes Against Women Act was a. validly enacted under the authority of the due process clause of the U.S. Constitution. b. validly enacted under the authority of the equal protection clause of the U.S. Constitution. c. not valid because it discriminated against men. d. invalid because Congress exceeded its authority under the Commerce Clause of the U.S. Constitution.

d. invalid because Congress exceeded its authority under the Commerce Clause of the U.S. Constitution.

In CASE 4.2 the Citizens United v. Federal Election Commission regarding the constitutionality of corporate political expenditures, the U.S. Supreme Court a. upheld federal laws banning corporate independent expenditures on political candidates and also upheld the federal prohibition on the use of corporate treasury funds for electioneering communications or express advocacy. b. upheld federal laws banning corporate independent expenditures on political candidates but struck as unconstitutional the federal prohibition on the use of corporate treasury funds for electioneering communications or express advocacy. c. struck down as unconstitutional federal law banning corporate independent expenditures on political candidates but upheld the federal prohibition on the use of corporate treasury funds for electioneering communications or express advocacy. d. struck down as unconstitutional federal law banning corporate independent expenditures on political candidates and also struck down as unconstitutional the federal prohibition on the use of corporate treasury funds for electioneering communications or express advocacy.

d. struck down as unconstitutional federal law banning corporate independent expenditures on political candidates and also struck down as unconstitutional the federal prohibition on the use of corporate treasury funds for electioneering communications or express advocacy.

In deciding the case, Citizens United v. Federal Election Commission, in which the constitutionality of the federal law providing that televised electioneering communications funded by anyone other than a candidate must include a disclaimer setting forth identifying information as to sponsorship, the Supreme Court ruled that: a. the law was unconstitutional only if a corporate entity, not an individual, sponsored the communication. b. the law was unconstitutional only if an individual, not a corporate entity, sponsored the communication. c. the law was unconstitutional in that it involved small expenditures as well as larger ones. d. the law was constitutional.

d. the law was constitutional.