Constitutional Law Multiple Choice

Which of the following are the two major factors the Court uses in determining if a certain issue is a non-justiciable political question?

(1) The textual constitutional commitment of the issue to a political branch (2) The lack of judicially discoverable and manageable standards.

What two factors does ripeness (for review) depend on?

(1) Whether the issue is fit for judicial decision and (2) the hardship to the parties of withholding consideration (And the party must have already suffered harm, or be facing or threatened with specific harm).

For a party to have standing to sue in federal court, the Constitution require that the party be able to show it satisfies the following elements:

(1) injury-in-fact (2) injury must be fairly traceable to the defendant (3) the injury must be redressable by the court

Which of the following does the Court in Lopez suggest might have allowed Congress to regulate the gun Lopez was carrying?

A jurisdiction nexus in the law, limiting its application only to those instances of gun possession that could be linked (by the federal government in prosecuting an individual) to interstate commerce - for example, by showing that the gun was moving in interstate commerce.

Which of the following best describes how the concept of a state's "quasi-sovereign interests" modifies the standing analysis in the view of the Court in Massachusetts v. EPA?

A state can satisfy the injury-in-fact requirements by showing evidence of harms - such as harms to the state's quasi-sovereign interest in protecting its air or water quality - even though such harms would likely not be particularized enough to let an individual citizen satisfy the injury-in-fact requirement on the grounds that citizen is hurt by polluted air.

Which of the following provides the best summary of why the Supreme Court majority in US Term Limits v. Thornton decided that a state may not impose term limits on its congressional representatives (to the House or the Senate)?

A state may not impose term limits because the qualifications for representatives in Article I should be read as exclusive, and although the 10th amendment reserves power for the states, the states cannot be deemed to have preserved power that they didn't have before the Constitution. States can only have this power over a national legislature if the Constitution delegates it to them.

Congress would like to encourage NY state to dispose of its own radioactive waste within NY's own borders. Which of the following measures may it take to accomplish this end?

Authorize other states which currently receive and store NY's radioactive waste, such as NV, SC, and WA, to begin refusing that waste after certain amount of time, leaving NY to find its own storage for the waste (most likely, within its own borders).

Why, according to Justice Scalia's argument in his Raich concurring opinion, does the federal government have power under the Commerce Clause and necessary and proper clause to criminalize even simple possession of marijuana?

Because Congress undoubtedly has the power to regulate interstate trafficking of marijuana and regulating of simple possession (even though it is non-economic activity) is a necessary part of that larger federal regulatory scheme.

Which of the following best explains why commandeering would undermine political accountability according to Justice O'Connor and Justice Scalia (in their NY v. US and Printz v. US decisions)?

Because although the federal government is the one imposing the policy, citizens would see state governments enacting it legislatively or state officials carrying it out, and thus may blame the state for what the federal government has required.

Which of the following is the best explanation for why some Justices (such as Justice Kennedy and Justice Scalia, and later Chief Justice Roberts) could argue that the federal government did have the power to regulate local growth of medicinal marijuana under the Commerce Clause but did not have power under the Commerce Clause to enact an individual mandate requiring individuals to purchase health insurance?

Because, while growing medical marijuana for personal use may be a small-scale local activity, it constitutes activity that the government may regulate as part of regulating the interstate market in marijuana. By contrast, failing to purchase health insurance is not activity at all, let alone economic or commercial activity.

In Gibbons v. Ogden, Congress established a law allowing individuals to obtain licenses to operate ferries between states (such as New York and New Jersey). Which of the following summarizes the Court's holding regarding whether Congress could do this under Commerce Clause?

Congress has power to regulate movement of boats between New York and New Jersey because Congress's power to regulate commercial intercourse between states (and people of different) includes the power to regulate the navigation that is a part of that. The only commercial activity which is beyond Congress's power is activity internal to a state that does not extend to or affect other states.

Which of the following best provides a short summary of the black letter law on when Congress can deprive the Supreme Court of appellate jurisdiction to hear a case on a federal question?

Congress has power to remove jurisdiction under its power to make exceptions to the Court's appellate jurisdiction. The extent of that power is uncertain but Congress may not exercise it in such a way that it imposes a rule of decision on the Court, or deprives its judgements of finality.

Which of the following best states the test - proposed by Justice Breyer in his Lopez dissent - for when Congress may regulate an activity on the ground that it substantially affects interstate commerce?

Congress may do so whenever it has a rational basis for finding that the regulated activity has a substantial effect on interstate commerce.

To control grain prices, the federal government imposes a quota (300 bushels) on how much grain any farmer can grow. Farmer Jones grows 350 bushels on his farm in Illinois. He sells 300 of these bushels - 200 for shipment to Wisconsin and Indiana, and 100 to food companies who will use the grain with Illinois. He then uses the extra 50 bushels of grain for his family's own use (and to feed some of the animals on his farm). May Congress regulate Farmer Jones's growing of wheat? Does Congress have the power to impose a penalty on Jones for exceeding his quota?

Congress may regulate all of Farmer Jones's growing of grain, since even the growing and sale of it within Illinois has interstate effects - and may also penalize him for exceeding his quota by 50 bushels since even the grain he doesn't sell has effects on the demand for, and price of, grain.

Which of the following summarizes the "aggregation principle" in Commerce Clause jurisprudence?

Even if a single instance of a particular kind of economic activity would not have a substantial effect in interstate commerce if the aggregation of different instances of that activity would have substantial effect on interstate commerce, Congress has owe to regulate it.

Which of the following best describes how the presence of a foreign affairs issue will affect the Court's application of the political question doctrine?

If the issue concerns foreign affairs, the Court will be more likely to view it as a non-justiciable political question because such issues are frequently reserved by the Constitution for the Executive or the Legislature, often require policy-based judgment calls not easily subject to judicial principles, and often require decisive and unified action.

What was Chief Justice Marshall's conclusion about the constitutionality of the US bank in McCulloch v. Maryland?

It is constitutional because although the Constitution does not give Congress the power to establish a bank, the Necessary and Proper Clause allows it to do so as a means of borrowing and spending money, and exercising other enumerated powers that require financial resources.

How does the majority opinion in Gonzales v. Raich define economic?

It means producing, distributing, or consuming commodities.

What are the two things that the Supreme Court - in Lujan - said must be true for an alleged harm to amount to an injury-in-fact?

It must be: (i) concrete and particularized (ii) actual or imminent

1. Congress passes a law that is not clearly within the power expressly granted to it by the Constitution: it passes a law requiring individuals to purchase health insurance and it grants that passing such a law is not among the powers expressly given to it by Article I, Section 8. However, it argues, doing so it constitutional because such a health insurance mandate is a necessary and proper measure for Congress to effectively regulate interstate commerce (and more specifically, the national market in health insurance). According to NFIB v. Sebelius, which of the following must be true of the law mandating that individuals purchase insurance in order for it to count as proper under the Necessary and Proper Clause?

It must entail the exercise of a power incidental to an enumerated power, and not a great and substantive independent power beyond those specifically enumerated.

Congress regulates all use of week control chemicals in growing of any plants. Plaintiff has a small private garden in her backyard in which she grows her own herbs, solely for her own use. She wishes to use weed control chemical in a way that's not legal under Congress's law. She acknowledges that Congress may regulate farmers or growers who use these chemicals when selling what they grow (and that, under Wickard v. Fillburn, it can even regulate the wheat or other farm product that they choose not to sell). But it argues that since she never sells anything from her garden (and produces very little in it), her activity has no connection to interstate commerce and may not be regulated. Which of the following provides a summary of a likely court response to this claim?

It will be rejected, and she will be subject to federal law - because her use of the product in herb growing for personal use is part of a larger class of activities that does substantially affect interstate commerce.

How does the Court determine if an issue is reserved by the text of the Constitution for the President of Congress?

It will deem is reserved for the other branches, and find t a non-justiciable political question, if after a close analysis of Constitution's text, the Court determines that the Constitution committed it to the political branches, whether by doing so expressly, omitting any textual basis for judicial review of the action taken by a political branch, or otherwise indicating judicial review has no role to play.

Which of the following does Justice O'Connor's concurrence in Printz suggest it may well be okay for federal government to require of state officials?

Measures which impose purely ministerial reporting requirements.

If a person sues a state for creating Congressional districts with unequal populations - claiming that the inequalities created by such districts violate the Equal Protection Clause of the 14th amendment - would the courts find this to raise a non-justiciable question?

No - because the Court has deciding that in contrast to cases on the clause guaranteeing states a republican form of government, cases that raise Equal Protection Claims about unequal voting power of individuals raise questions where there are well-developed and familiar judicial standards.

Imagine that Congress - in order to crack down on drug smuggling along Interstate Highway 35 - enacts a law requiring the state legislatures of states along that route to purchase and provide for installation and operation of, along Interstate 35, one of six types of surveillance equipment for locating and collecting information about vehicles suspected of transporting drugs. Would such a federal requirement be constitutional?

No, because although Congress may ask (or provide financial incentives for) state governments to assist in carrying out federal policy, it may not command state legislatures or state officials to carry out such policy.

Congress enacts a law creating a civil cause of action against a person whom commits a crime of violence motivated by gender. It claims it has power to do so under the Commerce Clause because such violent crimes discourage people from engaging in business across state lines, increase medical costs, and decrease supply and demand for certain products through their effects on victims. Will the court likely find that Congress may do this under its Commerce Clause power?

No, because under its precedent in Lopez, the Court will probably both find that the regulated activity is non-economic and that Congress's argument is piling inference upon inference links it too tenuously to interstate commerce.

Imagine Congress enacts a law making it a federal crime to possess a knife in a local playground. When this law is challenged as beyond is Commerce Clause power, the federal government argues that the regulated activity (bringing a knife to a playground) substantially affects interstate commerce because it makes violent crime more likely, and this in turn discourages interstate travel, and the commercial activity tourists bring, to places where such crime occurs. Will this argument suffice to show that the activity affects interstate commerce?

No, because while these economic effects of knife violence may well exist in some form, this intrastate activity is not an economic activity and the federal government's argument would give it a general police power over virtually all intrastate action.

May a state regulate the federal government and its instrumentalities?

No. A state may not directly regulate or discriminate against the federal government, but where the federal government has not spoken, it is permitted to enact general rules that incidentally affects federal government operations.

May a state impose a tax on a federal bank (under the holding of McCulloch v. Maryland)? Why or why not?

No. Giving a state the power to tax the federal government's operations would undermine the Constitution's design by giving states an impermissible level of control over the federal government and allowing a tax to be imposed on the US by an entity which the people of the US are not fully represented.

May a federal court provide advice about a legal question in response to questions that Congress or the President ask of it (outside the context of an existing dispute? For example, could Congress - in considering whether to enact the Affordable Care Act (also known as Obamacare) in 2009 or 2010 - have asked the Supreme Court's justices to provide them with an opinion about whether the law (if ultimately enacted) would be constitutional?

No. Neither the Supreme Court nor any other federal court can provide such advice because the Constitution bars courts from issuing advisory opinions.

After capturing an enemy combatant during the war in Afghanistan, the government detains that combatant under circumstances that an individual citizen - and taxpayer - believes are illegal under international law, and a US status incorporating those aspects of international law into domestic law. Does the taxpayer likely have standing to sue the government on grounds that the government is using her tax dollars to carry out the illegal detention?

No. The general rule is that a taxpayer's connection to such government action does not give her any more stake in the government's action than any other citizen-taxpayer and whatever injury exists is thus not sufficiently particularized to count as an injury-in-fact for purposes of standing.

Will Congressional findings linking a regulated activity to interstate commerce always be sufficient to establish that Congress has power to regulate that activity under the Commerce Clause?

No. While the absence of such findings may have been a problem in Lopez, the Court made clear in a subsequent case that findings in the legislation will not allow Congress to extend its Commerce Clause power to a non-economic activity it can connect to interstate commerce only with a extended chain of inferences.

The Senate tries an impeached judge - but it delegates to a special committee of Senators the responsibility to hear evidence (and then present the full Senate with a full transcript and a report). If the impeached judge challenges the Senate's procedure, on grounds that this committee hearing is not a trial by the full Senate, as required by the Constitution, what will the Court rule (assuming it follows existing precedent)?

That the question of what procedures are required by a Senate trial of an impeached official constitutes a non-justiciable political question in part because the Constitution gives the Senate the sole power of trying impeachments.

The Dole test requires the following of a spending condition attached to federal funds given to a state: (1) that it is in pursuit of the general welfare, (2) the condition is expressed unambiguously (so states can take account of it in considering whether to accept the funds, (3) it does not violate an "independent constitutional bar" and (4) it is not coercive. What is the one additional requirement that a federal spending condition must satisfy in order to be constitutional?

That the spending condition be germane to the purpose for which the funds will be used, not something that requires a state to take measures unrelated to the purpose of spending.

Which of the following reasons does Chief Justice Roberts give for finding that - when the Affordable Care Act requires individuals to pay money if they do not obtain health insurance - this payment for not having health insurance is a TAX and not a PENALTY?

The ACA does not attach any negative legal consequences to going without health insurance, other than paying money to the IRS. The test for whether a required payment is a tax or a penalty is a functional test, focused on what the law does rather than the language it uses, and this payment functions like a tax.

Which of the following is true about the Supreme Court's power to review and reverse a state court decision that discusses, in a dicta, the meaning of a federal constitutional provision such as the First Amendment of the US Constitution?

The US Supreme Court may do so under any circumstances where federal law is discussed, even if such discussing is purely dicta rather than the state court's holding, because even dicta may be relied upon by other courts and it is the highest federal court (the Supreme Court), not the state court, that is the ultimate authority on questions of federal law.

Which of the following best explains how the court applies the requirement that there be no "independent constitutional bar" to a funding condition which the federal government attaches to the funds it offers to a state?

The funding condition may not induce the states to take actions that would violate the US Constitution, such as violating individuals' First Amendment rights.

Imagine Congress passes a law that is not clearly within the powers expressly granted to it by the Constitution: it passes a law requiring individuals to purchase health insurance and it grants (for purposes of argument) that passing such a law is not among the powers expressly given to it by Article I, Section 8. However, it argues, doing so is constitutional because such a health insurance mandate is "necessary and proper" measure for Congress to effectively regulate interstate commerce (and more specifically, the national market in health insurance). Under McCulloch v. Maryland, which of the following must be true of the law mandating that individuals purchase insurance in order for t to count as "necessary" under the Necessary and Proper Clause?

The insurance mandate must be reasonably adapted to the end of regulating interstate commerce in health insurance. It need not be the only means for achieving that goal, because Congress has a choice between various means to achieving the same goals.

What is the textual basis in the Constitution for the requirement that a party have standing to sue?

The language in Article III, Section 2, which describes the power of the Supreme Court and other federal courts as extending only certain types of "cases" or "controversies"

The states and the federal government may both, in some circumstances, have power over the same types of activities.

True.

Which explains why the law in Wickard v. Fillburn - allowing Congress to prevent a farmer from growing more wheat that is allowed by a quota, even for his and his family's own personal consumption - would likely be constitutional even under the Lopez majority's rule (for when activity substantially affects interstate commerce)?

Unlike the activity in Lopez, the activity in Wickard - a farmer's growing of wheat of a kind that could be sold on the market - was an economic activity, the aggregation or reputation of which (by other farmer) would clearly affect demand.

Which of the following is one of the five factors that the Supreme Court used in United States v. Comstock to find that the federal government had power - under the necessary and proper clause - to enact a law empowering district courts to order the civil commitment of prisoners who were sex offenders - beyond the time that they finished their prison sentences?

Whether the law improperly limits the scope of power that remains with the states.

Which of the following describes a danger that Thomas Jefferson (and, in subsequent years, some Supreme Court Justices) have seen in the Necessary and Proper Clause?

Without clear limits, it might allow Congress to justify - as constitutional - any law on any subject by linking, however tenuously, to one or more of the powers enumerated in Article I, Section 8.

The federal government needs to raise money to pay its expenses. It decides to increase taxes on cigarettes, both to raise some of this money - but also on the rationale that if it's going to make any activity more expensive for people., it's good for such activity to be one (like smoking) that higher taxes would discourage people from engaging in. Assuming this is permissible under other parts of the Constitution, may Congress impose such a tax?

Yes, because it is permissible for Congress to want to discourage or deter the activity it taxes, and to have that goal as well as the goal of raising revenue.

Imagine that a wildlife researcher in Oregon is studying the Northern Spotted Owl, a species protected by the Endangered Species Act. The Department of Interior decides that while the ESA protects the Norther Spotted Owl against acts that directly harm the owl, it odes not protect the owl against forestry operations that harm the owl indirectly by harming its habitat. Assuming these forestry operation would in fact occur and would lead to the elimination of the owl population in the area, can the wildlife researcher likely show that the harm to the owl's habitat would count as "injury in fact" enabling the researcher to sue the Department of Interior in federal court?

Yes, because the harm that the researcher plausibly says will occur to the owl population will cause harm to the researcher by depriving it of animals to study in the area where the researcher works.

Imagine Congress passes a law requiring all individuals who sell fertilizer to adopt certain safeguards (specified in federal law) to help assure that such fertilizer is not purchased by terrorists for use in explosives. A particular state objects that these requirements are too onerous on its citizens. Is Congress's law nonetheless constitutional - and would it be constitutional for the federal government to enforce it?

Yes, because while Congress may not command state governments to take action, it may impose requirements on individuals within states (and federal law will preempt contrary state law).

The Constitution gives Congress the power to spend to promote "the general welfare." Imagine that Congress invokes this clause as it provides Texas, Oklahoma, and other states money to help these states determine when students (or other individuals) are in possession of guns in or near schools - and to help law enforcement crack down on such gun possession at schools. May Congress do so under its power to spend for the general welfare?

Yes. Even if Congress does not have power to directly restrict or mandate a certain action under its Article I, Section 8 powers, it can use its money to encourage others who do have power over such actions (such as state governments) to restrict them or otherwise influence them (so long as doing so can plausibly be said to promote the general welfare).

Congress passes a law setting a minimum wage for workers engaged in producing goods that will be shipped in interstate commerce. It prohibits any interstate shipment of goods that we produced by workers who do not receive that minimum wage. Does Congress have the power to pass such a law under the Commerce Clause, and apply it even to companies located entirely within a single state?

Yes. It may do so because the commerce clause allows it to control interstate shipment of goods to make it consistent with federal policy, and also because the wage standards applying to workers engaged in producing goods for interstate commerce is an activity that has a substantial relationship to interstate commerce even if it takes place within a single state's boundaries.

Article I Section 8 Clause 8 gives Congress the power to establish copyright and patent protection - allows Congress to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their writings and discoveries. May Congress establish criminal penalties for copyright violations?

Yes. The Necessary and Proper Clause only requires to show that a measure is reasonably adapted to an end Congress is permitted to pursue in exercising its enumerated power, and the Supreme Court has found Congress may pass laws in exercising these powers, and establish criminal penalties for violating these laws.

Which of the following is among the types of regulation that courts have found Congress may engage in exercising its power to regulate commerce among the several states:

regulating instrumentalities of interstate commerce, or persons or things in interstate commerce