Constitutional Law MBE2

A longstanding presidential executive order prohibited non-U.S. citizens from applying to federal civil service jobs. The sole exception was that federal agencies could hire a noncitizen if there was no qualified citizen available for that position. A noncitizen applicant who applied for a federal civil service job was informed that her application would not be considered due to this executive order. The applicant sued, arguing that that the executive order violated the Fifth Amendment's guarantee of equal protection (through the reverse incorporation doctrine). What level of scrutiny should the court apply to the applicant's claim? A. Rational basis review. B. Strict scrutiny. C. Intermediate scrutiny. D. Plenary powers review.

Solution: The correct answer is A. Answer option A is correct. Although strict scrutiny applies to alienage classifications when imposed by state or local governments, the Supreme Court has indicated that only rational basis review applies when such classifications are imposed by the federal government in accordance with the deference given to Congress regarding immigration matters. Heightened scrutiny may apply to federal alienage classifications if the classification is based upon something other than or in addition to alienage that is itself separately a suspect classification, but that is not the case here. Rather, the sole ground for the executive order's classification is alienage. Answer options B and C are necessarily incorrect for these reasons. Answer option D is incorrect because "plenary powers" refers to the broad deference accorded to Congress in certain fields such as immigration. It is not itself a standard of equal protection review.

A state enacted a law providing that individuals must own taxable real property in a local jurisdiction in the state in order to vote on any proposed measures to allow public utilities in the jurisdiction to issue municipal bonds. The state enacted this law to ensure that voters on such measures have a direct financial interest in the vote's outcome. Is the law's property ownership requirement constitutional? A. No, because all residents of a local jurisdiction have an interest in municipal services, regardless of whether they own taxable real property in the jurisdiction. B. No, because the property ownership requirement violates the right to travel. C. Yes, because the property ownership requirement is likely to survive intermediate scrutiny review. D. Yes, because the property ownership requirement is likely to survive rational basis review.

Solution: The correct answer is A. Answer option A is correct. The Supreme Court had held that a state cannot restrict the right to vote on municipal utility bonds or general obligation bonds only to the owners of taxable property in the jurisdiction. All residents, whether they own property or not, have an interest in municipal services. Answer option B is incorrect because the property-ownership requirement of the law at issue does not implicate the right to travel. Laws that incidentally and indirectly implicate one's ability to travel do not implicate that right. Answer options C and D are incorrect because they apply intermediate scrutiny and rational-basis review, respectively. Here, the law's property ownership requirement involves the fundamental right to vote and thus is subject to strict scrutiny (narrowly tailored to achieve a compelling interest).

The federal government detained several U.S. citizens in connection with alleged terrorist activity abroad. One such citizen was captured in a foreign country at a private residence that U.S. forces alleged had been used as a "safe house" for terrorists in the past. The citizen was detained by the military for 12 months at a U.S. base overseas. No federal statute directly addressed the detention of American citizens abroad under these circumstances, but the President asserted the inherent authority to detain alleged enemy combatants captured abroad, including U.S. citizens. The citizen denied any involvement in terrorist activities and asserted that his nonjudicial detention by the military was unconstitutional. Which of the following best describes the extent of the President's constitutional authority to continue to detain the citizen? A. The scope of the President's power will depend on the judicial determination of the meaning of Congress's silence on the issue, considering all the circumstances. B. The President's power is at its maximum, because the executive branch, in the exercise of the President's power as commander in chief, has the exclusive power to detain enemy combatants captured abroad. C. The President's power is at its maximum, because Congress has not affirmatively denied the President the power to detain U.S. citizens under these circumstances. D. The President's power is at its minimum, because Congress has not affirmatively granted the President the power to detain U.S. citizens under these circumstances.

Solution: The correct answer is A. Answer option A is correct. This case falls within the "twilight zone" of Justice Jackson's now-familiar Youngstown framework, which governs the interaction between the powers of the President and Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Under that framework, presidential power is at its maximum when the President acts pursuant to congressional authorization, not when Congress merely fails to affirmatively object. On the other hand, presidential power is at its minimum when the President's actions are incompatible with the expressed or implied will of Congress. When Congress can neither be said to have (1) explicitly or implicitly granted or (2) explicitly or implicitly denied the power the President has claimed in an area of shared authority, the case should be decided based on case-specific factors. Here, there is no federal statute that is directly on point and there is insufficient evidence from which to conclude that Congress's silence was either an implicit authorization or denial of authorization of the executive action. Hence, the case would be decided based upon the case-specific facts at hand. Answer option B is incorrect. Although the Supreme Court has held that the executive branch has the exclusive power to remove enemy combatants from the battlefield, the Court has not found that the decision to continue to detain an alleged enemy combatant captured and detained abroad is an exclusive presidential power. Answer options C and D are incorrect because they misstate the Youngstown framework.

A federal statute provides states with funds for child welfare programs, subject to the condition that such programs be administered in accordance with federal standards. The United States sued a state in federal court for injunctive relief, arguing that the state's child welfare programs, which were funded in part by federal funds disbursed under this statute, failed to comply with federal standards. The state has moved to dismiss the action. Is the court likely to dismiss the action? A. No, because Congress can place any condition on the receipt of federal funds. B. No, because the 11th Amendment does not bar actions brought by the United States. C. Yes, because the 11th Amendment bars actions against a state in federal court. D. Yes, because the protection of child welfare is reserved to the states.

Solution: The correct answer is B. Answer option B is correct. The 11th Amendment modifies judicial power by prohibiting a federal court from hearing a private party or foreign government's claims against a state government. Under the 11th Amendment, actions by the United States government or other state governments are not barred. Therefore, the court will not dismiss the action because it is brought by the United States. Answer option A is incorrect. Congress cannot place any condition on the receipt of federal funds. For Congress to place a condition on the receipt of federal funds by a state: (1) the condition must be unambiguous, (2) the condition must be reasonably related to the purpose of the law, and (3) the condition must not be unduly coercive. Answer option C is incorrect. The 11th Amendment does not bar all actions against a state in federal court. For example, states may waive their immunities in their own state courts, or Congress may abrogate or waive the 11th Amendment. Answer option D is incorrect. The protection of child welfare is not exclusively reserved to the states.

In an effort to counteract a steep increase in juvenile crime, a state enacted a law terminating the parental rights of any state resident whose child under 16 years of age is convicted of a violent crime in the state. The law directs the state juvenile court to enter a termination order in such a case after the parent has been afforded notice and an opportunity for a hearing at which the only relevant issues are the age of the child and whether the child has been convicted of a violent crime in the state. Is the state law constitutional? A. No, because the law is not narrowly tailored to serve a substantial state interest. B. No, because the law is not necessary to serve a compelling state interest. C. Yes, because a state's police power authorizes it to punish criminal behavior with appropriate sanctions. D. Yes, because the law is rationally related to a legitimate state interest.

Solution: The correct answer is B. Answer option B is correct. The Court uses the strict scrutiny standard when a suspect classification or fundamental right is involved. Under this standard, a law will be upheld only if it is necessary to achieve a compelling government purpose. The custody of one's children has been held to be a fundamental right, and therefore strict scrutiny will apply. Here, there is a state interest in decreasing juvenile crime. However, there are less burdensome ways of decreasing crime. Answer option A is incorrect. Although this answer comes to the correct conclusion, it applies the wrong standard, intermediate scrutiny. Under intermediate scrutiny, the law must be substantially related to an important government purpose. Intermediate scrutiny is generally used in classifications based on gender or birth legitimacy. Like strict scrutiny, the burden is on the government to justify the classification for intermediate scrutiny. Answer option C is incorrect. A state's police power comes from the 10th Amendment, which gives states the rights and powers not delegated to the United States. States are granted the power to establish and enforce laws protecting the welfare, safety, and health of the public. A state's police power does not authorize it to punish criminal behavior with appropriate sanctions. Answer option D is incorrect. This is the standard for rational basis. The custody of one's children has been held to be a fundamental right, and therefore strict scrutiny will apply.

A federal agency was authorized by statute to conduct inspections of "equipment and materials used for the manufacture" of medical implants. The agency promulgated a regulation providing that the agency could suspend sales activities of any implant manufacturer that refused to allow an inspection. Immediately thereafter, an implant manufacturer sought a federal court injunction against the regulation on the basis that the agency lacked the authority to issue it. What is the most likely obstacle to judicial review? A. Prohibition on advisory opinions. B. Lack of ripeness. C. Preclusion. D. Failure to exhaust administrative remedies.

Solution: The correct answer is B. Answer option B is correct. The claim is not ripe for judicial review. The regulation is being challenged on purely legal grounds, and the regulation does not require an immediate or significant change in the manufacturer's conduct. Judicial appraisal would be appropriate in the context of an actual agency action to suspend a manufacturer's sales. Answer option A is incorrect because the court has been asked to address the legality of a promulgated regulation as it applies to this implant manufacturer. Answer option C is incorrect because preclusion requires that there be a previous adjudication. Answer option D is incorrect because exhaustion would be applicable if the agency had undertaken an enforcement action against the manufacturer (which has not happened yet), and there was an administrative process available to the manufacturer to protect its interests (which is unclear from the facts). In this case, the manufacturer is challenging the regulation before any enforcement action has occurred.

A state statute provided that all items sold within the state were subject to a 4% sales tax. Which of the following best states the reason why the state's sales tax cannot be levied on postage stamps sold by the United States Postal Service in the state? A. States cannot constitutionally tax necessities. B. Products sold by the federal government are immune from state taxes. C. The Constitution empowers Congress to "establish Post Offices and Post Roads," which preempts any state regulation or taxation of federal postal service operations. D. The 16th Amendment gives Congress the power to lay and collect taxes on incomes without apportionment among the several states.

Solution: The correct answer is B. Answer option B is correct. While no specific words in the Constitution forbid a state tax on the federal government, the U.S. Supreme Court has held that such a prohibition violates the supremacy clause, as it would permit a state to control the actions of the federal government. Answer option A is incorrect because it is overbroad. Although many states distinguish between necessities and luxuries as a matter of their own state taxation laws, there is no constitutional requirement that they do so. Answer option C is incorrect because it is overbroad. Although some or even most instances of state regulation or taxation of federal postal service operations may be invalid due to preemption, not all would be (e.g., states may appropriately tax the wages of federal post office employees). Answer option D is correct as a statement of congressional power, but it is not relevant to the constitutionality of the state's tax as applied to the post office or the federal government.

A nightclub owner applied for a required zoning permit to open a nude-dancing nightclub in the theater district of a city. An organization of influential city residents began an intensive lobbying effort to persuade the city council to deny the owner a permit to operate any type of nude-dancing facility at any time or in any place in the city. The owner has sued the city in an appropriate federal court, seeking an injunction that would prohibit the city council from considering the organization's views, on the ground that if the organization is successful in its lobbying efforts, the owner's First and 14th Amendment rights would be violated. The city has moved to dismiss the action. Should the court dismiss the owner's action? A. No, because nude dancing is symbolic speech and is therefore protected by the First and 14th Amendments. B. No, because the organization does not seek a reasonable time, place, and manner regulation of nude dancing, but instead seeks a total ban on the owner's opening any type of nude-dancing facility at any time or in any place in the city. C. Yes, because the action is not ripe. D. Yes, because the First and 14th Amendments do not protect obscenity, and nude dancing is obscene.

Solution: The correct answer is C. Answer option C is correct. Even if a federal court has jurisdiction over the subject matter, it still might refuse to hear the case unless a case or controversy is involved. A plaintiff is generally not entitled to review a state law before it is enforced. The court will only hear a case if the plaintiff has been harmed or there is an immediate threat of harm. Here, the nightclub owner has yet to suffer any harm. He has applied for the permit and is awaiting approval. He has yet to be affected by the organization and therefore his action is not ripe. Answer option A is incorrect. The court should dismiss the owner's action because the action is not ripe. The fact that nude dancing is protected by the First Amendment is irrelevant to the analysis. Answer option B is incorrect. As the action is not ripe, an analysis of time, place, and manner is unnecessary. Answer option D is incorrect. The Supreme Court has held that nude dancing is protected by the First Amendment.

A valid treaty between the United States and a foreign country provides for the elimination of all tariff barriers between the two countries. It authorizes the president of either country to issue a proclamation nullifying any state or local laws in that country that have the effect of impeding imports from the other country. The foreign country uses the metric system of measurement, and thus all goods produced there and exported to the United States are packaged in metric sizes, such as liters and kilograms. A law of a state in the United States requires all goods sold in that state to be packaged in traditional American sizes, such as quarts or pounds. Because the state law substantially impedes imports from the foreign country, the President of the United States has issued a proclamation nullifying the state law pursuant to the treaty. Is the President's proclamation valid? A. No, because the Constitution vests in Congress the exclusive authority to specify binding legal standards for weights and measures, and the President therefore lacks constitutional authority for the proclamation. B. No, because the principles of federalism embedded in the Constitution prohibit the President from taking action to invalidate a state law. C. Yes, because it is authorized by a valid treaty of the United States and is not prohibited by any provision of the Constitution and, therefore, is the supreme law of the land. D. Yes, because the President has inherent authority to nullify any state law that substantially impedes commerce between the United States and another country.

Solution: The correct answer is C. Answer option C is correct. Just as in other federal law, treaties are the supreme law of the land. Any state action or law in conflict with a United States treaty is invalid. Therefore, the President's proclamation nullifying the state law under the treaty is valid. Answer option A is incorrect. Although Congress has the exclusive authority to specify legal standards for weights and measures, treaties are the supreme law of the land. Further, we are dealing with a state law. Therefore, this answer choice does not apply. Answer option B is incorrect. The President is not invalidating the state law. The President is enforcing a treaty between the United States and a foreign country that authorizes the president of either country to issue a proclamation nullifying any state or local laws in that country that have the effect of impeding imports from the other country. Answer option D is incorrect. The President does not have the inherent authority to nullify any state law; he has authority under the treaty to nullify laws in a limited capacity.

A state law imposes penalties for "any public statement containing false or misleading information about a service or product." An airline falsely claimed in an advertisement that its competitor had an inferior safety record. The claim was based on erroneous information, found on the website of a nonprofit consumer advocacy group, that the airline assumed to be true. The airline was charged under the state law for making a false statement. No federal statute applies. Which of the following best supports the airline in a defense based on the First Amendment? A. Its statement about the safety record was made without malice. B. Its statement about the safety record was protected noncommercial speech. C. The state law is a prior restraint. D. The state law is overbroad.

Solution: The correct answer is D. Answer option D is correct. A statute penalizing speech because it is false is a content regulation. To justify content-based regulation of speech, the government must show that the regulation is necessary to serve a compelling interest and is narrowly drawn to achieve that end. Therefore, the best defense the airline can raise is that the law is overbroad because it prohibits a substantial amount of protected speech. Answer option A is incorrect. This is not the best defense for the airline. The fact that the statement was made without malice would not help with a defense based on the First Amendment. Answer option B is incorrect. Although noncommercial speech is protected, the government may still regulate certain aspects of that speech. Answer option C is incorrect. A prior restraint is a government action that prohibits speech or other expression before it takes place. Here, the statement has already been made by the airline. Therefore, this does not apply.

In order to foster an environment conducive to learning, a school board enacted a dress code that prohibited all public high school students from wearing in school shorts cut above the knee. Because female students at the school considered it unfashionable to wear shorts cut at or below the knee, they no longer wore shorts to school. On the other hand, male students at the school regularly wore shorts cut at or below the knee because they considered such shorts to be fashionable. Female students sued to challenge the constitutionality of the dress code on the ground that it denied them the equal protection of the laws. Should the court uphold the dress code? A. No, because the dress code is not necessary to further a compelling state interest. B. No, because the dress code is not substantially related to an important state interest. C. Yes, because the dress code is narrowly tailored to further an important state interest. D. Yes, because the dress code is rationally related to a legitimate state interest.

Solution: The correct answer is D. Answer option D is correct. The court should uphold the dress code, because the code is rationally related to the state's legitimate interest in fostering a proper educational environment. The dress code should not trigger heightened judicial scrutiny, because there are no facts to suggest that the purpose of the code is to discriminate against female students. Answer options A, B, and C are incorrect for the same reason.

A U.S. senator made a speech on the floor of the Senate accusing a low-level purchasing officer employed by a federal agency of wasting millions of dollars of taxpayer money by purchasing many more office supplies than the agency needed. The accusation was demonstrably false, and the senator was negligent in making it. The purchasing officer has sued the senator for defamation, alleging only that the accusation was false, and that the senator was negligent. What is the most appropriate ground for the court to dismiss the purchasing officer's complaint? A. The federal government is constitutionally immune from suit without its consent, and it has not consented to suits of this kind. B. The First Amendment guarantees members of Congress an unqualified right to speak on matters of public concern at any place and time without having to fear adverse legal consequences. C. The First Amendment protects public officials from defamation liability for statements made in their official capacity, unless the plaintiff alleges and proves that the statement was false and uttered with actual malice. D. The speech and debate clause of Article I, Section 6 of the Constitution wholly insulates members of Congress from tort liability for statements made on the floor of Congress.

Solution: The correct answer is D. Answer option D is correct. The speech or debate clause provides that for any speech or debate in either House members shall not be questioned in any other place. This immunity extends to conduct that occurs in the regular course of legislative process and the motivation behind that conduct is immune from prosecution. Because the U.S. senator made his speech on the floor of the Senate, this is the most appropriate ground for dismissal. Answer option A is incorrect. While this is true, lawsuits against a federal officer are deemed to be brought against the United States itself only if the judgment would be paid out of the treasury or would interfere with public administration. This is not the most appropriate ground for dismissing the complaint. Answer option B is incorrect. While the First Amendment does provide members of Congress with some protection, it does not give them an unqualified right to speak on matters of public concern at any place and time. Answer option C is incorrect. The most appropriate grounds for dismissing the officer's complaint would be the speech and debate clause because it wholly insulates members of Congress from liability.

A nonprofit corporation had a contract with a city to provide public access cable television. The corporation terminated a producer after receiving complaints about the producer's program. The producer brought an action challenging the termination as a violation of the First Amendment. The corporation argued that it was not subject to the First Amendment. Which statement best describes what the producer, as plaintiff, must do to be successful in the lawsuit? A. The plaintiff must prevail on the threshold issue of state action. B. The plaintiff must prevail on the merits issue of the First Amendment. C. The plaintiff must prevail on either the threshold issue of state action or on the merits issue of the First Amendment. D. The plaintiff must prevail on both the threshold issue of state action and on the merits issue of the First Amendment.

Solution: The correct answer is D. Answer option D is correct. When a plaintiff brings a lawsuit alleging a violation of the First, Fourth, Fifth, or 14th Amendment, the plaintiff first will have to demonstrate that the alleged injury occurred because of state or other government action. Then, the plaintiff will have to show that there has been a violation of the constitutional right. Both are required in order to be successful in the lawsuit. Answer options A, B, and C are necessarily incorrect for these reasons.

Because of a sudden and unanticipated severe shortage of heating fuel, the President has ordered all offices of federal executive agencies to be open only four days per week. The President's order allows an exception to the extent that emergency circumstances require different hours of operation (as in the case of federal hospitals). When Congress enacted the appropriations statute for operating all federal executive agencies, its members assumed that the offices of those agencies would be open five days per week, but Congress did not include such a requirement in its appropriations statute or in any other statute. Is the President's order constitutional? A. No, because the heads of the various executive agencies have final responsibility for the operation of those agencies' offices. B. No, because when they passed the statute appropriating monies for the operation of executive agencies, members of Congress assumed that those agencies' offices would be open five days per week. C. Yes, because the Constitution vests the President with plenary authority to direct the administration of all federal agencies in any manner the President deems expedient. D. Yes, because the order relates to the management of the executive branch and is not prohibited by any statute.

Solution: The correct answer is D. Answer option D is correct. When the President issues an order on which Congress is silent, his action will be upheld as long as the act does not take over the powers of another branch of government or prevent another branch from carrying out its tasks. Here, Congress did not include any requirements for hours of operations of federal executive agencies. There is nothing in the facts to indicate that the order would be prohibited by any other statute. Answer option A is incorrect. The order relates to the management of the executive branch and the President is allowed to act so long as he meets the requirements mentioned above. Answer option B is incorrect. An assumption is not enough. For the purposes of the analysis of the statute, Congress is silent on the operating hours. Answer option C is incorrect. The President cannot direct the administration of all federal agencies in any manner he deems expedient. If the President acts against the express will of Congress, he has little authority and his action will likely be invalid.

Congress enacted a statute requiring state law enforcement officials to determine the citizenship status of any person with whom they came into contact and to report every "irregular citizenship status" to the federal government through a specially created database. State law enforcement officials challenged the constitutionality of the statute. What is the best constitutional basis for a challenge to the statute? A. The commerce clause. B. The citizenship clause of the 14th Amendment. C. The naturalization clause. D. The 10th Amendment.

Solution: The correct answer is D. Answer option D is correct. While state officials are permitted to report immigration status to the federal government, the federal government requiring them to do so would violate the 10th Amendment. In Printz v. United States, 521 U.S. 898 (1997), the Supreme Court held that it would be inconsistent with the 10th Amendment to permit the federal government to "commandeer" state officials to enforce federal laws. The anti-commandeering principle applies even for relatively minor inconveniences on state officials, such as requiring them to perform background checks or adhere to reporting requirements. Answer option A is incorrect because, although some early cases sought to ground federal power over immigration in the commerce clause, the commerce clause is no longer interpreted in this manner. Answer options B and C relate to congressional authority to regulate citizenship and immigration, but they do not provide a means to attack this statute.