Con Law Adaptibar Questions + More

Dormant Commerce Clause exceptions/negative implications

(1) Congressional Approval (2) The market participant exception. (Ex: In-state tuition)

Fourteenth Amendment

*No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States*; *nor shall any State deprive any person of life, liberty, or property, without due process of law*; nor deny to any person within its jurisdiction the equal protection of the laws.

*privileges and immunities*: condensed

*Privileges & Immunities of the 14th Amendment* - Right to travel between states is a fundamental right - The Slaughterhouse Cases *Equal Privileges and Immunities Clause* - states are to treat their citizens and the citizens of other states equally - requires equality of treatment of two similar groups *Privileges & Immunities of Art. IV, Section 2* - gives citizens of each state most of the privileges of citizens of other states - requires a state to treat a nonresident similarly to a resident with regard to things that are "privileges and immunities" - Ex: engaging in commercial activities in a state in which you are not a citizen is a privilege and immunity of Art. IV, section 2

Article II, Section 2

*powers of the president*, including commander in chief, appointment of officers in various executive departments with confirmation by Senate, ability to require consul by said officers, grant reprieves and pardons, power to make treaties with advise and consent of Senate

types of congressional adjournment

1. adjournments of three days or less, which are taken pursuant to motion 2. adjournments of more than three days, which require the consent of the Senate (§10) 3. adjournments sine die, which end each session of a Congress and which require the consent of both Houses

Congress passed a statute providing that parties could no longer seek review in the U.S. Supreme Court of final judgments in criminal matters made by the highest court in each state. What is the best argument supporting the constitutionality of the statute? A. Congress has the power to make exceptions to the appellate jurisdiction of the Supreme Court. B. Criminal matters are traditionally covered by state law. C. The proper means of federal judicial review of state criminal matters is by habeas corpus. D. The review of state court judgments is not within the original jurisdiction of the Supreme Court.

A. Congress has the power to make exceptions to the appellate jurisdiction of the Supreme Court. *Article III gives Congress broad power to restrict the US Supreme Court's appellate jurisdiction*. Some limits on this power have been suggested, but Congress nevertheless has the authority to strip the court of its appellate jurisdiction to hear particular types of cases

In order to provide funds for a system of new major airports near the ten largest cities in the United States, Congress levies a tax of $25 on each airline ticket issued in the United States. The tax applies to every airline ticket, even those for travel that does not originate in, terminate at, or pass through any of those ten large cities. As applied to the issuance in the United States of an airline ticket for travel between two cities that will not be served by any of the new airports, this tax is: A. Constitutional, because Congress has broad discretion in choosing the subjects of its taxation and may impose taxes on subjects that have no relation to the purpose for which those tax funds will be expended. B. Constitutional, because an exemption for the issuance of tickets for travel between cities that will not be served by the new airports would deny the purchasers of all other tickets the equal protection of the laws. C. Unconstitutional, because the burden of the tax outweighs its benefits for passengers whose travel does not originate in, terminate at, or pass through any of the ten largest cities. D. Unconstitutional, because the tax adversely affects the fundamental right to travel.

A. Constitutional, because Congress has broad discretion in choosing the subjects of its taxation and may impose taxes on subjects that have no relation to the purpose for which those tax funds will be expended Congress's power to tax and to spend funds are both very broad, and *there is no requirement that what is spent be related in any way to what is taxed*

National statistics revealed a dramatic increase in the number of elementary and secondary school students bringing controlled substances to school for sale. In response, Congress enacted a statute requiring each State legislature to enact a State law making it a crime for any person to sell, within 1,000 feet of any elementary or secondary school, any controlled substance that had previously been transported in interstate commerce. Is the federal statute constitutional? A. No, because Congress has no authority to require a state legislature to enact any specified legislation. B. No, because the sale of a controlled substance in close proximity to a school does not have a sufficiently close nexus to interstate commerce to justify its regulation by Congress. C. Yes, because it contains a jurisdictional provision that will ensure, on a case-by-case basis, that any particular controlled substance subject to the terms of this statute will, in fact, affect interstate commerce. D. Yes, because Congress possesses broad authority under both the General Welfare Clause and the Commerce Clause to regulate any activities affecting education that also have, in inseverable aggregates, a substantial effect on interstate commerce.

A. No, because Congress has no authority to require a state legislature to enact any specified legislation. *Congress is not permitted to force states into passing specific laws. It may condition the receipt of funding upon passing certain laws*, but that is not what occurred here. This is plainly an attempt by Congress to force states to enact certain legislation, which is unconstitutional.

A federal law provides that all motor vehicle tires discarded in this country must be disposed of in facilities licensed by the federal Environmental Protection Agency. Pursuant to this federal law and all proper federal procedural requirements, that agency has adopted very strict standards for the licensing of such facilities. As a result, the cost of disposing of tires in licensed facilities is substantial. A particular state has a very large fleet of motor vehicles, including trucks used to support state-owned commercial activities and police cars. The state disposes of used tires from both kinds of state motor vehicles in a facility owned and operated by the state. This state facility is unlicensed, but its operation in actual practice meets most of the standards imposed by the federal Environmental Protection Agency on facilities it licenses to dispose of tires. Consistent with United States Supreme Court precedent, may the state continue to dispose of its used tires in this manner? A. No, because a state must comply with valid federal laws that regulate matters affecting interstate commerce. B. No, because some of the tires come from vehicles that are used by the state solely in its commercial activities. C. Yes, because some of the tires come from vehicles that are used by the state in the performance of core state governmental functions such as law enforcement. D. Yes, because the legitimate needs of the federal government are satisfied by the fact that the unlicensed state disposal scheme meets, in actual practice, most of the federal standards for the licensing of such facilities.

A. No, because a state must comply with valid federal laws that regulate matters affecting interstate commerce. A state is treated as a person for purposes of federal law and must comply with validly enacted federal laws. This law is validly enacted because tires, which are bought and sold, are part of the stream of commerce.

A federal statute requires any individual or entity owning more than 100 cars to ensure that at least 10 percent of those cars are electric-powered. A city has sued the federal official responsible for enforcing this statute in federal district court, seeking an injunction prohibiting enforcement of the statute on the ground that it is unconstitutional. Should the court grant the injunction? A. No, because the statute is valid under the Commerce Clause and does not violate the Tenth Amendment B. No, because the federal government has sovereign immunity and cannot be sued without its explicit consent C. Yes, because the statute violates the reserved rights of the states under the Tenth Amendment D. Yes, because as applied to state and local government, the statute exceeds Congress's power under the Commerce Clause.

A. No, because the statute is valid under the Commerce Clause and does not violate the Tenth Amendment. The statute falls within the scope of congressional power to regulate commercial activity that, in the aggregate, has a substantial effect on interstate commerce.

Congressional committees heard testimony from present and former holders of licenses issued by state vocational licensing boards. According to the testimony, the boards had unfairly manipulated their disciplinary proceedings in order to revoke the licenses of some license holders as a means of protecting favored licensees from competition. In response, Congress enacted a statute prescribing detailed procedural requirements for the disciplinary proceedings of all state vocational licensing boards. The statute requires the state boards to provide licensees with adequate notice and opportunity for an adjudicatory hearing in all disciplinary proceedings. The statute also prescribes membership criteria for state vocational licensing boards, designed to ensure that the boards are likely to be neutral. Which of the following provides the best source of authority for this federal statute? A. Section 5 of the Fourteenth Amendment. B. The general welfare clause of Article I, Section 8. C. The privileges and immunities clause of Article IV, Section 2. D. The takings clause of the Fifth Amendment.

A. Section 5 of the Fourteenth Amendment. *Section 5 of the Fourteenth Amendment authorizes this federal statute because it seeks to prevent and/or remedy due process violations* against licensees (via favoritism and unfair licensing procedures) and it is congruent with and proportional to that discrimination by the licensing boards. The *Privileges and Immunities Clause of Article IV, Section 2 does not apply here because the statute does not address discrimination by licensing boards against the citizens of other states*.

The United States had long recognized the ruling faction in a foreign country as that country's government, despite an ongoing civil war. Throughout the civil war, the ruling faction controlled the majority of the government's territory and the United States offered diplomatic immunity to the ambassador representing the ruling faction. A newly elected President of the United States decided to recognize a rebel group as the government of the foreign country and notify the ambassador for the ruling faction that she must leave the United States within 10 days. The ambassador sues in federal district court for a declaratory judgment that the ruling faction was the true government of the foreign country and for injunctive relief against enforcement of the President's order that she leaves the United States. The United States has moved to dismiss the lawsuit. If the court dismisses the action, what would be the most likely reason? A. The action involves a nonjusticiable political question. B. The action is not ripe. C. The action is within the original jurisdiction of the US Supreme Court. D. The ambassador does not have standing.

A. The action involves a nonjusticiable political question. The action likely *satisfies the political question doctrine & therefor should be dismissed as nonjusticiable*. The President's Article II power to receive foreign ambassadors is likely a textually demonstrable commitment by the Constitution of exclusive authority to recognize foreign governments. Moreover, Article II provides no judicially manageable standards by which a court could review the constitutionality of a President's decision on whether to recognize a foreign government. Finally, because the action involves the President's administration of foreign affairs, the prudential elements of the political question doctrine also indicate that the court should dismiss the action as nonjusticiable.

To encourage urban farming, a city ordinance requires vegetables sold at farmers' markets in the city to have been grown within the city limits. A farmer who grows vegetables on land in a nearby state wants to sell those vegetables at a farmers' market in the city. The farmer has challenged the ordinance on constitutional grounds. What is the farmer's best argument that the ordinance is unconstitutional? A. The ordinance discriminates on its face against interstate commerce, and there are nondiscriminatory ways to promote the city's interest in encouraging urban farming. B. The ordinance is not substantially related to an important government interest. C. The ordinance places an undue burden on interstate commerce that is clearly disproportionate to the city's interest in encouraging urban farming. D. The ordinance unconstitutionally burdens the farmer's right to travel across state lines to sell his vegetables at the farmers' market

A. The ordinance discriminates on its face against interstate commerce, and there are nondiscriminatory ways to promote the city's interest in encouraging urban farming. On its face the ordinance discriminates against commerce from outside the city and, by doing so, it necessarily excludes commerce from outside the state. Even though the ordinance also excludes some commerce from within the state, it is still considered facially discriminatory against interstate commerce. *Facially discriminatory laws are only allowed in the absence of any non-discriminatory means to promote the government's interest*. C&A Carbone, Inc. v. Town of Clarkstown, 511 US 383 (1994).

In response to massive layoffs of employees of automobile assembly plants located in a particular state, the legislature of that state enacted a statute which prohibits the parking of automobiles manufactured outside of the United States in any parking lot or parking structure that is owned or operated by the state or any of its instrumentalities. This statute does not apply to parking on public streets. Which of the following is the strongest argument with which to challenge the constitutionality of this statute? A. The statute imposes an undue burden on foreign commerce. B. The statute denies the owners of foreign-made automobiles the equal protection of the laws. C. The statute deprives the owners of foreign-made automobiles of liberty or property without due process of law. D. The statute is inconsistent with the Privileges or Immunities Clause of the Fourteenth Amendment.

A. The statute imposes an undue burden on foreign commerce. Congress has the sole power to regulate foreign commerce, as well as plenary power to regulate interstate commerce (and, at times, purely intrastate commerce). Taking into consideration these powers and the Dormant Commerce Clause requirements governing state regulation of commerce, this restriction on owners of foreign cars constitutes an undue burden on the congressional power to regulate foreign commerce.

Congress enacted a statute providing grants of federal funds for the restoration and preservation of courthouses that were built before 1900 and are still in use. The statute contains an inseverable condition requiring that any courthouse restored with the aid of such a grant must be equipped with ramps and other facilities necessary to accommodate physically handicapped people. A law of a particular state requires public buildings in the state to have ramps and other facilities for handicapped people. It exempts from those requirements any building that is more than 70 years old if the State Board of Architects finds that the installation of such facilities would destroy the architectural integrity of the building. The county courthouse in the state was built in 1895 and is still in use. It does not contain ramps or other special facilities for handicapped people. The State Board of Architects has determined that the installation of those facilities would destroy the architectural integrity of the building. The county board applies for a federal grant to restore and preserve that county's courthouse. If the county board restores the courthouse with the aid of a federal restoration and preservation grant, is the board bound to install ramps and other facilities for handicapped people in that building? A. Yes, because Congress may impose reasonable conditions related to the public welfare on grants of federal funds to public bodies when the public bodies are free to accept or reject the grants. B. Yes, because the rights of handicapped and disabled people are fundamental rights that take precedence, as a constitutional matter, over considerations of architectural integrity. C. No, because the Constitution does not authorize the federal government to direct the actions of the states or any of their political subdivisions with respect to matters affecting their own governmental buildings. D. No, because any acceptance of this condition by the county board of supervisors would, as a matter of law, be considered to be under duress.

A. Yes, because Congress may impose reasonable conditions related to the public welfare on grants of federal funds to public bodies when the public bodies are free to accept or reject the grants. Congress can condition the grant of federal funds to public bodies on compliance with measures related to the public welfare as long as the public body is free to accept or reject the grants.

In order to reduce the federal deficit, Congress enacted a statute imposing a five percent national retail sales tax. The tax was levied upon all retail sales in the United States and applied equally to the sales of all kinds of goods. Is this tax constitutional as applied to retail sales of newspapers? A. Yes, because it is within Congress's power to tax. B. Yes, because the tax is necessary to serve the compelling interest of balancing the federal budget. C. No, because the imposition of a tax on the sale of newspapers violates the freedom of the press. D. No, because retail sales taxes are within the taxing power of the states.

A. Yes, because it is within Congress's power to tax. Congress has a power to lay and collect taxes. Specifically, the Tax Clause of Article I, Section 8 gives Congress plenary power to raise revenue through taxes, which includes the sale of newspapers. *Taxes do not need to be necessary to serve compelling interests to be constitutional*.

The National Ecological Balance Act prohibits the destruction or removal of any wild animals located on lands owned by the U.S. without express permission from the Federal Bureau of Land Management. Violators are subject to fines of up to $1,000 per offense. After substantial property damage was inflicted on residents of a particular state by hungry coyotes, the state legislature passed the Coyote Bounty Bill, which offers $25 for each coyote killed or captured within the state. A national forest, owned by the U.S. Government, is located entirely within the state. Many coyotes live in this national forest. Without seeking permission of the Bureau of Land Management, a hunter shot several coyotes in the national forest and collected the bounty from the state. As a result, he was subsequently tried in federal court, convicted, and fined $1,000 for violating the National Ecological Balance Act. The hunter appealed his conviction to the U.S. Court of Appeals. On appeal, the court should hold the National Ecological Balance Act, as applied to the hunter, to be A. constitutional, because the property clause of Article IV, Section 3, of the Constitution authorizes such federal statutory controls and sanctions. B. constitutional, because Article I, Section 8, of the Constitution authorizes Congress to enact all laws necessary and proper to advance the general welfare. C. unconstitutional, because Congress may not use its delegated powers to override the Tenth Amendment rights of the state to legislate in areas of traditional state governmental functions, such as the protection of the property of its residents. D. unconstitutional, because Congress violates the full faith and credit clause of Article IV when it punishes conduct that has been authorized by state action.

A. constitutional, because the property clause of Article IV, Section 3, of the Constitution authorizes such federal statutory controls and sanctions. Article IV, Section 3, Clause 2 of the Constitution gives Congress the power to make all necessary rules and regulations concerning the property of the United States. Therefore, the Act is within Congress's power and thus, constitutional.

A federal statute prohibits the sale or resale, in any place in this country, of any product intended for human consumption or ingestion into the human body that contains designated chemicals known to cause cancer, unless the product is clearly labeled as dangerous. The constitutionality of this federal statute may most easily be justified on the basis of the power of Congress to A. regulate commerce among the states B. enforce the Fourteenth Amendment C. provide for the general welfare D. promote science and the useful arts

A. regulate commerce among the states The power granted to Congress to regulate commerce has been interpreted so broadly that it encompasses almost any economic act that could conceivably have some kind of impact, even secondarily, on the stream of commerce. *Because this statute prohibits the sale or resale of certain products without certain safeguards, it clearly falls under this broad power*.

Current national statistics show a dramatic increase in the number of elementary and secondary school students bringing controlled substances (drugs) to school for personal use or distribution to others. In response, Congress enacted a statute requiring each state legislature to enact a state law that makes it a state crime for any person to possess, use, or distribute, within 1,000 feet of any elementary or secondary school, any controlled substance that has previously been transported in interstate commerce and that is not possessed, used, or distributed pursuant to a proper physician's prescription. This federal statute is A. unconstitutional, because Congress has no authority to require a state legislature to enact any specified legislation. B. unconstitutional, because the possession, use, or distribution, in close proximity to a school, of a controlled substance that has previously been transported in interstate commerce does not have a sufficiently close nexus to such commerce to justify its regulation by Congress. C. constitutional, because it contains a jurisdictional provision that will ensure, on a case-by-case basis, that any particular controlled substance subject to the terms of this statute will, in fact, affect interstate commerce. D. constitutional, because Congress possesses broad authority under both the General Welfare Clause and the Commerce Clause to regulate any activities affecting education that also have, in inseverable aggregates, a substantial effect on interstate commerce.

A. unconstitutional, because Congress has no authority to require a state legislature to enact any specified legislation. *Congress does not have the authority to require a state legislature to enact any specified legislation except when it is acting under its spending power*. This is not a spending provision, so Congress cannot force states to enact these laws.

MULTIPLE CHOICE QUICK FACTS

Administrative agencies exercise executive power. They are technically under executive authority, but, as a matter of practice, they do all 3 (legislative, executive, judicial). He will accept either executive or all of the above. The President is NOT always acting as president. The Senate cannot nominate, only the President. Congress cannot delegate its lawmaking authority to the President.

Supremacy Clause

Article VI of the Constitution, which makes the Constitution, national laws, and treaties supreme over state laws when the national government is acting within its constitutional limits.

Political Question Doctrine

Federal Courts won't decide issues that should be resolved by executive and legislative branches. Major examples = challenges to the President's conduct of foreign policy, challenges to the impeachment and removal process.

Texas adopts a law regulating hunting leases by requiring all Texas commercial hunting licenses to be a minimum of 6 months in length, and costs $500. This causes a drop in the number of hunters who arrive from outside the state of Texas to hunt for a week or less, due allegedly to the cost of the license. Hunting lease owners sue the head of the department regulating hunting, alleging that the law is unconstitutional. The law is likely A. Constitutional, because the privileges or immunities clause of the 14th amendment is not applicable to licensing of leisure rather than work activities B. Constitutional, because the privileges and immunities clause of Article IV, section 2 is inapplicable to the complaint of the lease owners C. Unconstitutional, because the equal protection clause of the 14th amendment requires more than substantial equality when offering licenses of any type D. Unconstitutional, because the privileges and immunities clause of Article IV, section 2 applies to hunting licenses as well as other activities

B. Constitutional, because the privileges and immunities clause of Article IV, section 2 is inapplicable to the complaint of the lease owners First, you have to determine the correct doctrine (What's the difference between P or I of the 14th and P&I of Art. IV, Section 2? What's the difference between P&I and EP?) - P or I of the 14th Amendment applies as stated in The Slaughterhouse Cases, and that means hardly at all, just "right to travel" cases, and they can still travel. So not A. - EP requires equality of treatment of two similar groups, but doesn't differentiate between those in the state and those outside the state. So not C. - P&I of Art. IV, section 2 requires a state to treat a nonresident similarly to a resident with regard to things that are "privileges and immunities"; *To engage in commercial activities in a state in which you are not a citizen is a privilege and immunity of Art. IV, section 2*, which is why the facts note this involves a commercial hunting license. Since the current doctrine is P&I of Art. IV, that makes A and C incorrect. Now, the analytical part. Is it B or D? - In our case, there is *no disparity in the cost of the hunting license between Texans and non-Texans*. - Therefore, the law is not unconstitutional on P&I grounds, so D can't be right. That leaves B as the last standing answer.

A federal agency solicited bids to build a bridge on an interstate highway. In evaluating the bids, the agency took into account the cost of the bridge and other specified factors. A construction company submitted a bid that was lowest in cost, but the agency chose another bidder that offered more advantages on the other factors. The company that submitted the lowest bid sued the federal agency in federal district court. The only relief that the company sought was to enjoin the issuance of a contract to the prevailing bidder. The company was unable to obtain a temporary restraining order or preliminary injunction. The agency awarded the contract to the bidder it had originally selected. Just as the new bridge was completed and opened, the suit came to trial. How should the court handle this case? A. Award the company the amount of its lost profits. B. Dismiss the suit, because it is now moot. C. Dismiss the suit, because it turns on discretionary decisions of federal officials. D. Hear and determine the case on the merits.

B. Dismiss the suit, because it is now moot. The only relief sought by the company was an injunction against awarding the contract to another bidder. During the pretrial period, the contract was awarded to the other bidder and the bridge was completed and opened. Thus, *the only relief sought by the company is no longer available and the case is moot*. See Alvarez v. Smith, 559 US 87 (2009); De Funis v. Odegaard, 416 US 312 (1974).

Kelly County, in the state of Green, is located adjacent to the border of the state of Red. The communities located in Kelly County are principally suburbs of Scarletville, a large city located in Red, and therefore there is a large volume of traffic between that city and Kelly County. While most of that traffic is by private passenger automobiles, some of it is by taxicabs and other kinds of commercial vehicles. An ordinance of Kelly County, the stated purpose of which is to reduce traffic congestion, provides that only taxicabs registered in Kelly County may pick up or discharge passengers in the county. The ordinance also provides that only residents of Kelly County may register taxicabs in that county. Which of the following is the proper result in a suit brought by Scarletville taxicab owners challenging the constitutionality of this Kelly County Ordinance? A. Judgment for Scarletville taxicab owners, because the fact that private passenger automobiles contribute more to the traffic congestion problem in Kelly County than do taxicabs indicates that the ordinance is not a reasonable means by which to solve that problem. B. Judgment for Scarletville taxicab owners, because the ordinance unduly burdens interstate commerce by insulating Kelly County taxicab owners from out-of-state competition without adequate justification. C. Judgment for Kelly County, because the ordinance forbids taxicabs registered in other counties of Green as well as in states other than Green to operate in Kelly County and, therefore, it does not discriminate against interstate commerce. D. Judgment for Kelly County, because Scarletville taxicab owners do not constitute a suspect class and the ordinance is reasonably related to the legitimate governmental purpose of reducing traffic congestion.

B. Judgment for Scarletville taxicab owners, because the ordinance unduly burdens interstate commerce by insulating Kelly County taxicab owners from out-of-state competition without adequate justification. The ordinance classifies on the basis of county residency: only residents of Kelly County can register taxicabs there, and only registered taxicabs can pick up or drop off passengers in the county. *The ordinance effectively gives Kelly residents a monopoly over the taxicab business in the guise of reducing congestion*. This monopoly burdens interstate commerce, and because there is no limit on the number of taxicabs that can be registered, it is difficult to see how the ordinance will reduce congestion. Thus, the ordinance impermissibly burdens interstate commerce without adequate justification.

A toy manufacturer that has its headquarters and sole manufacturing plant in a particular state has developed a "Martian" toy that stimulates the exploration of Mars by a remote-controlled vehicle. It accurately depicts the Martian landscape and the unmanned exploratory vehicle traversing it. The toy is of high quality, safe, durable, and has sold very well. Other toy manufacturers, all located outside the state, developed similar toys that are lower in price. These manufacturers have contracts to sell their Martian toys to outlets in the state. Although these toys are safe and durable, they depict the Martian landscape less realistically than the toys manufactured in the state. Nevertheless, because of the price difference, sales of these toys have cut severely into the sales of the Martian toys manufactured in the state. The state legislature subsequently enacted a law "to protect the children of this state from faulty science and to protect Green toy manufacturers from unfair competition." This law forbids the sale in the state of any toy that purports to represent extraterrestrial objects and does not satisfy specified scientific criteria. The Martian toy manufactured in the state satisfies all of these criteria; none of the Martian toys of the competing manufacturers meets the requirements. Is the state law constitutional? A. No, because it abrogates the obligations of the contracts between the other toy manufacturers and their Green outlets who have agreed to sell their Martian toys. B. No, because it imposes an undue burden on interstate commerce. C. Yes, because it deals only with a local matter, the sale of toys in Green stores. D. Yes, because the state's interest in protecting the state's children from faulty science justifies this burden on interstate commerce.

B. No, because it imposes an undue burden on interstate commerce. The Commerce Clause gives Congress the power to regulate commerce among the states and, by negative implication, restricts the regulatory power of the states with respect to Interstate commerce. *Any state law that has a substantial effect on interstate commerce must not be protectionist or otherwise impose an undue burden on Interstate commerce*. *A protectionist law benefits in-state interest at the expense of out-of-state interest*. A state law that discriminates against interstate commerce is protectionist unless it serves legitimate local interests that cannot be served by non-discriminatory legislation. By barring the sale in the state of the Martian toys manufactured and other states, the state law has a substantial effect on Interstate commerce. Although the law does not explicitly discriminate against the out-of-state toy manufacturers, it has a purely discriminatory effect against from, and the state has less discriminatory alternatives available to protect the legitimate interest cited in the law. The state law therefore violates the negative implications of the Commerce clause.

A weed often found growing in vacant lots contains a stimulant that can be extracted by boiling the weed in water. Someone drinking the resulting "tea" can remain awake for long periods of time. However, drinking the tea can also cause paralysis and even death. Because the weed is so readily available, there is no commercial market for it. Congress has enacted a statute that makes possession of the tea a misdemeanor. The statute has no other provisions and is not part of a broader federal statutory scheme. Is the statute constitutional? A. No, because Congress can regulate Only commercial transactions involving drugs. B. No, because possession of the tea is a noncommercial activity with no link to interstate commerce. C. Yes, because boiling water generally involves use of stoves and fuels that have moved in interstate commerce. D. Yes, because, in the aggregate, the deaths in cases of paralysis caused by the stimulant have a significant economic impact.

B. No, because possession of the tea is a noncommercial activity with no link to interstate commerce. *Congress does not have the power under the Commerce Clause to regulate a noncommercial activity with no link to interstate commerce*. See United States v. Lopez, 514 U.S. 549 (1995). The facts here do not involve a comprehensive regulation of commerce that incidentally covers some intrastate activities, as was the case in Gonzales v. Raich, 545 U.S. 1 (2005).

Congress created a statute that authorized the construction of a monument commemorating the role of the United States in liberating a particular country during World War II. Another statute appropriated $3 million for the construction. When the United States became involved in a bitter trade dispute with this foreign nation, the President announced that he was canceling the monument's construction and that he would not spend the appropriated funds. Although the actual reason for the President's decision was the trade dispute, the announcement stated that the reason was an unexpected rise in the federal deficit. Assume that no other statute applies. Is the President's decision constitutional? A. No, because the President failed to invoke his foreign affairs power in his announcement B. No, because the President is obligated to spend funds in accordance with congressional directions C. Yes, because the President is vested with inherent executive power to control federal expenditures D. Yes, because the President's decision is a valid exercise of his foreign affairs powers

B. No, because the President is obligated to spend funds in accordance with congressional directions The President's decision is unconstitutional, because *Article II of the Constitution obligates the President to take care that the laws are faithfully executed*. Because the appropriation statute is a valid exercise of Congress's spending power, the President must abide by the requirements of the statute.

A state owned a large natural gas field and took bids for its exploitation. The highest bid came from an interstate pipeline company that distributed natural gas to providers throughout the country. A local gas company submitted the next highest bid, which included the commitment that it would pass along to local customers any savings if it was awarded the contract. The state awarded the contract to the local company. The interstate company sued to overturn this decision. Should the interstate company prevail? aA No, because the state has a compelling interest in reducing the cost of gas for state citizens. B. No, because the state acted as a market participant C. Yes, because the state acted irrationally by not choosing the highest bidder and thus denied the interstate company due process of law D. Yes, because the state discriminated against interstate commerce.

B. No, because the state acted as a market participant *When the state participates in the economic marketplace, it may decide with whom it wishes to contract *without regard to the restrictions of the Dormant Commerce Clause. Here the state is a market participant because it is selling the rights to exploit a natural gas field that it owns. The usual rules of the Dormant Commerce Clause restricting the power of the state to prefer local economic actors over interstate companies therefore do not apply.

"Look-alike drugs" is the term used to describe nonprescription drugs that look like narcotic drugs and are sold on the streets as narcotic drugs. After extensive hearings, Congress concluded that the sale of look-alike drugs was widespread in this country and was creating severe health and law enforcement problems. To combat these problems, Congress enacted a comprehensive statute that regulates the manufacture, distribution, and sale of all nonprescription drugs in the United States. Which of the following sources of constitutional authority can most easily be used to justify the authority of Congress to enact this statute? A. The spending power. B. The Commerce Clause. C. The General Welfare Clause. D. The enforcement powers of the Fourteenth Amendment.

B. The Commerce Clause. The power granted to Congress to regulate commerce has been interpreted so broadly that it encompasses almost any economic act that could conceivably have some kind of impact, even secondarily, on the stream of commerce. *Because the sale of these drugs was widespread throughout the country, and the statute targeted the sale, manufacturing, and distribution of the drugs, it is properly authorized by the Commerce Clause*.

Congress passed a statute directing the United States Forest Service, a federal agency, to issue regulations to control campfires on federal public lands and to establish a schedule of penalties for those who violate the new regulations. The statute provided that the Forest Service regulations should "reduce, to the maximum extent feasible, all potential hazards that arise from campfires on Forest Service lands." The Forest Service issued the regulations and the schedule of penalties directed by Congress. The regulations include a rule that provides for the doubling of the fine for any negligent or prohibited use of fire if the user is intoxicated by alcohol or drugs. Which of the following is the best argument for sustaining the constitutionality of the Forest Service's rule providing for the fines? A. The executive branch of government, of which the Forest Service is part, has inherent rule-making authority over public lands. B. The rule is issued pursuant to a valid exercise of Congress's power to delegate rule-making authority to federal agencies. C. The rule is justified by a compelling governmental interest in safeguarding forest resources. D. The rule relates directly to law enforcement, which is an executive rather than legislative function, and hence it does not need specific congressional authorization.

B. The rule is issued pursuant to a valid exercise of Congress's power to delegate rule-making authority to federal agencies. *Congress may delegate rule-making authority to federal agencies through statutes that provide an intelligible principle governing the exercise of that authority*. The Supreme Court has been very differential in applying the intelligible principle requirement, and the statute's provision of authority to the Forest Service to issue regulations controlling campfires and establishing a penalty schedule likely satisfies a requirement

The Federal Computer Abuse Act establishes the Federal Computer Abuse Commission, authorizes the Commission to issue licenses for the possession of computers on terms that are consistent with the purposes of the act, and makes the unlicensed possession of a computer a crime. The provisions of the Federal Computer Abuse Act are inseverable. A user applied to the Federal Computer Abuse Commission for a license to possess a computer. The Commission held, and the user participated in, a trial-type proceeding on the user's license application. In that proceeding it was demonstrated that the user repeatedly and intentionally used computers to introduce secret destructive computer programs (computer viruses) into electronic data banks without the consent of their owners. As a result, the Commission denied the user's application for a license. The license denial was based on a Commission rule authorized by the Computer Abuse Act that prohibited the issuance of computer licenses to persons who had engaged in such conduct. Nevertheless, the user retained and continued to use his computer. He was subsequently convicted of the crime of unlicensed possession of a computer. On appeal, he challenges the constitutionality of the licensing provision of the Federal Computer Abuse Act. In this case, the reviewing court would probably hold that act to be A. constitutional, because the Constitution generally authorizes Congress to enact all laws that are necessary and proper to advance the general welfare, and Congress could reasonable believe that possession of computers by people like the user constitutes a threat to the general welfare B. constitutional, because Congress may use the authority vested in it by the commerce clause to regulate the possession of computers and the provisions of this act do not violate any prohibitory provision of the Constitution C. unconstitutional, because Congress may not impose a criminal penalty on action that is improper merely because it is inconsistent with an agency rule D. unconstitutional, because the mere possession of a computer is a wholly local matter that is beyond the regulatory authority of Congress

B. constitutional, because Congress may use the authority vested in it by the commerce clause to regulate the possession of computers and the provisions of this act do not violate any prohibitory provision of the Constitution Congress's broad power under the *Commerce Clause allows for the regulation of articles moving in the stream of commerce, which includes regulating the possession* of computers. Here, the licensing provision does not violate any other constitutional prohibition, and therefore, is constitutional

The Sports Championship Revenue Enhancement Act is a federal statute that was enacted as part of a comprehensive program to eliminate the federal budget deficit. That act imposed, for a period of five years, a 50% excise tax on price of tickets to championship sporting events. The federal tax is probably A. constitutional, because the compelling national interest in reducing the federal budget deficit justifies this tax as a temporary emergency measure B. constitutional, because an act of Congress that appears to be a revenue raising measure on its face is not rendered invalid because it may have adverse economic consequences for the activity taxed C. unconstitutional, because a 50% tax is likely to reduce attendance at championship sporting events and, therefore is not ratiomally related to the legitimate interest of Congress in eliminating the budget deicit. D. unconstitutional, because Congress violates the equal protection component of the Fifth Amendment by singling out championship sporting events for this tax while failing to tax other major sporting events to which tickets are sold

B. constitutional, because an act of Congress that appears to be a revenue raising measure on its face is not rendered invalid because it may have adverse economic consequences for the activity taxed. Even though the 50% tax is high, *it is a proper use of congressional power to raise revenue through uniform taxation, despite any adverse economic effects that may result*.

A federal statute with inseverable provisions established a new five-member national board with broad regulatory powers over the operation of the securities, banking, and commodities industries, including the power to issue rules with the force of law. The statute provides for three of the board members to be appointed by the President with the advice and consent of the Senate. They serve seven-year terms and are removable only for good cause. The other two members of the board were designated in the statute to be the respective general counsel of the Senate and House of Representatives Committees on Government Operations. The statute stipulated that they were to serve on the board for as long as they continued in those positions. Following all required administrative procedures, the board issued an elaborate set of rules regulating the operations of all banks, securities dealers, and commodities brokers. A company that was subject to the board's rules, sought a declaratory judgment that the rules were invalid because the statute establishing the board was unconstitutional. In this case, the court should rule that the statute establishing the national board is A. unconstitutional, because all members of federal boards having broad powers that are quasi-legislative in nature, such as rulemaking, must be appointed by Congress. B. unconstitutional, because all members of federal boards exercising executive powers must be appointed by the President or in a manner otherwise consistent with the appointments clause of Article II. C. constitutional, because the Necessary and Proper Clause authorizes Congress to determine the means by which members are appointed to boards created by Congress under its power to regulate commerce among the states. D. constitutional, because there is a substantial nexus between the power of Congress to legislate for the general welfare and the means specified by Congress in this statute for the appointment of board members.

B. unconstitutional, because all members of federal boards exercising executive powers must be appointed by the President or in a manner otherwise consistent with the appointments clause of Article II. Under the statute, *two of the board members are not appointed pursuant to Article II, Section 2, which requires executive officers with administrative powers to be appointed by the President, typically with senatorial confirmation*. Here, two of the board members were designated solely by their membership on congressional committees, not appointed by the president or confirmed by the Senate as a whole.

Congressional hearings determined that the use of mechanical power hammers is very dangerous to the persons using them and to persons in the vicinity of the persons using them. As a result, Congress enacted a statute prohibiting the use of mechanical power hammers on all construction projects in the United States. Subsequently, a study conducted by a private research firm concluded that nails driven by mechanical power hammers have longer lasting joining power than hand-driven nails. After learning about this study, a city council enacted an amendment to its building safety code requiring the use of mechanical power hammers in the construction of all buildings intended for human habitation. This amendment to the city's building safety code is A. unconstitutional, because it was enacted subsequent to the federal statute. B. unconstitutional, because it conflicts with the provisions of the federal statute. C. constitutional, because the federal statute does not expressly indicate that it supersedes inconsistent state or local laws. D. constitutional, because the long-term safety of human habitation justifies some additional risk to the people engaged in their construction.

B. unconstitutional, because it conflicts with the provisions of the federal statute. The Supremacy Clause of the U.S. Constitution provides that a valid federal law controls when a state or local law conflicts with it. The law here is a valid exercise of Congress's commerce powers, and because the local law conflicts with it, the local law is unconstitutional.

prohibition against advisory opinions

Court will only hear cases involving actual adversaries — no mere hypothetical fact situations. There must be both: 1. An actual dispute between the adverse litigants, and 2. A substantial likelihood that a decision in favor of a claimant will have some effect (i.e., bring about some changes)

State A spends several million dollars a year on an oyster conservation program. As part of that program, the state limits, by statute, oyster fishing in its coastal waters to persons who have state oyster permits. In order to promote conservation, it issues only a limited number of oyster permits each year. The permits are effective for only one year from the date of their issuance and are awarded on the basis of lottery, in which there is no differentiation between resident and nonresident applicants. However, each nonresident who obtains a permit is charged an annual permit fee that is $5 more than the fee charged residents. A large fishing company operates from a port in another state and is incorporated in that other state. Each of the boats of the fishing company has a federal shipping license that permits it "to engage in all aspects of the coastal trade, to fish and to carry cargo from place to place along the coast, and to engage in other lawful activities along the coast of the United States." These shipping licenses are authorized by federal statute. Assume no other federal statutes or administrative rules apply. Although it had previously held a State A oyster permit, the fishing company did not obtain a permit in that state's lottery this year. Which of the following is the strongest argument that can be made in support of a continued right of the fishing company to fish for oysters this year in the coastal waters of State A? A. Because the state law provides higher permit charges for nonresidents, it is an undue burden on interstate commerce. B. Because the state law provides higher permit charges for nonresidents, it denies the fishing company the privileges and immunities of state citizenship. C. Because it holds a federal shipping license, the fishing company has a right to fish for oysters in state waters despite the state law. D. Because the fishing company previously held a State A oyster permit and the state knows that the company is engaged in a continuing business operation, the refusal to grant the fishing company a permit this year is a taking of its property without due process of law.

C. Because it holds a federal shipping license, the fishing company has a right to fish for oysters in state waters despite the state law. The Supremacy Clause ensures that any conflict between a valid federal law and a state law, as is the case here, the federal law will prevail and thus, the company will be able to continue fishing based on its federal license.

Congress enacted a statute prohibiting discrimination in the rental of residential property anywhere in the United States on the basis of sexual orientation or preference by any person or entity, public or private. Which of the following provisions provides the strongest basis for Congress's authority to enact this statute? A. The Enforcement Clause of the Fourteenth Amendment. B. The Privileges and Immunities Clause of Article IV. C. The Commerce Clause of Article I, Section 8. D. The General Welfare Clause of Article I, Section 8.

C. The Commerce Clause of Article I, Section 8. The statue regulating residential property rental terms, although it may individually occur intrastate, relates to economic activity that, in the aggregate, has a substantial effect on interstate commerce. The strongest basis for the statute's constitutionality is, therefore, the plenary congressional power to regulate interstate commerce.

A state owned and operated an electric power system, which included a nuclear power plant. In order to ensure the availability of sites for the disposal of spent fuel from the nuclear power plant, the state refused to supply electric power to out-of-state purchasers residing in states that would not accept spent fuel from the plant for storage or disposal. Assume that no federal statute applies. Which of the following is the strongest argument that the state's action is constitutional? A. A state may condition the sale to out-of-state purchasers of any products produced in that state on the willingness of those purchasers to bear the fair share of the environmental costs of producing those products. B. The generation of electricity is intrastate by nature and therefore subject to plenary state control. C. The state itself owns and operates the power system, and therefore its refusal to supply power to out-of-state purchasers is not subject to the negative implications of the Commerce Clause. D. The state's action is rationally related to the health, safety, and welfare of state citizens.

C. The state itself owns and operates the power system, and therefore its refusal to supply power to out-of-state purchasers is not subject to the negative implications of the Commerce Clause. Invoking the exception that allows states to prefer its own citizens when acting as a market participant is the strongest basis for the action's constitutionality because it renders the Commerce Clause limitations on state action inapplicable.

A newly enacted federal statute appropriates $100 million in federal funds to support basic research by universities located in the United States. The statute provides that "the ten best universities in the United States" will each receive $10 million. It also provides that "the ten best universities" shall be "determined by a poll of the presidents of all the universities in the nation, to be conducted by the United States Department of Education." In responding to that poll, each university president is required to apply the well-recognized and generally accepted standards of academic quality that are specified in the statute. The provisions of the statute are inseverable. Which of the following statements about this statute is correct? A. The statute is unconstitutional, because the reliance by Congress on a poll of individuals who are not federal officials to determine the recipients of its appropriated funds is an unconstitutional delegation of legislative power. B. The statute is unconstitutional because the limitation on recipients to the 10 best universities is arbitrary and capricious and denies other high-quality universities the equal protection of the laws. C. The statute is constitutional, because Congress has plenary authority to determine the objects of its spending and the methods used to achieve them, as long as they may reasonably be deemed to serve the general welfare and do not violate any prohibitory language in the Constitution. D. The validity of the statute is nonjusticeable because the use by Congress of its spending power necessarily involves political considerations that must be resolved finally by those branches of the government that are closest to the political process.

C. The statute is constitutional, because Congress has plenary authority to determine the objects of its spending and the methods used to achieve them, as long as they may reasonably be deemed to serve the general welfare and do not violate any prohibitory language in the Constitution Congress's spending power is plenary, and *Congress can choose how it spends its money so long as the choice can reasonably be said to serve the general welfare and not violate any Prohibition in the constitution*.

A state legislature conducted an investigation into a series of fatal accidents in the state involving commercial trucks with exteriors made of polished aluminum. The investigation revealed that the sun's glare reflecting off these trucks blinded the drivers of other vehicles. In response, the state's legislature enacted a law prohibiting commercial trucks with polished aluminum exteriors from traveling on the state's highways. Litigation over the state law resulted in a final decision by the US Supreme Court that the law impermissibly burdened interstate commerce and therefore was unconstitutional. Congress later enacted a statute permitting any state to enact a law regulating the degree of light reflectiveness of the exteriors of commercial trucks using the state's highways. Is the federal statute constitutional? A. No, because the US Supreme Court has already determined that state laws of this type impermissibly burden interstate commerce. B. No, because Article III vests the judicial power in the federal courts, the essence of judicial power is the ability to render a final judgment, and this statute overrules a final judgment of the US Supreme Court. C. Yes, because Article I, Section 8 grants Congress authority to enact statutes authorizing states to impose burdens on interstate commerce that would otherwise be prohibited. D. Yes, because Article I, Section 8 grants Congress authority to not statues for the general welfare, and Congress could reasonably believe that state laws regulating the light reflectiveness of the exteriors of commercial trucks promote the general welfare.

C. Yes, because Article I, Section 8 grants Congress authority to enact statutes authorizing states to impose burdens on interstate commerce that would otherwise be prohibited. Congress has an extremely broad power to regulate under the Commerce Clause and *may have the authority to pass legislation that regulates an activity the Court previously struck down*. See, e.g., United States V. Darby, 312 US 100 (1941). The term-2Court has consistently regarded transportation as commerce. Therefore, the statute in this case, because it regulates trucks that are instrumentalities of interstate commerce, falls within Congress's Commerce Clause powers.

In response to a nationwide increase in drug-related crime, Congress passed a statute creating a new agency responsible for enforcing federal drug laws. The statute authorizes the President to appoint the agency's director with the advice and consent of the Senate and prohibits the President from removing the director without the Senate's consent. The President appointed a director, and the Senate confirmed the appointment. Recently, the President has become dissatisfied with the director's strict approach to drug-law enforcement and wishes to remove the director. Because a majority of senators favor strict drug-law enforcement, the Senate has refused to consent to the director's removal. May the President constitutionally remove the director without the Senate's consent? A. No, because Congress created the director position and may properly impose conditions for the director's appointment and removal. B. No, because the president's removal of principal officers of the United States is subject to the advice and consent of the Senate. C. Yes, because congressional participation in the decision to remove a presidential appointee violates the separation of powers. D. Yes, because Congress cannot limit the ability of the president to remove any employee of the executive branch.

C. Yes, because congressional participation in the decision to remove a presidential appointee violates the separation of powers. The Supreme Court has repeatedly held that *Congress shall not play any role in the removal of executive officers*. Myers v. United States, 272 U.S. 52 (1926); Bowsher v. Synar, 478 U.S. 714 (1986). Therefore, the President may constitutionally remove the director - a presidential appointee - without the consent of the Senate.

A federal statute imposes an excise tax of $100 on each new computer sold in the United States. It also appropriates the entire proceeds of that tax to a special fund, which is required to be used to purchase licenses for computer software that will be made available for use, free of charge, to any resident of the United States. Is this statute constitutional? A. No, because the federal government may not impose any direct taxes on citizens of the United States. B. No, because this statute takes without just compensation the property of persons who hold patents or copyrights on computer software. C. Yes, because it is a reasonable exercise of the power of Congress to tax and spend for the general welfare. D. Yes, because the patent power authorizes Congress to impose reasonable charges on the sale of technology and to spend the proceeds of those charges to advance the use of technology in the United States.

C. Yes, because it is a reasonable exercise of the power of Congress to tax and spend for the general welfare. Article I, Section 8, Clause I of the Constitution gives Congress broad power to tax and to spend for the general warfare. Courts deferred to reasonable Congressional taxing measures, such as the statute at issue, as well as to expenditures that reasonably further the general work there.

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.

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. Just as any validly-enacted federal law, *treaties are the supreme law of the land*. Any state action or law in conflict with the US treaty is invalid. Therefore, the President's proclamation nullifying the state law under the treaty is valid.

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 Fourteenth 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 Fourteenth 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 Fourteenth Amendments do not protect obscenity, and nude dancing is obscene.

C. Yes, because the action is not ripe. The owner's action is based on an uncertain and contingent future event - if the council hears the organization's views, the organization would then succeed in its lobbying efforts and subsequently violate his constitutional rights. Based on these facts, the matter has not sufficiently matured for the court to rule on it.

A city owned and operated an electric utility that supplied electricity to the city's businesses and residences. Citing the need for efficiency, the city implemented a plan to replace old electric meters with wireless meters in businesses and residences. The city's plan did not include advance notice to property owners or a method to obtain consent from property owners. A homeowner who opposed installation of the wireless meters was denied his request for a hearing on the city's plan. The homeowner then blocked the city's access to his house, obstructing the city's effort to replace the old meter. The city responded by threatening to arrest and prosecute the homeowner for disorderly conduct. The homeowner then sued the city in federal district court, challenging the meter-replacement plan on due process grounds and seeking to enjoin its enforcement. The city moved to dismiss. While the city's motion was pending, the city council passed an emergency ordinance requiring both prior notice and property owner consent before the removal or replacement of any electric meter. Should the court grant the city's motion? A. No, because the city's action is capable of repetition yer evading review. B. No, because the city's voluntary cessation of the challenged conduct does not moot the case. C. Yes, because the case is moot. D. Yes, because the case is not ripe.

C. Yes, because the case is moot. The only relief sought by the homeowner is no longer available, making the case moot. See Allready LLC v. Nike, Inc., 568 US 85 (2013).

A city's police officers shot and killed a plaintiff's friend as he attempted to escape arrest for an armed robbery he had committed. The plaintiff brought suit in federal district court against the police department and the city police officers invovled, seeking only a judgment declaring unconstitutional the state statute under which the police acted. That newly enacted staute authorized the police to use deadly force when necessary to apprehend a person who has committed a felony. In his suit, the plaintiff alleged that the police would not have killed his friend if the use of deadly force had not been authorized by the staute. The federal district court should A. decide the case on its merits, because it raises a substantial federal question B. dismiss the action, because it involves a nonjusticiable political question C. dismiss the action, because it does not present a case or controversy D. dismiss the action, because the Eleventh Amendment prohibits federal courts from deciding cases of this type

C. dismiss the action, because it does not present a case or controversy The *plaintiff does not have standing required to establish his stake in the case or controversy*, which is necessary for proper federal action. The plaintiff has not suffered an injury; it was a third party (his friend) who was shot and killed. Moreover, any injury the plaintiff does have from his friend dying cannot be redressed by a finding of unconstitutionality.

A state's legislature recently enacted a statute forbidding public utilities regulated by the state's public service commission to increase their rates more than once every two years. A power company, a public utility regulated by that commission, has just obtained approval of the commission for a general rate increase. The power company has routinely filed for a rate increase every ten to 14 months during the last 20 years. Because of uncertainties about future fuel prices, the power company cannot ascertain with any certainty the date when it will need a further rate increase; but it thinks it may need such an increase sometime within the next 18 months. The power company files an action in the federal district court in the state requesting a declaratory judgment that this new state statute forbidding public utility rate increases more often than once every two years is unconstitutional. Assume no federal statute is relevant. In this case, the court should A. hold the statute unconstitutional, because such a moratorium on rate increases deprives utilities of their property without due process of law. B. hold the statute constitutional, because the judgment of a legislature on a matter involving economic regulation is entitled to great deference. C. dismiss the complaint, because this action is not ripe for decision. D. dismiss the complaint, because controversies over state regulated utility rates are outside of the jurisdiction conferred on federal courts by Article III of the Constitution.

C. dismiss the complaint, because this action is not ripe for decision. *There is no injury yet to the power company*. It has not yet been denied a rate increase, and it does not even know whether it will need to seek a rate increase before the statute will allow it to. Therefore, there is not yet an actual or imminent injury, and the claim is not yet ripe for decision.

A state statute requires each insurance company that offers burglary insurance policies in the state to charge a uniform rate for such insurance to all of its customers residing within the same county in that state. So long as it complies with this requirement, a company is free to charge whatever rate the market will bear for its burglary insurance policies. An insurance company located in the state files suit in federal district court against appropriate state officials to challenge this statute on constitutional grounds. The insurance company wishes to charge customers residing within the same county in the state rates for burglary insurance policies that will vary because they would be based on the specific nature of the customer's business, on its precise location, and on its past claims. In this suit, the court should A. hold the statute unconstitutional, because the statute deprives the insurance company of its liberty or property without due process of law. B. hold the statute unconstitutional, because the statute imposes an undue burden on interstate commerce. C. hold the statute constitutional, because the statute is a reasonable exercise of the state's police power. D. abstain from ruling on the merits of this case until the state courts have had an opportunity to pass on the constitutionality of this state statute.

C. hold the statute constitutional, because the statute is a reasonable exercise of the state's police power The court should hold the statute constitutional here because it is a reasonable exercise of the state's police power. The state has a legitimate interest in regulating the sale of insurance. And, because *the limit the state puts on insurance companies is uniform and very minimal* (that it must charge a uniform rate to all customers within the same county but may charge whatever rate that the market will bear), *that limit is reasonable and not otherwise unconstitutional*. The treatment of all insurance companies is uniform, and the statute imposes no undue burden on interstate commerce because the same requirements apply to policies offered by all companies.

Radon is a harmful gas found in the soil of certain regions of the United States. A state statute requires occupants of residences with basements susceptible to the intrusion of radon to have their residences tested for the presence of radon and to take specified remedial steps if the test indicates the presence of radon above specified levels. The statute also provides that the testing for radon may be done only by testers licensed by a state agency. According to the statute, a firm may be licensed to test for radon only if it meets specified rigorous standards relating to the accuracy of its testing. These standards may easily be achieved with current technology; but the technology required to meet them is 50% more expensive than the technology required to measure radon accumulations in a slightly less accurate manner. The United States Environmental Protection Agency (EPA) does not license radon testers. However, a federal statute authorizes the EPA to advise on the accuracy of various methods of radon testing and to provide to the general public a list of testers that use methods it believes to be reasonably accurate. A recently established state firm uses a testing method that the EPA has stated is reasonably accurate. The firm is also included by the EPA on a list of testers using methods of testing it believes to be reasonably accurate. The firm applies for a state radon testing license, but its application is denied because the firm cannot demonstrate that the method of testing for radon it uses is sufficiently accurate to meet the rigorous state statutory standards. The firm sues appropriate state officials in federal court claiming that the state may not constitutionally exclude the firm from performing the required radon tests in the state. In this suit, the court will probably rule in favor of A. the firm, because the Full Faith and Credit Clause of the Constitution requires the state to respect and give effect to the action of the EPA in including the firm on its list of testers that use reasonably accurate methods. B. the firm, because the Supremacy Clause of the Constitution requires the state to respect and give effect to the action of the EPA in including the firm on its list of testers that use reasonably accurate methods. C. the state, because the federal statute and the action of the EPA in including the firm on its list of testers that use reasonably accurate methods are not inconsistent with the more rigorous state licensing requirement, and that requirement is reasonably related to a legitimate public interest. D. the state, because radon exposure is limited to basement areas, which, by their very nature, cannot move in interstate commerce.

C. the state, because the federal statute and the action of the EPA in including the firm on its list of testers that use reasonably accurate methods are not inconsistent with the more rigorous state licensing requirement, and that requirement is reasonably related to a legitimate public interest. The federal statute is very general and does not regulate radon testers to the extent of licensing them. Therefore, *the general federal statute does not conflict with the more rigorous state licensing standards*, and those licensing standards are not superseded by the federal law under the Supremacy Clause. Furthermore, the state's licensing requirement is constitutional because it is reasonably related to a legitimate public interest. *The federal statute does not conflict with the state statute. It provides less regulation of the area, rather than more.*

Necessary and Proper Clause

Clause of the Constitution (Article I, Section 8, Clause 3) setting forth the implied powers of Congress. - It states that Congress, in addition to its express powers, has the right to make all laws necessary and proper to carry out all powers the Constitution vests in the national government

ripeness doctrine

Court will not review administrative decision until it is 'ripe' for review. - the courts will not attempt to settle a controversy prematurely/before all the issues have been fully developed

A federal statute requires the National Bureau of Standards to establish minimum quality standards for all beer sold in the United States. The statute also provides that public hearings must precede adoption of the standards, and that once they are adopted, the standards will be subject to judicial review. While the proposed standards have not yet been announced, several Bureau officials have publicly expressed opinions indicating a belief that pasteurized beer is safer than unpasteurized beer. However, these officials have not stated whether they intend to include a pasteurization requirement in the standards. A brewery that produces unpasteurized beer is concerned that, after the appropriate proceedings, the Bureau may adopt quality standards that will prohibit the sale of unpasteurized beer. The brewery has sued in federal district court to enjoin the Bureau from adopting standards that would prohibit the sale of unpasteurized beer.How should the district court proceed with the suit? A. Determine whether the Bureau could reasonably believe that pasteurization is the safest process by which to brew beer and, if so, refuse to issue the injunction against the Bureau. B. Determine whether the process used by the brewery is as safe as pasteurization and, if so, issue the injunction against the Bureau. C. Refuse to adjudicate the merits of the suit at this time and stay the action until the Bureau has actually issued beer-quality standards. D. Refuse to adjudicate the merits of the suit and dismiss it, because it does not involve a justiciable case or controversy.

D. Refuse to adjudicate the merits of the suit and dismiss it, because it does not involve a justiciable case or controversy. The federal courts lack the power to entertain a suit that is not ripe for adjudication because such a suit does not present a "case" or "controversy" within the meaning of Article III, Section 2, Clause 1 of the Constitution. The district court should dismiss the suit because the Bureau has yet to announce the beer-quality standards, and therefore the case is not ripe. The court may not maintain jurisdiction over the suit by issuing a stay because it lacks the constitutional authority to retain control over the suit.

In response to the need for additional toxic waste landfills in a state, the state's legislature enacted a law authorizing a state agency to establish five new state-owned and state-operated toxic waste landfills. The law provided that the agency would decide the locations and sizes of the landfills after an investigation of all potential sites and a determination that the particular sites chosen would not endanger public health and would be consistent with the public welfare. A community in the state was scheduled for inspection by the agency as a potential toxic waste landfill. site. Because the community's residents obtained most of their drinking water from an aquifer that ran under the entire community, a citizens' group, made up of residents of that community, sued the appropriate officials of the agency in federal court. The group sought a declaratory judgment that the selection of the community as the site of a toxic waste landfill would be unconstitutional and an injunction preventing the agency from selecting the community as a site for such a landfill. The agency officials moved to dismiss. Which of the following is the most appropriate basis for the court to dismiss this suit? A. The case presents a nonjusticiable political question. B. The interest of the state in obtaining suitable sites for toxic waste landfills is sufficiently compelling to justify the selection of the community as a location for such a facility. C. The Eleventh Amendment bars suits of this kind in the federal courts. D. The case is not ripe for a decision on the merits.

D. The case is not ripe for a decision on the merits. The case arguably is not ripe for adjudication because *the agency's inspection does not itself pose any risk of harm* to residents of the community. The residents face a risk of harm only if the agency selects their community as a site for a landfill, but on these facts it is unclear whether or when the community would be selected.

After several well-publicized deaths caused by fires in products made from highly flammable fabrics, s state enacted a statute prohibiting "the manufacture or assembly of any product in this State which contains any fabric that has not been tested and approved for flame retardancy by the Zetest Testing Company." The Zetest Testing Company is a privately owned and operated business located in the state. For many years, a fabric mill, located in the state has had its fabric tested for flame retardancy by a competing testing company, located in a different state. The competitor is a reliable organization that uses a process for testing and approving fabrics for flame retardancy identical in all respects to that used by the Zetest Testing Company. Because the fabric mill wishes to continue to have its fabric tested solely by the competing testing company, the fabric mill files an action in its state court challenging the constitutionality of the statute as applied to its circumstances. In this suit, the Court should hold the statute to be A. Constitutional, because it is reasonably related to the protection of the reputation of the fabric industry located in the state. B. Constitutional, because it is a legitimate means of protecting the safety of the public. C. Unconstitutional, because it denies to the fabric mill the equal protection of the laws. D. Unconstitutional, because it imposes an unreasonable burden on interstate commerce.

D. Unconstitutional, because it imposes an unreasonable burden on interstate commerce. The court should hold the statute to be unconstitutional in this case because requiring that all fabric be tested by a single company imposes an unreasonable burden on commerce where companies in neighboring states use the same testing methods.

Congress enacted a statute directing U.S. ambassadors to send formal letters to the governments of their host countries, protesting any violations by those governments of international treaties on weapons sales. The President prefers to handle violations by certain countries in a less formal manner and has directed ambassadors not to comply with the statute. Is the President's action constitutional? A. No, because Congress has the power to implement treaties, and therefore the statute is binding on the President. B. No, because Congress has the power to regulate commerce with foreign nations, and therefore the statute is binding on the President. C. Yes, because Congress has no jurisdiction over matters outside the U.S. borders. D. Yes, because the President and his subordinates are the exclusive official representatives of the United States in foreign affairs.

D. Yes, because the President and his subordinates are the exclusive official representatives of the United States in foreign affairs. The President alone has the authority to represent the US in foreign affairs, and this statute in impedes upon and contradicts his exercise of that authority.

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.

D. Yes, because the order relates to the management of the executive branch and is not prohibited by any statute. The President may direct federal executive agencies, as he is doing here, as long as Congress is silent on the matter and the direction does not interfere with other branches. Here, Congress does not specify any requirements regarding business hours in the appropriation statute, so the president's order is constitutional.

A federal statute extends federal minimum wage requirements to all dry cleaning stores. The statute contains express findings that, when combined, the wages received by dry cleaning workers have a substantial impact on the national economy and on the flow of goods and services in interstate commerce. These findings are supported by information presented to Congress during committee hearings on the legislation. A small dry cleaning store operates exclusively within a community in the center of a geographically large state. It has no customers from outside the state. It employs three workers, each of whom is paid less than the federal minimum wage. Must this dry cleaning store comply with the statute imposing the federal minimum wage requirements on all dry cleaning stores? A. No, because the store does no business in interstate commerce. B. No, because the wages of the store's three workers do not have a substantial impact on interstate commerce. C. Yes, because the commerce clause vests Congress with plenary legislative authority over labor relations. D. Yes, because the wages paid by dry cleaning stores have a substantial impact on interstate commerce.

D. Yes, because the wages paid by dry cleaning stores have a substantial impact on interstate commerce. The Supreme Court has held that Congress has the power to regulate any activity, local or interstate, that has a substantial effect upon interstate commerce. As the facts state, the wages received by the dry cleaning workers have a substantial impact on the national economy and on the flow of goods and services in Interstate Commerce.

An interstate bus company operates in a five-state area. A federal statute authorizes the Interstate Commerce Commission (ICC) to permit interstate carriers to discontinue entirely any unprofitable route. The interstate bus company applied to the ICC for permission to drop a very unprofitable route through the sparsely populated Shaley Mountains. The ICC granted that permission even though the interstate bus company provided the only public transportation into the region. A man is the owner of a mountain resort in the Shaley Mountains, whose customers usually arrived on vehicles operated by the interstate bus company. After exhausting all available federal administrative remedies, the man filed suit against the interstate bus company in the trial court of the state in which the Shaley Mountains are located to enjoin the discontinuance by the interstate bus company of its service to that area. The man alleged that the discontinuance of service by the interstate bus company would violate a statute of that state prohibiting common carriers of persons from abandoning service to communities having no alternate form of public transportation. The state court should A. dismiss the action, because the man lacks standing to sue. B. direct the removal of the case to federal court, because this suit involves a substantial federal question. C. hear the case on its merits and decide for the man because, on these facts, a federal agency is interfering with essential state functions. D. hear the case on its merits and decide for the interstate bus company, because a valid federal law preempts the state statute on which the man relies.

D. hear the case on its merits and decide for the interstate bus company, because a valid federal law preempts the state statute on which the man relies. The man is suing under a state statute that forbids carriers from discontinuing routes to areas with no alternative means of public transit. This directly conflicts with a federal statute that authorizes transit companies to discontinue routes that are not profitable. Thus, the *federal statute will preempt the state statute under the Supremacy Clause*.

Intelligible Principle

Doctrine that requires Congress to provide agencies with legitimate, comprehensible guidelines to limit the authority of the agency when exercising delegated rule-making authority.

Market Participant Exception

If a state, city, or county is a *market participant*, then *it can discriminate against interstate commerce and impose unreasonable burdens*. The state can prefer in-state over out-of-state. Taxing power does NOT fit within the market participant exception. 3 ways for a state to act like a private enterprise: 1. State as a *buyer*. 2. State as a *seller* (exception only applies for first sale, doesn't extend "downstream"). 3. State as an *employer*. (State's refusal to hire out-of-state employees would not violate the dormant commerce clause but it would violate the Privileges and Immunities Clause).

Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

market regulation

The role of government in setting basic rules for market competition that businesses have to follow

Eleventh Amendment

WHO CAN SUE WHO When states sue other states, it automatically goes before the Supreme Court. Residents of one state cannot sue another state. Another country can't sue the US and vice versa.

The vaccination of children against childhood contagious diseases (such as measles, diptheria and whooping cough) has traditionally been a function of private doctors and local and state health departments. Because vaccination rates have declined in recent years, especially in urban areas, the President proposes to appoint a Presidential Advisory Commission on Vaccination which would be charged with conducting a national publicity campaign to encourage vaccination as a public health measure. No federal statute authorizes or prohibits this action by the President. The activities of the Presidential Advisory Commission would be financed entirely from funds appropriated by Congress to the Office of the President for "such other purposes as the President may think appropriate." May the President constitutionally create such a commission for this purpose? A. Yes, because the president has plenary authority to provide for health, safety, and Welfare of the people of the United states. B. Yes, because this action is within the scope of executive authority vested in the President by the Constitution, and no federal statute prohibits it. C. No, because the protection of children against common diseases by vaccination as a traditional State function and, therefore, is reserved to the states by the 10th amendment. D. No, because Congress has not specifically authorized the creation and support of such a new federal agency.

Yes, because this action is within the scope of executive authority vested in the President by the Constitution, and no federal statute prohibits it. The president may set up this advisory commission *pursuant to the scope of his powers as chief executive*. Moreover, *no federal statute has prohibited it*, and *even though Congress shares the power to legislate in this arena, it has authorized him by appropriating funding for this purpose*

ripeness

a criterion used by courts to avoid hearing cases that depend on hypothetical future events

mootness

a criterion used by courts to avoid hearing cases that no longer require resolution

ex post facto law

a law that makes an act criminal although the act was legal when it was committed

plenary

absolute

sine die adjournment

adjournment for an indefinite period

administrative agencies

governmental bodies formed to *carry out* particular laws (executive)

stare decisis

let the decision stand (precedent)

market participant v. market regulator

participant: the government is entering a market in its proprietary capacity, as either a buyer or seller of goods or services regulator: the government is using its coercive power to dictate the ways in which the governed conduct their business or other activities

in rem proceeding

refers to a lawsuit or other legal action directed toward property, rather than toward a particular person

Dormant Commerce Clause

restriction on states' authority to pass laws that substantially affect interstate commerce

Sixth Amendment

right to a speedy trial; right to trial by an impartial jury

strict test

to be constitutional, a state or local law must advance a legitimate state or local interest and there must be no reasonable nondiscriminatory alternative means available to advance that interest. On numbers of occasions, the Court refers to this test as a *"rule of virtual per se invalidity"* because of how difficult it is to satisfy in the dormant Commerce Clause context.

Congress & general welfare

while congressional spending that is deemed necessary and proper MUST be in service of the general welfare, *Congress has no independent right to regulate for the general welfare*