Constitutional Law I 2022 Quizzes

Congress wishes to incentivize the purchase of automobiles that have low emissions. It realizes that in order to create a market, enough hybrids and plug-in electric cars have to be sold for manufacturers to realize economies of scale and begin to reduce the prices of the cars. Congress, therefore, passes legislation that imposes a $10,000 environmental mitigation fee on the purchase of cars powered by internal combustion engines. The legislation prohibits reducing the sales price of cars to mitigate the cost to the purchaser. The revenue from the fee is collected by the Environmental Protection Agency, which uses it to subsidize alternative energy projects. Carmakers and dealers challenge the constitutionality of the fee in federal court. Which of the following would be least useful in defending the constitutionality of the fee? (A) Congress's power to regulate for the general welfare (B) The Necessary and Proper Clause (C) The Commerce Clause (D) The Taxing Clause

(A) Congress's power to regulate for the general welfare The correct answer is A. The powers of Congress are limited to those listed in Article I, plus any implied powers authorized by the Necessary and Proper Clause. Unlike state legislatures, Congress has no plenary police power to enact laws for the health, safety, and general welfare of its citizens. If it did, the enumeration of the other powers would be superfluous. B, C, and D would all be useful to defend the fee.

In 1989, Congress enacted a law providing that "no limitations on the sale of genetically modified food may be imposed by the United States except by an act of Congress." Last year, after a serious public health scare related to genetically modified vegetables, Congress adopted a new law authorizing the President to take "any necessary and appropriate action to protect the safety and security of the national food supply." Five days after the law was enacted, the President issued an executive order "pursuant to her executive powers under Article II" that severely restricts the production or sale of genetically modified food within the United States for a 90-day period until their safety can be assured." In the weeks after the executive order, Congress took no action to endorse, overrule, or condemn the President's executive order. A manufacturer of genetically modified food, filed suit alleging that the President exceeded her Article II powers when she issued the executive order. A reviewing court is most likely to hold that the executive order is: (A) Constitutional, because Congress explicitly or implicitly approved of the President's actions. (B) Constitutional, because the executive order falls within the scope of the President's Commander-in-Chief power. (C) Unconstitutional, because Congress explicitly or implicitly disapproved of the President's actions. (D) Unconstitutional, because Article II does not contain any explicit textual provisions related to food safety.

(A) Constitutional, because Congress explicitly or implicitly approved of the President's actions. The correct answer is A. The facts of this case closely mirror the facts in Hamdi, where the Court applied Justice Jackson's tripartite Youngstown framework in the context of two separate statutes that potentially applied to the President's actions. Here, the context of the new law (a public health scare in response to genetically modified food), the lack of any affirmative efforts by Congress to express disapproval of the executive order, and the law's similarity to the Authorization for the Use of Military Force's language that the Court relied on in Hamdi all suggest that the President's actions fall within the scope of Youngstown Category 1 and will likely be upheld. B is incorrect because the President's actions do not involve use of the military or a theater of war. C is incorrect because it is more likely that a reviewing court would classify the President's actions as falling within Youngstown Category 1, not Youngstown Category 3. D is incorrect because, under Justice Jackson's opinion in Youngstown, executive power can extend beyond the limited range of powers explicitly referenced in Article II—specifically, when the President acts with the express or implied approval of Congress.

Congress enacts a block grant program that makes $4 billion of additional federal funds available to states that demonstrate a commitment to repairing their infrastructure. In order to apply for the grants, the statute explicitly requires a state to show that they have brought 70% of the bridges within their state up to federal safety standards established by the U.S. Department of Transportation. A Governor challenges the constitutionality of the grant program. A reviewing judge is most likely to declare the grant program: (A) Constitutional, because it is a permissible use of Congress' spending power. (B) Constitutional, because the grant operates as a tax and not a penalty. (C) Unconstitutional, because the grant program impermissibly coerces states to comply with federally mandated standards. (D) Unconstitutional, because infrastructure maintenance is a traditional state function.

(A) Constitutional, because it is a permissible use of Congress' spending power. The correct answer is A. B is incorrect because the grant program involves spending, not taxing, and therefore the distinction between a tax and a penalty is not legally relevant. C is incorrect because unlike the Medicaid grant program struck down by the Court in NFIB v. Sebelius, this grant program does not involve a coercive threat by the federal government to withhold a significant amount of existing transportation funds if a state fails to meet the criteria. D is incorrect because the Court rejected the traditional state function test as a federalism-based limit on federal action when it overturned Garcia in National League of Cities.

The year is 1850. A state adopts a law declaring a particular religion to be its official state religion. Residents of the state belonging to another faith community file a lawsuit in federal court asserting that the law violates the First Amendment's Establishment Clause. A reviewing court is most likely to declare the law: (A) Constitutional, because the First Amendment does not impose any restrictions on the state. (B) Constitutional, because there is no state action. (C) Unconstitutional, because the law singles out a particular religious denomination for preferential treatment. (D) Unconstitutional, because the law is potentially coercive to persons who do not practice the religion declared to be the official state religion.

(A) Constitutional, because the First Amendment does not impose any restrictions on the state. The correct answer is A. The key point here is that the case is brought in 1850, before the Establishment Clause (or any of the Bill of Rights) had been incorporated against the states. The rule at the time was articulated by Barron v. Baltimore, which held that the provisions of the Bill of Rights, including the First Amendment, only imposed limits on actions taken by the federal government, not the states. While Barron has since been overruled, it was binding law prior to the Court's adoption of the "selective incorporation" approach during the 20th Century. As a result, a reviewing judge in 1850 would find the state's law constitutional under the First Amendment, while a judge deciding the case today would strike down the law. B is incorrect because there was clearly state action when the state legislature enacted the law. C and D are incorrect because they contradict the holding in Barron v. Baltimore.

Recently, Congress established a committee within the Department of Defense to recommend areas where cuts could be made in the defense budget. According to the legislation, the committee—composed of individuals nominated by the President, the Speaker of the House, and the President of the Senate—makes recommendations, which then are subject to an up-or-down vote in Congress. No amendments are permitted to the recommendations. The goal is to make decisions unclouded by political considerations. After the first round of cuts were voted upon, a contractor whose project was cancelled on recommendation of the committee sued, claiming that the committee was unconstitutional. A reviewing court should: (A) Find for the contractor, because the committee's composition violated the Appointments Clause. (B) Find for the contractor, because the creation of the committee exceeded Congress's Article I powers. (C) Dismiss the suit, because Congress has the authority to establish the military's budget. (D) Dismiss the suit, because the suit was not ripe.

(A) Find for the contractor, because the committee's composition violated the Appointments Clause. It is a cardinal separation of powers principle that members of the legislative branch may not have a role in the appointment or removal of executive branch officials (other than Senate confirmation or impeachment and conviction). Therefore, A is the correct answer. "See, e.g., Buckley v. Valeo." B is incorrect because the establishment of the committee would be necessary and proper to Congress's Article I power to raise and support armies. While Congress does have the power to establish the military's budget, C is incorrect because it does not follow from that that Congress can secure a role for itself in the selection of the personnel staffing the committee recommending the cuts. D is incorrect because no further factual development is necessary for a court to decide the controversy.

Oranges are among the most valuable agricultural crops in State A. Its growers have invested in developing a grading system that is regarded as the industry's gold standard, superior even to that of the federal government. State A exports its oranges to, among other states, neighboring State B, which likewise grows oranges but does not have a separate grading system. Recently State B's Secretary of Agriculture promulgated a regulation prohibiting the use of any but the federal grading system on oranges sold in the state. State A growers sue in federal court, claiming that the regulation is unconstitutional. A reviewing court should: (A) Find for the growers because the regulation discriminates against the out-of-state oranges in its effects. (B) Find for the growers because the burden on interstate commerce clearly exceeds any possible local benefit. (C) Find for State B because the regulation is facially neutral. (D) Find for the State B because it is a valid exercise of the police power.

(A) Find for the growers because the regulation discriminates against the out-of-state oranges in its effects. Under the dormant Commerce Clause doctrine, laws that discriminate in their purposes or effects are subject to a version of strict scrutiny that requires the state to demonstrate that the law's aim is legitimate and that there are no less discriminatory means available to effectuate that end. While here the law is facially neutral, its effects deprive State A's oranges of their competitive advantage and level the playing field to the advantage of State B's oranges. This case is much like Hunt v. Washington Apple Ad Comm'n, where the Court held that that North Carolina violated the dormant commerce clause in prohibiting apple growers from using the more stringent State of Washington apple grading system through an ostensibly neutral rule that in fact disadvantaged Washington State apple growers. Therefore, the best answer is A. B is incorrect because it recites the standard of review for truly nondiscriminatory, but burdensome, laws. C is incorrect because facial neutrality does not foreclose the application of strict scrutiny, as noted above. D is incorrect because exercises of the police power are not immune from dormant Commerce Clause scrutiny.

In response to international pressure, the United States Congress recently voted to close "black sites" around the world where high-value detainees suspected of terrorism are held and relocate their occupants to the United States for trial or to be released. Congress gave the director of Homeland Security the authority to review individual cases and, if the director certifies that the detainee is no longer a danger to the United States or its citizens, release the detainee to his home country or any other country willing to take him. However, under the legislation, if one house of Congress expresses disagreement with the director by passing a resolution, the detainee may not be released. One of the detainees whose release was held up because of a House resolution expressing disapproval of the director's decision sues in federal court alleging that his continued detention is unconstitutional. A judge hearing the case should rule: (A) For the detainee, because the resolution did not meet the Constitution's bicamerality and presentment requirements. (B) For the detainee, because the legislation was an unconstitutional delegation of power by Congress. (C) For the government, because the legislation containing the one-house veto passed both Houses of Congress and was signed by the President. (D) For the government, because the one-house veto allows Congress to exercise oversight of the agency carrying out congressional directives.

(A) For the detainee, because the resolution did not meet the Constitution's bicamerality and presentment requirements. The facts here are similar to those in "INS v. Chadha," in which the Court held the one-house veto to be unconstitutional. Here, too, Congress has attempted to reserve a veto over the exercise of discretion conferred on an executive branch official by Congress. As in "Chadha," the legislative veto violates the requirement that actions changing a person's legal status must pass both houses of Congress (bicamerality) and be sent to the President for his signature or veto (presentment). Therefore A is the best answer. B is incorrect because there is an intelligible principle guiding the director's exercise of discretion (viz., whether the detainee is a danger or not any longer). C and D are two of the arguments for the legislative veto's constitutionality that Justice White made in his "Chadha" dissent. The majority, however, found that the importance of Article I, section 7's lawmaking requirements trumped those considerations.

As part of a statewide infrastructure program, a state constructed and operated a factory that made bricks, cinder blocks, and other building material. The output was considered to be of high quality with numerous out-of-state contractors placing orders with the state factory. During a recent shortage, however, the factory refused to fill any out-of-state orders before in-state orders were filled. An out-of-state contractor sued in federal court, claiming that the new policy was unconstitutional. How should a reviewing judge rule? (A) For the state, because it is a market participant. (B) For the state, because it can favor its own citizens in times of shortage. (C) For the contractor, because the policy is facially discriminatory. (D) For the contractor, because the burden on interstate commerce is excessive.

(A) For the state, because it is a market participant. When a state acts as a market participant, as opposed to a market regulator, it may favor in-state interests over those from out-of-state in ways that the dormant Commerce Clause doctrine would otherwise prohibit. By building a factory with its taxpayers' money and selling the products made there, the state is acting as a market participant and is entitled to discriminate in favor of state residents. Therefore, A is the correct answer. B is an incorrect statement of law. C is true, but the market participant doctrine is an exception to the rule holding that facially discriminatory laws are usually invalidated. D is wrong because it recites the wrong test under the dormant commerce clause.

Congress passed a law awarding pensions to combat veterans. Under this law, federal judges are to verify the veterans' status and length of service to determine the amount the applicants will receive, subject to review by the Secretary of Defense, who may raise or lower the amount and alter the eligibility status of individual applicants. Is the statute constitutional? (A) No, Congress may not interfere with the right of federal courts to enter final judgments. (B) No, because the act is not rationally related to the Article I power to raise and support armies. (C) Yes, because of the Necessary and Proper Clause. (D) Yes, because Congress may set the jurisdiction of the federal courts.

(A) No, Congress may not interfere with the right of federal courts to enter final judgments. The judicial power granted to federal courts in Article III includes the power to enter final judgments that are reviewable only by superior courts. The executive and legislative branches may not review or alter final judgments entered by federal courts. Therefore, the correct answer is A. B and C are incorrect because the legislation awarding pensions would be authorized by the Necessary and Proper Clause. D is incorrect because, although Congress does have the ability to alter the jurisdiction of lower courts and the appellate jurisdiction of the Supreme Court, it may not alter the decisions of those courts on matters over which they exercise jurisdiction.

After the President of the United States orders American troops into combat in Nation B without a formal declaration of war from Congress, an anti-war activist and American citizen, files a suit in federal court alleging that the military action violates the Constitution because the President has exceeded her commander-in-chief powers under Article II. In response, the President files a motion to dismiss. A reviewing court is most likely to: (A) Grant the motion to dismiss, because the activist's case is non-justiciable. (B) Grant the motion to dismiss, because the President is relying upon inherent executive power under the Constitution. (C) Deny the motion to dismiss, because the Constitution requires a declaration of war in order for the President to order troops into combat. (D) Deny the motion to dismiss, because the activist has a cognizable injury.

(A) Grant the motion to dismiss, because the activist's case is non-justiciable. The sole basis for the activist's injury is her status as a citizen and a taxpayer, which would be considered a generalized grievance under cases like United States v. Richardson. Because generalized grievances are not a sufficient basis to establish standing, a court would deem the activist's case non-justiciable. In addition, even if the activist did have standing, a court would likely grant the motion as non-justiciable under the political question doctrine. B and C are incorrect because a reviewing court would not reach the merits of a non-justiciable dispute. D is incorrect because the activist's injury is a generalized grievance, and she therefore lacks a constitutionally cognizable injury.

A resident of State N was subject to a police search he believes was motivated by racial profiling while he was on vacation in State O. Subsequently, the man filed a suit in federal court seeking an injunction forbidding the State O state police from engaging in racial profiling at any point in the future. During discovery, the man acknowledged that he had only been to State O once and did not have plans to return. State O then filed a summary judgment motion seeking to have the case dismissed. A reviewing court is most likely to: (A) Grant the motion, because the man's injury is insufficient to establish Article III standing. (B) Grant the motion, because the man can receive monetary damages for his injury. (C) Deny the motion, because plaintiffs in race discrimination cases are entitled to "special solicitude" when determining Article III standing. (D) Deny the motion, because the man's injury is sufficient to establish Article III standing.

(A) Grant the motion, because the man's injury is insufficient to establish Article III standing. The correct answer is A because in order to receive injunctive relief, the man must show, under City of Los Angeles v. Lyons, that there is a substantial likelihood that he will be harmed again in a similar way. Here, the man has no plans to return to State O, which the Court found significant when it denied the plaintiffs' standing in Lujan v. Defenders of Wildlife. Therefore, under Lyons and Lujan, James lacks an injury sufficient to establish Article III standing. B is incorrect because while the man would have standing to assert a damages claim (based on his past injury), the availability of damages is not relevant to determining whether he has an injury sufficient to maintain standing for injunctive relief. C is incorrect because plaintiffs in race discrimination cases are not entitled to a lower standard for establishing injury sufficient to meet Article III standing requirements. D is incorrect under both Lyons and Lujan.

State A is home to a number of picturesque state parks established and maintained at state expense. The parks employ rangers who oversee the parks and lead tour groups on hikes. The rangers are versed in state history, geology, and dendrology, and provide commentary on the features of the park and the history of the state. To be a State A state park ranger, however, one must be a resident of the State A. A recent applicant was rejected for an open ranger position because he was a resident of nearby State B. He sued in federal court, claiming that the State A law is unconstitutional. A reviewing judge should: (A) Invalidate the law under the Privileges and Immunities Clause of Article IV. (B) Invalidate the law, because the burdens on interstate commerce clearly exceed any local benefit. (C) Uphold the law, because State A is a market participant. (D) Uphold the law, because there is no federal legislation on point.

(A) Invalidate the law under the Privileges and Immunities Clause of Article IV. The Privileges and Immunities Clause of Article IV guarantees the right of nonresidents to compete with a state's residents for economic opportunities on the basis of substantial equality. The state must demonstrate a substantial reason exists for the discrimination and that the discrimination is substantially related to that reason, including why less discriminatory means are not feasible. While State A could set any qualifications it wishes for becoming a park ranger, it is not clear why state residency is one or why nonresidency renders one incapable of being an effective ranger. Therefore, the correct answer is A. B is incorrect because it states the standard of review for truly nondiscriminatory statutes under the dormant Commerce Clause doctrine. C is incorrect because there is no market participant exception to Article IV's Privileges and Immunities Clause. D is incorrect because restrictions on state power to regulate exist independent of express or implied preemption.

State A has a freedom of information act that permits citizens of State A to file requests for particular types of information that the state must then provide. A citizen of State B, a neighboring state, files a FOIA request and is denied because she is not a citizen of State A. She files suit in federal court claiming the citizens-only provision is unconstitutional. She alleges that the citizens-only provision violates her fundamental right to compete economically with state citizens. (She obtains property records for clients.) Testimony at trial reveals that the state adopted the citizens-only provision to reduce work for state employees and that much of the information sought was available from other, open sources. If the citizens-only provision is upheld, it would likely be because: (A) Its adoption was not motivated by a desire to discriminate against noncitizens. (B) The burden on interstate commerce is minimal. (C) The law is facially neutral. (D) The market participant exception to the Privileges and Immunities Clause immunizes the state law from challenge.

(A) Its adoption was not motivated by a desire to discriminate against noncitizens. The facts are basically those of "McBurney v. Young" (2013), in which the Supreme Court upheld Virginia's citizens-only FOIA. According to the Court, that Virginia was not motivated by economic protectionism meant that the purpose of the Privileges and Immunities Clause—to assure the right of noncitizens to compete economically with citizens on terms of substantial equality—was not offended. Thus, the correct answer is A. B is incorrect because the Privileges and Immunities Clause is not concerned with measuring the burden on interstate commerce. C is factually incorrect. D is incorrect because the Court has refused to import the market participant exception into its Privileges and Immunities Clause doctrine.

Alarmed at the increase in obesity rates among school-age children nationwide, Congress wants states to do more to combat childhood obesity and increase physical fitness. Which of the following may Congress not do in its attempts to address the problem? (A) Pass a law requiring states to mandate two and a half hours of physical activity a week at school for children in grades K-6. (B) Pass a resolution urging states to mandate two and a half hours of physical activity a week at school for children in grades K-6. (C) Condition federal funding for education on a state mandating two and a half hours of physical activity a week at school for grades K-6. (D) Withhold 10% of federal funds for education for states that do not mandate two and a half hours of physical activity a week at school for grades K-6.

(A) Pass a law requiring states to mandate two and a half hours of physical activity a week at school for children in grades K-6. The anti-commandeering principle prohibits Congress from conscripting state legislatures or state executive branch officials and forcing them to implement or execute federal programs. Attempting by law to force a state legislature to enact federal policy violates that principle, therefore A is the correct answer. Congress can request that states pass its policy and it may condition receipt of federal funds on a state's adoption of the federal government's preferred policy (as long as the conditional grant is not coercive). Therefore, B and C are incorrect. As in "Dole," Congress could withhold a portion of funds from states that choose not to enact the preferred federal policy. It is likely that 10% of federal educational funds is not "coercive," therefore, D is not the correct answer either.

Federal law prohibits the use of an instrumentality of interstate commerce to threaten another person. A defendant was convicted of violating that statute by using a telephone to threaten another person. She claims that her conviction was unconstitutional because both she and the victim were located in the same state. A reviewing court should: (A) Sustain her conviction, because Congress may regulate instrumentalities of interstate commerce, even if employed in a single state. (B) Sustain her conviction if, in the aggregate, threats of violence against others substantially affected interstate commerce. (C) Reverse her conviction, because the threat did not cross state lines. (D) Reverse her conviction, because a threat is not economic activity.

(A) Sustain her conviction, because Congress may regulate instrumentalities of interstate commerce, even if employed in a single state. Congress may regulate three broad categories of interstate commerce: (1) channels of interstate commerce, including persons and things moving therein; (2) instrumentalities of interstate commerce, like the telephone; and (3) purely intrastate activities that substantially affect interstate commerce. The instrumentality does not have to be "used in" interstate activity in order for Congress to regulate it, it is enough that it could be. The correct answer, therefore, is A. B is incorrect because proof of effects on interstate commerce is not required of either instrumentalities or channels. C is incorrect because the activity does not have to cross state lines in order for Congress to regulate it. D is incorrect because whether or not the activity is economic is relevant only when Congress is attempting to regulate purely intrastate conduct.

A foreign country with a poor human rights record, but which is an attractive place for multinational corporations to operate, becomes the focus of a grassroots campaign to encourage states in the United States not to do business with companies that do business in that country. State A passes a law that, among other things, bars the companies doing business in that country—defined as maintaining existing operations, expanding operations, or upgrading existing operations—from bidding on state contracts. After State A passes its law, Congress passes a similar law, but it defines doing business to exclude maintaining existing operations, on the theory that the presence of multinationals in the country gives the U.S. government some leverage to encourage the regime to alter its behavior. One of the companies with existing operations in the country, which is now barred from bidding on State A government contracts, sues, claiming that the State A law is invalid. If a reviewing court invalidates the State A law, it would likely be because: (A) The State A law is an obstacle to the attainment of congressional goals. (B) The State A law is expressly preempted by federal law. (C) It is impossible for the corporation to comply with State A law and the federal law. (D) The State A law regulates foreign commerce.

(A) The State A law is an obstacle to the attainment of congressional goals. The facts here are similar to those in "National Foreign Trade Council v. Crosby." The correct answer is A, which describes the implied preemption doctrine known as "obstacle preemption." Obstacle preemption does not require the federal and state laws to be in such direct conflict that compliance with one puts the actor in violation of the other. Rather, in obstacle preemption compliance with both state and federal regimes are possible, but the state regime contains terms that make it more difficult for the federal legislation to achieve the goals intended for it. Here federal sanctions were drawn more narrowly, in hopes of encouraging change; State A's regime, on the other hand, thwarts those goals, at least for businesses operating in the country that make contracts with State A. The facts don't indicate states are expressly preempted from having a sanctions regime, so B is incorrect. Moreover it is, as explained, not impossible to comply with both laws, so C is incorrect. D is incorrect because states are not categorically excluded from regulating foreign commerce unless in so doing they violate the dormant Commerce Clause doctrine or, as here, conflict with federal law.

The State of A's constitution mandates that state judges retire upon reaching age 70. Congress passes, and the President signs, legislation barring mandatory retirement ages for public and private employees in or affecting interstate commerce. The State of A sues the federal government, claiming that the law is unconstitutional. Which of the following statements is true? (A) The federal law prevails over the state constitution under the Supremacy Clause. (B) The state constitutional provision trumps a mere federal statute. (C) The federal law exceeds Congress's commerce power. (D) The federal law violates structural limits on Congress's commerce power because it attempts to regulate states as states.

(A) The federal law prevails over the state constitution under the Supremacy Clause. The correct answer is A. The Supremacy Clause states that any federal law passed pursuant to the Constitution trumps even a contrary state constitutional provision. B, therefore, is an incorrect statement of law. C is incorrect because Congress could likely rationally conclude that preventing persons 70 and over from having to leave their jobs, in the aggregate, substantially affected interstate commerce. D is incorrect because the statute regulates both public and private employers, which the Court has held is within Congress's power. "See Garcia v. San Antonio Metropolitan Transit Authority" (1985).

Congress recently passed an immigration reform bill that provides a "path to citizenship" for those in the country illegally, as long as they have not committed a crime while in the country and pay any taxes owed. Those who had been convicted of any federal or state crime, however, were immediately deported. The President criticized this portion of the bill and instructed the head of Immigration and Customs Enforcement not to deport persons convicted of misdemeanors or non-violent felonies. As originally drafted, the bill gave the President discretionary power to halt deportations, but that provision was removed from the final version. Several governors of states with large numbers of illegal immigrants sued the President over his order. A reviewing court would most likely: (A) Find for the President, because he has the power to take care that the laws be faithfully executed. (B) Find for the President, because he has plenary power in the field of foreign affairs. (C) Find for the governors, because Congress, not the President, has the power to make law. (D) Find for the governors, because the President is acting in direct opposition to the expressed will of Congress.

(D) Find for the governors, because the President is acting in direct opposition to the expressed will of Congress. This would be a "Category Three" situation under Justice Jackson's concurring opinion in "Youngstown Sheet & Tube v. Sawyer;" the President is acting contrary to the express will of Congress. Therefore, his power is at its "low ebb" and he possesses only his independent powers minus Congress's constitutional powers over the subject. The best answer, then, is D. The Take Care Clause is of no help to the President, because he is notenforcing the law that Congress passed. So A is not correct. B misstates the law, because Congress has power to "establish uniform rules of naturalization" given to it by Article I; in any event, this is not a "foreign affairs" matter. The question is one of domestic law because the legislation concerns the terms on which domestic citizenship is granted. C is not the best answer because, as Justice Jackson pointed out, congressional inaction can sometimes invite executive initiative that as a practical matter could become a gloss on presidential power if Congress does not object.

Congress passes a law under its commerce power giving Native American tribes the authority to open casinos on reservation land. It provides incentives for states to enter into compacts with the tribes to ensure adequate regulation and collection of certain taxes that would be paid to the states in which reservation casinos are located. Should states decline to negotiate with the tribes, the legislation contains a provision abrogating state sovereign immunity and enabling tribes to sue the states directly. The State of A is sued by a Native American tribe wishing to negotiate a compact to open a casino on reservation land located in the state. Which of the following statements about the federal legislation is true? (A) The legislation is unconstitutional, because Congress has no power under the Commerce Clause to abrogate state sovereign immunity. (B) The legislation is unconstitutional, because Congress has no power at all to abrogate state sovereign immunity. (C) The legislation is constitutional, because in the aggregate, Native American casinos located in states would substantially affect interstate commerce. (D) The legislation is constitutional, because Article I gives Congress the power to regulate commerce with the Native American tribes.

(A) The legislation is unconstitutional, because Congress has no power under the Commerce Clause to abrogate state sovereign immunity. The only constitutional provision that Congress may rely on to abrogate state sovereign immunity is its section 5 enforcement power of the Fourteenth Amendment. Thus, the correct answer is A, which was the holding of the "Seminole Tribe" case. B is an incorrect statement of law, as are C and D. While Congress does have the power to regulate commerce with Native American tribes, and casinos would, in the aggregate, substantially affect interstate commerce, it does not follow that Congress may waive a nonconsenting state's sovereign immunity using that power. Or so the Supreme Court has held.

State A is known for the abundance and variety of the edible sea life that live in the waters off its shores. Recently, however, the state has become concerned about population reduction among some of the more popular species, which the state attributes to overfishing. In an effort to restore the population, the state raised the price of commercial fishing licenses. In addition, it imposed a special "harm reduction fee" of $1000 on those who fish in State A's waters but are not citizens of the state. A commercial fisherman from the neighboring State B challenged the fee, claiming that it is a violation of his Privileges and Immunities. In defending its law, which of the following would be most helpful to the state? (A) The population reduction coincided with an increase in the number of out-of-state commercial fishermen seeking licenses. (B) In-state commercial fishermen lobbied for the imposition of the fee. (C) Fishing is recreation and not a fundamental right. (D) The state is trying to preserve its resources for its citizens.

(A) The population reduction coincided with an increase in the number of out-of-state commercial fishermen seeking licenses. The Privileges and Immunities Clause of Article IV guarantees, among other things, the right of noncitizens to compete on terms of substantial equality with other citizens. Where there is discrimination between citizens and noncitizens, the state must prove a substantial reason for the discrimination and that the discrimination is substantially related to the reasons for the differentiation, including the availability of less discriminatory means. The Court has sometimes phrased the state's burden as proving that noncitizens constitute a "peculiar source of evil" that necessitates the differential treatment. The correct answer, therefore, is A because it suggests that the out-of-state commercial fishermen contributed substantially to the decline in population. B is not helpful because it suggests a protectionist intent, which is precisely what the Privileges and Immunities Clause is intended to proscribe. C is incorrect because while the Clause protects only "fundamental rights" as opposed to "recreation," the facts indicate that these are commercial—not sport—fishermen. D, too, is incorrect because the state may not hoard resources and prevent noncitizens access to them.

Federal law requires colleges, including state universities, to report certain information to the federal government such as the number of crimes that occurred on campus. If a reviewing court upheld the reporting requirement against a suit alleging the requirement violated the Constitution, it would likely be because: (A) The requirement requires the purely ministerial reporting of information only. (B) The Supremacy Clause requires state compliance with all duly enacted federal laws. (C) In the aggregate, campus crime substantially affects interstate commerce. (D) It is valid under the Necessary and Proper Clause.

(A) The requirement requires the purely ministerial reporting of information only. In "Printz v. U.S.," the Court invalidated a provision of the Brady Bill requiring state and local law enforcement officials to perform background checks on prospective purchasers of handguns. The Court held that the requirement violated the "anti-commandeering" principle that prohibits conscription of state legislative and executive branch officials for the implementation of a federal program. However, Justice O'Connor's concurring opinion stated that "the Court appropriately refrains from deciding whether other purely ministerial reporting requirements imposed by Congress on state and local authorities pursuant to its Commerce Clause powers are similarly invalid." Based on this opinion, the correct answer, therefore, is A. B is incorrect because it assumes the matter in question, viz., whether the law is "duly enacted." C is incorrect because the anti-commandeering principle is a structural restrain on the commerce power. Even if Congress could use its commerce power to regulate the reporting of campus crime, it could not do so in a way that unconstitutionally commandeers state officials. D is incorrect for similar reasons—the invocation of the Necessary and Proper Clause is subject to the structural anti-commandeering principle.

To protest human rights abuses in a foreign country, a state passes a law prohibiting companies doing business with that country or its citizens who travel to that country from bidding on state contracts. Congress enacted a similar law, though its statute does not sanction individuals for merely traveling to that country. If a reviewing judge strikes down the state statute it is likely because: (A) The state statute poses an obstacle to congressional aims in the area of foreign policy. (B) The state statute is expressly preempted by the congressional statute. (C) It is impossible to comply with both federal and state laws. (D) Congress has preempted the field of civil rights law

(A) The state statute poses an obstacle to congressional aims in the area of foreign policy. The correct answer is A. "Obstacle" preemption is a form of implied preemption in which compliance with both state and federal law is possible but where the state law interferes in some way with congressional aims in an area of congressional power, such as by going farther than Congress intended to go with sanctions. B is incorrect because the facts do not indicate that Congress expressly preempted state law in the statute. C is incorrect because it is possible to comply with both the state and federal statutes. D is incorrect because Congress does not have the power to preempt state civil rights law regulation.

After a federal judge is convicted on impeachment charges by a majority vote in the United States Senate based on sexual harassment allegations by former law clerks, the judge files suit in federal court asserting that his impeachment conviction was unconstitutional because the harassment was not a "high crime and misdemeanor" under Article II. A court reviewing the suit is most likely to: (A) Dismiss the suit, because the case involves politics. (B) Dismiss the suit, because the case is non-justiciable. (C) Hear the suit, because Article II provides a federal judicial remedy for impeachment convictions. (D) Hear the suit, because the judiciary has the final authority to interpret what constitutional provisions mean.

(B) Dismiss the suit, because the case is non-justiciable. In cases like Nixon v. United States, the Court has indicated that legal challenges to impeachment proceedings are non-justiciable political questions. A is incorrect because cases that involve politics are not necessarily non-justiciable political questions—federal courts decide the merits of cases involving politics all the time. C is incorrect because the text of Article II makes no mention of a federal judicial remedy for impeachment convictions. D is incorrect because the Court has invoked political question doctrine in other disputes involving impeachment, suggesting that Congress has the final say about what the words "high crimes and misdemeanors" mean.

A company operates low-cost, same-day service for prescription glasses. In many states, it either employs optometrists directly or leases space to independent optometrists who screen patients and write prescriptions for eyeglasses. One of the states in which the company operates prohibits doctors (including optometrists) from being employed directly by corporations. It also prohibits indirect arrangements that accomplish the same end. The company uses independent contractor arrangements to provide optometrists to corporations in other states. Opticare sues in federal court to have the state law invalidated. A reviewing court should: (A) Uphold the law because the law does not distinguish between in-state and out-of-state corporations. (B) Uphold the law because courts will defer to state regulation of health professionals. (C) Strike down the law because it is discriminatory. (D) Strike down the law because the burdens on Opticare exceed the local benefits.

(A) Uphold the law because the law does not distinguish between in-state and out-of-state corporations. The best answer here is A. While probably passed to protect the livelihood of optometrists in the state, the state's ban on employment does not distinguish between in-state and out-of-state corporations and so would likely be upheld. B is incorrect because, while courts do defer to state regulation of health professionals, there is still a question in this case about whether the dormant Commerce Clause would prohibit the state's law. C is incorrect on the facts (there is no apparent discrimination against a protected category), and while D might be true, there are no facts about the costs and benefits. Moreover, D actually misstates the Pike balancing test. Under it, the burdens on interstate commerce must "clearly exceed" the local benefits claimed for the law.

State A is home to a number of large and successful Christmas tree farms. Lately, however, the trees grown at the farms have succumbed to a fungus that threatens the industry. State officials traced the source of the fungus to Christmas trees brought in from other states, though it has not been able to narrow the source of the fungus down further. To save the industry, the legislature has banned the importation, cultivation, and sale of Christmas trees that have come from other states pending further investigation. The owners of an out-of-state Christmas tree wholesaler sue in federal court, claiming that the law is unconstitutional. A reviewing court should: (A) Uphold the law if the state demonstrates that there are no less discriminatory means available to it to mitigate the spread of fungus. (B) Uphold the law because the benefits of the law are not clearly exceeded by the burdens on interstate commerce. (C) Strike down the law because it is facially discriminatory. (D) Strike down the law because the legislature had a protectionist motive.

(A) Uphold the law if the state demonstrates that there are no less discriminatory means available to it to mitigate the spread of fungus. Ordinarily, facially discriminatory laws are subjected to what the Court has termed a "virtually per se" rule of invalidity. However, at least in circumstances involving spread of a biological threat, if a state is pursuing a legitimate local purpose and there are no less discriminatory means available to it to effectuate that end, then the law will survive review. See, e.g., Maine v. Taylor. Here the facts suggest that the state has determined that out of state plants are a threat but doesn't know which out-of-state Christmas trees are a threat and thus is banning importation of all out-of-state Christmas trees until this can be determined. Thus the best answer is A. B recites the wrong standard of review because the statute is discriminatory on its face. C is incorrect because the state can probably satisfy the strict scrutiny to which facially discriminatory legislation is subject under the specific type of facts presented. D is incorrect; even if the state in part had a protectionist motive, the need to address a local biological threat allows it to survive constitutional review by analogy to the facts in Maine v. Taylor.

Congress passes legislation that appropriates foreign aid in the form of disaster relief and delegates power to the President to release the aid to foreign countries at his discretion. In deciding whether and how much aid to release, the legislation instructs the President to consider "the scale of the disaster in humanitarian terms" and the "state of relations between the recipient and the United States." Is the delegation of power to the President constitutional? (A) Yes, because the legislation furnishes an intelligible principle (B) Yes, because the President has the sole responsibility for foreign affairs (C) No, because legislative power may not be redelegated (D) No, because the standards provided for guidance are too vague

(A) Yes, because the legislation furnishes an intelligible principle Congress may delegate power to the executive branch as long as the delegation is accompanied by an "intelligible principle" that will guide the exercise of discretion. Intelligible principles can be quite broad and only twice since the New Deal has the Court found that delegation of power by Congress was unconstitutional. Therefore, A is the correct answer. The President is called on by the legislation to consider two factors in determining whether to release aid and in what amount. B is incorrect because Congress too has some say in foreign affairs, especially when it comes to allocating money for foreign aid or regulating foreign commerce. C is an incorrect statement of law. D is incorrect as well because intelligible principles can be framed in broad and general terms.

State A is a mecca for big game hunters. Tourists come from other states for guided hunts. State A limits the number of guide licenses to prevent overhunting; as a result, guides tend to make a good deal of money. State A recently passed a law prohibiting residents of states other than State A from obtaining state hunting guide licenses. Which of the following furnishes the strongest basis for a constitutional challenge to the statute? (A) The Due Process Clause (B) Article IV's Privileges and Immunities Clause (C) The Equal Protection Clause (D) The Full Faith and Credit Clause

(B) Article IV's Privileges and Immunities Clause The correct answer is B. Article IV, section 2 requires states, to treat non-citizens of the state substantially equally to their own citizens in cases involving "fundamental rights" such as the right to earn a living on terms of substantial equality with in-state residents. To avoid invalidation, a state would have to prove that there is a substantial reason for the differential treatment and that the distinction bears a substantial relationship to that reason. Neither A nor C would involve more searching review than the rational basis scrutiny. D is not so much incorrect as inapplicable on the facts given.

In response to complaints about a rash of mergers between U.S. and foreign companies driven by a desire to avoid the United States' high corporate tax rate, Congress authorized the director of the Internal Revenue Service to appoint a board of three experts who would review proposed mergers for business purpose. If the merger is found to be for a valid business purpose it is allowed to proceed. If, however, the board finds that the merger's main purpose is to minimize the payment of taxes, the corporation is subject to a one-time tax on earnings that can equal many millions of dollars. The members of the board, moreover, cannot be removed except for cause, and then only by the director of the IRS. A pharmaceutical company's proposed merger with a foreign company was found to be primarily for the purpose of reducing the pharmaceutical company's tax bill and taxed accordingly. The pharmaceutical company sues, claiming that the appointment of the board was unconstitutional because the members were not appointed by the President and confirmed by the Senate. Are the appointment and removal provisions for the board constitutional? (A) The appointment provision is constitutional, but the removal provision is not. (B) Both the appointment and removal provisions are constitutional. (C) The appointment provision is unconstitutional, but the removal provision is not. (D) Both provisions are unconstitutional.

(B) Both the appointment and removal provisions are constitutional. The appointment of this board and the removal provisions protecting its members would likely be constitutional under "Morrison v. Olson," therefore, B is the best answer. The appointment of inferior officials may be vested in the head of an executive branch department, such as the IRS. Whether an official is a principal or an inferior one depends on a number of factors: (1) whether the official can be removed by a higher-ranking official; (2) whether the officer has limited duties; (3) whether the office has a limited jurisdiction; and (4) whether the officer has a limited tenure. It is also relevant whether the official has a role in crafting policy. Here the board is charged with a single task: distinguishing between mergers that have a business purpose and those that merely seek tax advantages. The members can be fired, for cause, by the director of the IRS, and thus are subordinate. The board, moreover, is carrying out policy, not making it. The removal provision, like that in "Morrison," is constitutional as well because Congress had a good reason to want to make this board independent of the executive branch and established the board as an independent agency.

Country A underwent a violent civil war in which opposing sides were made up of ethnic groups that had comprised the country's population. One group managed to establish de facto control of a third of Country A and declared themselves to be the State of B, with a government, social services, and the like. The President of the United States instructed the State Department to recognize the State of B as a sovereign country and to open an embassy there. When the civil war began, however, Country A had lobbied Congress for legislation that declared the policy of the United States not to recognize any state claiming to exercise sovereignty over any part of Country A. The President sought a declaratory judgment in federal court that the law was unconstitutional. If a judge found in favor of the President, it would likely be because: (A) The President has exclusive control over foreign affairs. (B) Congress may not interfere with the President's power to recognize foreign governments. (C) The legislation exceeded Congress's Article I powers. (D) Congress may not negotiate treaties.

(B) Congress may not interfere with the President's power to recognize foreign governments. According to the recently decided "Zivitofsky v. Clinton," the correct answer is B. "Zivitofsky" held that Congress could not pass legislation requiring the State Department to indicate on U.S. passports that Jerusalem is a part of Israel at the request of the person to whom the passport will be issued. The President's power to recognize ambassadors is a solely executive power, and Congress cannot interfere with its exercise by the President. A is incorrect because it misstates the law. Congress, too, has a role to play in foreign affairs. C is incorrect because Congress could likely claim authority under its power to regulate foreign commerce. D is incorrect because Congress isn't negotiating a treaty here.

A public interest organization brought a civil suit in federal district court asserting violations of the federal Open Meetings Act by the executive branch. As part of the suit, the organization asked the court to issue a subpoena for written notes taken by the President during a meeting with foreign officials about a new trade agreement. The President responded by asserting executive privilege. A reviewing court is most likely to: (A) Deny the subpoena, because the President enjoys an absolute privilege over confidential documents. (B) Deny the subpoena, because in this situation, the President is entitled to deference in the assertion of executive privilege. (C) Grant the subpoena, because the need for the fair administration of justice outweighs the need for confidential communications. (D) Grant the subpoena, because the subpoena would not constitute an unwarranted impairment of the executive branch's ability to perform its constitutional duties.

(B) Deny the subpoena, because in this situation, the President is entitled to deference in the assertion of executive privilege. The correct answer is B because in United States v. Nixon, the Court stated that the President should receive "utmost deference" when asserting executive privilege over military and diplomatic communications. In addition, this case involves a civil suit rather than a criminal prosecution, and the Court suggested in Cheney v. U.S. District Court for the District of Columbia that the societal interests weighing in favor of disclosure are not as strong in a civil context. A is incorrect because the Nixon Court held that executive privilege is not an absolute privilege. C is incorrect because this situation involves diplomatic communications, which tilts the balance in favor of the President and maintaining the confidentiality of the communications. D is incorrect because Nixon strongly suggests that the disclosure of military and diplomatic communications would impede the executive branch's ability to perform its constitutional responsibilities.

Following a close vote in Congress resulting in its narrow passage, a law that authorizes electronic surveillance of those suspected of having ties to terrorist groups is signed by the President. A representative who voted against the bill alleging it was unconstitutional files suit in federal district court seeking a declaration that the act is, in fact, unconstitutional. The government's response asks the court to dismiss the suit because it lacks jurisdiction. The judge should: (A) Dismiss the suit, because it presents a political question. (B) Dismiss the lawsuit, because the congressman lacks standing. (C) Hear the lawsuit, because the claim was brought by a member of Congress. (D) Hear the lawsuit, because the representative suffered injury-in-fact.

(B) Dismiss the lawsuit, because the congressman lacks standing. The judge should dismiss the lawsuit because the congressman lacks standing. Contrary to the suggestion of C, members of Congress enjoy no exemption from Article III's requirements. A is incorrect because the merits of the suit would involve the usual process of constitutional adjudication. D is unsupported by the facts, which do not give any indication that the representative has suffered a concrete, particularized injury that is actual or imminent. Moreover, in addition to injury-in-fact, the harm must be fairly traceable to the defendant and be redressed by a favorable judicial ruling. That leaves B, which is the best answer.

A town has decided to contract with a private nonprofit corporation to provide educational services for elementary school students with behavioral problems. Under the arrangement, the town makes an annual lump sum payment to the corporation that covers approximately 85% of the annual operating expenses necessary to operate a school for the students. The school's policies are set entirely by the school's management committee, which is composed of three full-time employees of the corporation. After the school adopts a policy requiring teachers to swear a loyalty oath to the United States government, a teacher at the school, files a suit challenging the law under the First Amendment. After the suit is filed, the town files a motion to dismiss based on the lack of state action. A reviewing court is most likely to: (A) Grant the motion, because the school's associational interests outweigh the teacher's free speech interests. (B) Grant the motion, because there is no state action. (C) Deny the motion, under the public functions exception to the state action doctrine. (D) Deny the motion, under the entanglement exception to the state action doctrine.

(B) Grant the motion, because there is no state action. The correct answer is B. In Rendell-Baker, the Court held that there was no state action under similar circumstances, rejecting efforts to apply either the public functions exception or the entanglement exception. A is incorrect because the Court does not use a "balancing" test to determine whether there is state action. C is incorrect because the public functions exception only applies to functions that are traditionally and exclusively performed by the state. Since educational services have traditionally been provided by both public and private entities, the public functions exception does not apply. D is incorrect because extensive government subsidies alone are not usually sufficient to trigger the entanglement exception to the state action doctrine.

The President was impeached by the House after evidence surfaced that he had colluded with a foreign power to pursue a policy against a third country that was contrary to treaty obligations that the United States owed that country. Following a trial, the Senate convicted him and removed him from office by the requisite supermajority. The President then sued in federal court, claiming that he was denied due process and that the alleged offense, in any event, did not constitute a high crime or misdemeanor. Should the district court hear his case? (A) No, because the President lacks standing. (B) No, because the case presents a political question. (C) Yes, because the President suffered injury-in-fact. (D) Yes, because it the duty of the judicial department to say what the law is.

(B) No, because the case presents a political question. The Supreme Court has held that because the House and Senate are given the "sole" power to impeach and try impeachments, respectively, questions about impeachments are nonjusticiable. That means the correct answer is B. A and C are incorrect because the president has suffered a concrete and particularized injury (impeachment, conviction, and removal from office)—an injury fairly traceable to Congress and for which a court could provide redress. D is true, but the political question remains an exception to that general rule: the Court will not decide every case.

Article I gives Congress the power to "raise and support Armies" as well as "[t]o provide and maintain a Navy," but doesn't say anything about an air force. Is the United States Air Force unconstitutional? (A) No, because Congress may tax and spend for the general welfare (B) No, because the creation of an air force is necessary and proper to either the raising and supporting of armies or the provision and maintenance of a navy (C) Yes, because Congress's powers are expressly limited by Article I (D) Yes, because all powers not given to the federal government nor prohibited to the states are reserved to the states by the Tenth Amendment

(B) No, because the creation of an air force is necessary and proper to either the raising and supporting of armies or the provision and maintenance of a navy Congress not only has the powers delegated to it by Article I, but the Framers omitted the word "expressly" both from Article I's vesting clause, as well as from the Tenth Amendment's mention of powers granted to the federal government. Since "McCulloch v. Maryland," the Court has interpreted the Necessary and Proper Clause to permit the exercise of implied powers useful or expedient to the execution of Article I's powers. The best answer, therefore, is B. It is preferable to A because it is more "plainly adapted"—to use the language of "McCulloch"—to the permitted end (provision of armies and navies). C misstates the law; the omission of "expressly" was intentional on the Framers' part. Finally, while D is an accurate summary of the Tenth Amendment, it does not follow that the "powers . . . given to the federal government" is a closed set and is inconsistent with the doctrine of implied powers since "McCulloch."

What modality of constitutional interpretation best describes Chief Justice Marshall's opinion in McCulloch v. Maryland in which he holds that Maryland has no power to tax the Second Bank of the United States? (A) Textualism (B) Structural interpretation (C) Originalism (D) Doctrinal

(B) Structural interpretation The correct answer is B. Chief Justice Marshall's opinion is largely an inference from structure. Having concluded that Congress could charter a bank in the first part of the opinion, he then explained why Maryland couldn't tax it. While the power to tax includes the power to destroy, the power to create implies the power to preserve. This brought Maryland and the United States into conflict. Because Maryland was a part of the whole Union, and because the Constitution was the Supreme Law of the Land, Marshall argued that to permit Maryland to tax an institution created by representatives of the whole United States would be to make a part supreme over the whole. The usual restraint on abuses of the taxing power—the voters—was insufficient security, moreover, because the Bank wasn't represented in Maryland by those who would look out for its interests. Note that Marshall didn't really point to text that prohibited Maryland from taxing the bank, nor did he make an appeal to the intent of the Framers, nor was there a prior case on point that dictated the outcome. Therefore, A, C, and Dare incorrect.

Congress wishes to incentivize the purchase of automobiles that have low emissions. It realizes that in order to create a market, enough hybrids and plug-in electric cars have to be sold for manufacturers to realize economies of scale and begin to reduce the prices of the cars. Congress, therefore, passes legislation that imposes a $10,000 environmental mitigation fee on the purchase of cars powered by internal combustion engines. The legislation prohibits reducing the sales price of cars to mitigate the cost to the purchaser. The revenue from the fee is collected by the Environmental Protection Agency, which uses it to subsidize alternative energy projects. Carmakers and dealers challenge the constitutionality of the fee in federal court. For purposes of this question, assume that the government defends the fee as a valid exercise of the Taxing Power. Which of the following would be most helpful to the challengers? (A) The lack of a scienter requirement (B) The involvement of the EPA in the collection of the tax (C) The fact the fee is intended to change behavior and discourage the purchase of internal combustion engine automobiles (D) The fact that Congress could ban internal combustion engines directly

(B) The involvement of the EPA in the collection of the tax Based on cases like "Bailey v. Drexel Furniture Co." and "NFIB v. Sebelius," the best answer is B. "Bailey" and "NFIB" distinguish between a valid "tax" and a "penalty" that, if it is to be enacted, must rely on another of Congress's Article I powers. One of the factors cited by the Court in determining whether a nominal tax is, in fact, a "tax" for Article I purposes is who collects it. One would expect a valid tax to be collected, like other taxes, by the Internal Revenue Service. That this is collected instead by the EPA is at least some evidence that it is something other than a revenue-raising measure. A would be helpful to the "government," but not the challengers because lack of a "scienter" requirement is a point in favor of the measure being an actual tax, as opposed to a penalty. Finally, neither C nor D is helpful to the challengers because the Court has observed that any tax affects behavior to some degree and the fact that Congress can regulate behavior directly doesn't mean it can't also do so indirectly.

State A recently passed a law limiting the length of freight trains that passed through the state. The limits in the state law are stricter than those of any other state. A group of railroads challenged the law, claiming that the State A law would result in the expenditure of millions of dollars in either shortening the trains or rerouting them around the state. At trial, the evidence showed that the shorter freight trains did not appreciably reduce derailments or other accidents. If the state law is invalidated it would mostly likely be because: (A) The law discriminates against interstate commerce. (B) The law's burdens on interstate commerce clearly exceed its benefits. (C) The law directly regulates interstate commerce. (D) The law regulates a national subject that should be regulated by Congress, if at all.

(B) The law's burdens on interstate commerce clearly exceed its benefits. These facts track those of "Southern Pacific v. Arizona," in which the Supreme Court struck down Arizona's restrictive train-length law after finding that its effects on safety were minimal but that the costs to railroads would be substantial. If there is no demonstrable safety benefit and a burden placed on interstate commerce, then it is likely to be invalidated under the "Pike" balancing prong of the dormant Commerce Clause. Therefore, B is the correct answer. The law is not discriminatory because it does not treat in-state and out-of-state railroads differently. Therefore, A is incorrect. C and D are incorrect because each states an obsolete test for the permissibility of state regulations of interstate commerce. The latter is the "Cooley v. Board of Wardens"national/local subject test, which was succeeded by the direct/indirect test.

In response to a terrorist attack on American soil, the President dispatches troops to a foreign country to eliminate the bases from which those terrorists had planned and trained for the attack. After several months of combat, Congress, unhappy with the progress of the operation, establishes a "Committee on the Conduct of the War," which issues a report calling for generals to be fired, troop levels to be increased, and tactics to be changed. The report forms the basis for legislation instructing the President to carry out the report's recommendations. The President refuses, and members of Congress sue over his refusal. If a reviewing court invalidates the statute, it would likely be because: (A) The statute violates the War Powers Clause. (B) The statute infringes on the President's powers as Commander-in-Chief. (C) The statute infringes on the President's exclusive power over foreign affairs. (D) The statute violates the Militia Clause.

(B) The statute infringes on the President's powers as Commander-in-Chief. The best answer is B. Among the Commander-in-Chief's powers would be operational control of troops in the field through their officers. Congressional micro-management and insistence of a say in military operations would be inconsistent with that power. A is incorrect because there is no "War Powers Clause" in the Constitution. C is incorrect because it misstates the law. Congress, too, has a role in foreign affairs. It has the power to regulate foreign commerce and to declare war, for example; the Senate ratifies treaties and confirms ambassadors. D is incorrect because the power to call forth the militia and to organize, arm, and discipline it are powers given to Congress, not to the President, by Article I.

A large retailer with stores in all 50 states, decided not to stock a national men's magazine criticized for regularly featuring content that was offensive to women. The magazine sued, arguing that action violated its freedom of expression. If a federal judge dismisses the suit, it would be because: (A) Offensive speech is outside the First Amendment. (B) There is no state action. (C) The regulation is narrowly tailored to a compelling governmental interest. (D) The expression at issue is low-value speech.

(B) There is no state action. The correct answer is B. A private company's actions—absent narrow exceptions—do not trigger constitutional protections. A, C, and D either presume a state actor or state an incorrect rule of law.

Title 18, § 875(a) makes it a crime punishable by death to kidnap and murder a Supreme Court Justice. A man was convicted under this statute for the kidnapping and murder of a Supreme Court Justice that the man had labeled a "traitor" for his opinions. The man appeals his conviction, arguing that the statute under which he was convicted was unconstitutional. On appeal, a reviewing court should: (A) Reverse his conviction, because Article I does not expressly give Congress the power to legislate crimes. (B) Reverse his conviction, because punishing the murder of a Justice is not absolutely necessary to the creation and maintenance of the U.S. Supreme Court. (C) Affirm his conviction, because the criminalization of murdering a Supreme Court Justice is rationally related to the creation and protection of the Supreme Court. (D) Affirm his conviction, because Congress may criminalize conduct by exercising its general police powers.

(C) Affirm his conviction, because the criminalization of murdering a Supreme Court Justice is rationally related to the creation and protection of the Supreme Court. In "Sabri v. U.S.," Justice Breyer wrote that the Necessary and Proper Clause required little more than a rational connection between the power claimed and the Article I power to which it was said to be both necessary and proper. The best answer, then, is C. A misstates the law; Congress isn't limited to the powers expressly delegated in Article I. B is also incorrect. This was the position that Maryland took in the "McCulloch" case, which Chief Justice Marshall rejected. Finally, D is incorrect; while Congress has implied powers, it does not exercise plenary powers like state legislatures do.

An unsuccessful applicant to the state medical college sued the college in federal court, claiming that its use of race in admissions violated the Fourteenth Amendment. The applicant claimed that the admissions department attempted to match the percentages of racial minorities in each year's incoming class with the percentage of those minorities in the state population. While suit was pending, the reviewing court ordered the applicant to be admitted. The district court ruled for the applicant; the state appealed. While the case was on appeal, the applicant graduated. The reviewing court should: (A) Hear the case, because it is important to establish precedent. (B) Hear the case, because the applicant suffered injury. (C) Dismiss the case as moot. (D) Dismiss the case because the court would be rendering an advisory opinion.

(C) Dismiss the case as moot. Article III requires that cases before federal courts be live controversies between genuinely adverse parties with a genuine interest in the outcome. Because the student graduated, the case is moot and should be dismissed. Therefore, C is the best answer. A does not state a valid reason for a court to hear a case that has become moot. B is not correct because the applicant is no longer suffering an injury. D expresses one of the policies of mootness, but is not as good of an answer as C.

A plaintiff filed a civil action in federal court seeking monetary damages for defamation against a defendant. During jury selection, the defendant's attorney used peremptory challenges to exclude women from the jury, relying upon a federal statute that allows both parties a limited number of peremptory challenges during voir dire. After the challenges were allowed by the trial judge. The plaintiff challenged the attorney's actions as unconstitutional sex discrimination under the Equal Protection Clause. A reviewing court is most likely to hold that the Equal Protection Clause: (A) Does not apply to the attorney's actions, because the case involves two private parties and there is no state actor. (B) Does not apply to the attorney's actions, because the attorney's use of a remedy provided by a federal statute does not turn the attorney into a state actor. (C) Applies to the attorney's actions, because of the court's involvement in upholding the peremptory challenges. (D) Applies to the attorney's actions, because the attorney is an officer of the court.

(C) Applies to the attorney's actions, because of the court's involvement in upholding the peremptory challenges. The correct answer is C. Under Edmonson v. Leesville Concrete Co., the use of peremptory challenges in cases involving private litigants constitutes state action based on the government's involvement in the jury selection process. As a result, a private litigant's use of peremptory challenges is subject to constitutional limitations. A is incorrect because it directly contradicts the holding in Edmonson. B is incorrect because while this statement may be true in other situations, the Court has held that peremptory challenges are state actions subject to constitutional review. D is incorrect because actions by private attorneys are usually not considered state action, despite being officers of the court.

After a woman was injured in a workplace accident, she applied for federal disability benefits and was examined by a doctor employed full-time by the Social Security Administration to make recommendations to the agency about benefit eligibility. After the Social Security Administration denied the woman's application for benefits based on the doctor's initial examination, the woman filed numerous administrative appeals with the agency and lost. Later, after the woman discovered that a staff member at the Social Security Administration had appointed the doctor to her position, the woman filed a federal lawsuit alleging that he doctor's appointment violated the Article II Appointments Clause. A reviewing court is most likely to rule that he doctor's appointment is: (A) Unconstitutional under the Appointments Clause, because the doctor was not directly appointed by the President, a Court of Law, or a Head of Department. (B) Unconstitutional under the Appointments Clause, because the doctor performs an ongoing statutory duty. (C) Constitutional under the Appointments Clause, because the doctor does not exercise significant authority. (D) Constitutional under the Appointments Clause, because the doctor is performing a core executive function.

(C) Constitutional under the Appointments Clause, because the doctor does not exercise significant authority. The correct answer is C, because the doctor is considered an "employee" under the Appointments Clause and Congress is not constitutionally required to vest her appointment in the President, a Court of Law, or a Head of Department. In Lucia v. Securities and Exchange Commission, the Court applied a "significant authority" test to distinguish between "officers" (whose appointments must satisfy the Appointments Clause) and "employees" (whose appointments are not addressed by the Appointments Clause). Here, because the doctor's decisions are subject to multiple levels of appeal and because she is not the ultimate decision-maker, a reviewing court would likely find the doctor to be an "employee" because she lacks "significant authority," and therefore the Appointments Clause does not impose any limits on her appointment. A is incorrect because the doctor does not exercise "significant authority," and is therefore not considered an "officer" under the Clause. B is incorrect because performing an ongoing statutory duty is not sufficient to qualify as an officer under the Appointments Clause. D is incorrect because the question of whether the doctor is performing a "core executive function" is not legally relevant to the question of whether the doctor is an "officer" or an "employee" under the Appointments Clause.

In 2012, Congress enacted a statute which gives American citizens the ability to sue toy manufacturers in federal court for money damages arising from accidents involving defective toys that have traveled in interstate commerce. The statute also grants foreign toy manufacturers an affirmative defense if the accident involves a toy that was made outside the United States. In 2018, a group of parents filed a lawsuit under the statute against a British-owned toy company, after several children were injured playing with toys made by the company. In response, the company filed a motion to dismiss, asserting the statute's affirmative defense for foreign companies. While the company's motion to dismiss was pending before a federal judge, Congress amended the statute to remove the affirmative defense for British corporations. At the time the statute was amended, the company's case was the only action pending in federal court under the statute that involved a British company. The company responded by arguing that Congress violated the Constitution's separation of powers provisions when it enacted the 2018 amendment by effectively deciding the merits of a pending case. A reviewing court will most likely hold that the amendment is: (A) Unconstitutional, because Article III forbids Congress from dictating a rule of decision in a particular case. (B) Unconstitutional, because Congress cannot apply new legal standards to pending cases. (C) Constitutional, because Congress can amend legal standards in ways that affect the outcome of pending cases without improperly infringing on the judiciary's constitutional powers. (D) A non-justiciable political question, because the case involves foreign affairs.

(C) Constitutional, because Congress can amend legal standards in ways that affect the outcome of pending cases without improperly infringing on the judiciary's constitutional powers. The correct answer is C. In Bank Markazi v. Peterson, the Court held that, in similar circumstances, Congress can amend existing federal law and make the newly amended law applicable to pending federal cases without infringing on the constitutional prerogatives of the judicial branch. A is incorrect because while Article III prohibits Congress from telling a court how to apply preexisting law in a particular case, here Congress amended preexisting law that applies to all cases involving British companies without dictating a rule of decision in a particular case. B is incorrect because Bank Markazi holds that Congress can require courts to apply new law to pending cases without violating separation of powers. D is incorrect because while some constitutional disputes involving foreign affairs are considered non-justiciable political questions, the Court has reached the merits of countless cases involving federal statutes that affect the rights of foreign corporations.

In a recent omnibus appropriations bill, Congress allocated a $5 million grant to a state to build a new museum located within the state. After several media reports confirmed that the grant was included in the federal budget in order to encourage state's junior senator to vote for an unrelated environmental bill, plaintiffs filed a lawsuit in federal court alleging that Congress exceeded its constitutional powers in funding the museum. A reviewing court is most likely to hold that the grant is: (A) Unconstitutional, because the provision does not serve the general welfare. (B) Unconstitutional, because the conditional spending provision is coercive. (C) Constitutional, because the provision falls within the scope of Congress' Spending power. (D) Constitutional, because the provision falls within the scope of Congress' general police power.

(C) Constitutional, because the provision falls within the scope of Congress' Spending power. The correct answer is C because Congress maintains expansive authority to allocate federal funds under the taxing and spending clauses. A is incorrect because the Court generally defers to Congress' judgment about whether a particular expenditure serves the general welfare. B is incorrect because there is no conditional spending component within the grant. D is incorrect because Congress does not have a general federal police power. Even when making expenditures, Congress must rely upon an enumerated power—in this case, the taxing and spending clauses.

Despite being videotaped in public assaulting his spouse, a member of House of Representatives, defiantly refuses to heed calls that he resign. His colleagues vote to expel him from the House by a two-thirds vote, pursuant to Article I, section 5, clause 3 of the Constitution. ("Each House may determine the Rules of its Proceedings, punish its Members for disorderly behavior, and, with the Concurrence of two thirds, expel a Member.") The Representative sues the Speaker of the House and the House majority leader in federal district court claiming that his expulsion was actually for blowing the whistle on corruption in the House. The judge hearing the case should: (A) Hear the case, because the Representative has standing. (B) Hear the case, because it is a proper case for judicial review. (C) Dismiss the case, because the text of the Constitution commits to each House alone the discretion to expel members with a two-thirds vote. (D) Dismiss the case, because it is moot.

(C) Dismiss the case, because the text of the Constitution commits to each House alone the discretion to expel members with a two-thirds vote. A court would likely hold the question to be a nonjusticiable political question because the Constitution has textually committed power to discipline and expel members to each House. Although the Court did review and reverse the House of Representatives' refusal to seat Adam Clayton Powell in Powell v. McCormack, it held there that the issue was the exclusion rather than the expulsion of Representative Powell. There are also no ready judicial standards for separating valid from invalid reasons for discipline or expulsion. A is true, but not relevant. He can have standing and the issue can still be nonjusticiable. B is incorrect because it assumes the matter in question and the case is not proper for judicial review. D is incorrect because the case isn't moot as the Representative is attempting to be reinstated.

Despite being videotaped in public punching his wife, a husband, a member of the House of Representatives, defiantly refuses to heed calls that he resign. His colleagues vote to expel him from the House by a two-thirds vote, pursuant to Article I, section 5, clause 3 of the Constitution. ("Each House may determine the Rules of its Proceedings, punish its Members for disorderly behavior, and, with the Concurrence of two thirds, expel a Member.") The husband sues the Speaker of the House and the House majority leader in federal district court claiming that his expulsion was actually for blowing the whistle on corruption in the House. The judge hearing the case should: (A) Hear the case, because the husband has standing. (B) Hear the case, because it is a proper case for judicial review. (C) Dismiss the case, because the text of the Constitution commits to each House alone the discretion to expel members with a two-thirds vote. (D) Dismiss the case, because it is moot.

(C) Dismiss the case, because the text of the Constitution commits to each House alone the discretion to expel members with a two-thirds vote. This is a variation on "Powell v. McCormack." Recall that in that case the Court held that the political question doctrine did not apply to the House's decision to refuse to seat Adam Clayton Powell. Though the Constitution makes each house the judge of the qualification of its members, the Court held that it did not empower either house to add to the qualifications (age, citizenship, residency) that the Constitution specified. But note that the Constitution also gives to each house the power to expel a member with a two-thirds vote. This seems like a textually demonstrable commitment of power to another branch and the provision does not seem to specify limitations (aside from the two-thirds vote) on that power that could furnish judicially discoverable or manageable standards. Under "United States v. Nixon," then, the husband's expulsion looks nonjusticiable. A is incorrect because a party can have standing but the case still not be a justiciable one. B is incorrect because it assumes the matter in question. D is incorrect because the case is not moot; Frank still has an interest in being restored to his seat.

State A law requires that all private clubs that have a capacity of greater than 100 persons must be licensed by the state. In addition, licensees must comply with a lengthy list of state regulations. A bar, a licensed private club in State A, hosts a popular "Nation B Heritage Night" on Monday nights where persons of Nation B descent get in free but everyone else is charged a $10 cover. A non-Nation B patron at the bar sues the bar after she is forced to pay the $10 cover. Her complaint alleges that the cover charge violates the Fourteenth Amendment. A reviewing court is most likely to hold that that cover charge: (A) Violates the Constitution, because the policy does not serve a compelling interest. (B) Violates the Constitution, because there are less restrictive means available to achieve the compelling interest. (C) Does not violate the Constitution, because there is no viable constitutional claim. (D) Does not violate the Constitution, unless Jane's policy was motivated by animus against people who are not of Nation F descent.

(C) Does not violate the Constitution, because there is no viable constitutional claim. The correct answer is C. The bar is a private club, and under the state action doctrine, the Constitution (with very limited exception) only applies to the conduct of state actors. While the bar is licensed and regulated by the state, the Court held in Moose Lodge that licensing and regulating a business is generally not sufficient to turn the licensee into a state actor through the entanglement exception to the state action doctrine. A and B are incorrect because, as a private actor, the bar does not need to comply with the requirements of the Fourteenth Amendment. D is incorrect because the answer implies that the Constitution applies to a private actor like the bar. While the bar's policy may potentially violate federal, state, or local statutes, it does not violate the United States Constitution.

After the U.S. Department of Transportation issued a new regulation allowing automakers to opt out of federal airbag requirements for certain vehicle models, State A filed suit in federal court seeking to enjoin the regulation as a violation of the federal Administrative Procedure Act. State A's complaint alleges that the state will incur millions of dollars in additional medical costs if the rule is allowed to go into effect. In response, lawyers for the agency filed a motion to dismiss the suit, arguing that State A lacks Article III standing. A reviewing court is most likely to: (A) Dismiss the case, because State A's injury is speculative. (B) Dismiss the case, because State A is asserting a generalized grievance. (C) Hear the case, because State A has Article III standing. (D) Hear the case, because State A has third-party standing.

(C) Hear the case, because State A has Article III standing. A is incorrect because Massachusetts v. EPA, the Court held that states like State A are entitled to "special solicitude" in standing analysis, and that the threshold for establishing a constitutional cognizable injury is lower for state plaintiffs than it would be for individual plaintiffs. B is incorrect because State A's claim of injury is based on specific costs to the state treasury, not a general obligation to comply with the law. D is incorrect because State A is asserting standing based on direct harm to its own state treasury, not based on injuries to third parties or State A residents.

Article I, § 9, cl. 7 states that "a regular Statement of the Receipts and Expenditures of all public Money shall be published from time to time." The budget of the intelligence community, however, is classified and never published. A concerned citizen files suit against the proper parties in federal court alleging that the classification of the intelligence budget is unconstitutional and should be made public. Should a judge hear the case? (A) Yes, because violation of an explicit constitutional provision is a concrete and particularized harm. (B) Yes, because the unconstitutional expenditure of taxpayer money is a concrete and particularized harm. (C) No, because the plaintiff lacks standing on account of lacking a sufficiently personal injury. (D) No, because a favorable judicial decision would not redress the plaintiff's alleged harm.

(C) No, because the plaintiff lacks standing on account of lacking a sufficiently personal injury. Under current standing doctrine a mere desire to see the laws followed by public officials is not sufficient to satisfy the concrete and particularized injury element of Article III standing. Such "injuries" are deemed to be generalized grievances that ought to be redressed through the political process. That eliminates A and B as answers. D is incorrect because theoretically an order to publish the budget from a court would redress the harm; but as noted, the injury is insufficiently personal to satisfy Article III. That leaves C as the correct answer.

The State of A imposes a 5% sales tax on all goods purchased in the state. The federal government purchased a fleet of automobiles in the State of A for use by its employees in that and in other states. Must the federal government pay the sales tax? (A) Yes, because the tax is not discriminatory (B) Yes, because the tax is intended to raise revenue and is not a penalty (C) No, unless Congress consents (D) No, because it discriminates against interstate commerce

(C) No, unless Congress consents States may not tax instrumentalities of the federal government directly without congressional consent, though they may lay indirect taxes—for example, states can make federal employees pay a nondiscriminatory income tax. The correct answer is C. A is incorrect because it is not a sufficient condition for the exercise of taxing power by a state. B gives the standard used to evaluate whether "Congress" is validly exercising "its" taxing power. D is incorrect because nothing in the facts indicates that the tax is discriminatory.

President promises Secretary that he will appoint him to the next vacant judgeship in his administration. When the vacancy opens, it is that of the Chief Justice of the United States. President decides to appoint Senator instead to become Chief Justice. Secretary sues in federal court claiming that the President promised him the next vacancy. A reviewing court should find for: (A) Secretary, because his legal rights to the position were violated when President broke his promise. (B) Secretary, if he can demonstrate that he relied to his detriment on President's promise. (C) President, because the Constitution gives the President the power to make appointments in his discretion, and exercise of that discretion is not reviewable by the court. (D) President, because the President is immune from suit.

(C) President, because the Constitution gives the President the power to make appointments in his discretion, and exercise of that discretion is not reviewable by the court. The correct answer is C. The court in "Marbury v. Madison" made a careful distinction between the judicial power to remedy violations of vested rights and its power to police exercises of discretion committed to political actors by the Constitution. The Constitution gives the President the power to make appointments; while President might be a cad for welching on his promise to Secretary, the latter had no right to the position and the court has no role in supervising the President's exercise of his power. Therefore, A is incorrect. Whether Secretary relied on Adams's promise or not has no bearing on whether the President's failure to appoint Secretary can be reviewed by a court, so B is incorrect as well. While the President does have some judicial immunity from civil suits for official actions, it is incorrect to say, as D does, that the President has some kind of blanket immunity from any and all lawsuits.

In response to concerns that the government's efforts to mitigate climate change need coordination, Congress creates the Department of Climate Change Coordination, headed by a secretary of Climate Change who is appointed by the President and confirmed by the Senate. The enabling legislation details the risks associated with climate change and instructs the secretary to promulgate regulations that will ensure coordination across governmental departments and create uniform policies that will "aid in the mitigation of climate change." The policy coordination results in new restrictions placed on the operation of coal-burning power plans. A coal mining company whose plants are affected by the new regulations, sues in federal court, alleging that the regulations issued by the Department are unconstitutional. A reviewing court should find for: (A) The coal mining company, because legislative power cannot be redelegated. (B) The coal mining company, because the legislation contains no limits on the delegated power. (C) The Department, because the act contains an intelligible principle that limits the Department's discretion. (D) The Department, because it was created by Congress and its head was appointed by the President and confirmed by the Senate.

(C) The Department, because the act contains an intelligible principle that limits the Department's discretion. The Court has held that Congress may delegate power to executive branch agencies as long as the legislation contains "intelligible principles" that guide and constrain agency discretion. In practice, review has been extremely deferential, upholding legislation granting the Federal Communications Commission authority to regulate broadcasting "in the public interest," for example. Here the DCCC is instructed to coordinate governmental departments' responses to climate change with a view to aid climate change's mitigation. That is at least as specific as other principles the Court has upheld, so the best answer is C. A is incorrect because it misstates the law. B is incorrect as well because the enabling legislation does contain some limits. D is incorrect because the method of appointment does not necessarily mean that the regulations promulgated by the Department are constitutional.

Following an escalating series of confrontations among neighbors in a condominium complex over political yard signs during a tense election year, the complex's private homeowners' association, which governs members' land use, bans all yard signs except "for sale" signs. A homeowner sues, claiming that the rule is unconstitutional. A reviewing court should: (A) Strike down the rule, because it is a content-based restriction of speech. (B) Strike down the rule, if there are not ample alternative channels of expression for residents. (C) Dismiss the suit, because yard signs are of minimal expressive value. (D) Dismiss the suit, because the homeowners' association is a private actor.

(D) Dismiss the suit, because the homeowners' association is a private actor. The best answer here is D. The other answers presume the actions were undertaken by a governmental actor. Although the Court in Marsh v. Alabama held that a company-owned town may take on public status under the public function doctrine, most recent cases find that private entities such as shopping malls do not become public actors when they regulate speech. In addition, B recites part of the wrong standard of review for content-based regulations in public forums, and C is incorrect insofar as it suggests that yard signs are not protected by the First Amendment in any context.

Fearful that Americans are not saving enough for retirement and that the federal government will be required to spend more in the future to support retired workers to maintain their standard of living, Congress passes, and the President signs, an act that requires every adult to set up a 401K retirement account and fund it with no less than 15% of their monthly income until retirement or age 65, whichever comes later. A person impacted by this change in the law sues, claiming that the legislation exceeds Congress's Article I powers. Which of the following statements is most likely true? (A) The act is a permissible exercise of Congress's power to pass laws for the general welfare. (B) The act is a permissible exercise of Congress's power to regulate interstate commerce, because, in the aggregate, failure to save adequately for retirement would substantially affect interstate commerce. (C) The act is unconstitutional, because it regulates an individual's inactivity. (D) The act is unconstitutional, because Congress is regulating intrastate activity.

(C) The act is unconstitutional, because it regulates an individual's inactivity. After "National Federation of Independent Businesses v. Sebelius," it appears that there are five votes for the proposition that the regulation of inactivity, or the forced participation in a particular market, is not within Congress's Commerce Clause power. Therefore, C is the best answer. A is incorrect because Congress has no such power. It may tax and spend for the general welfare, but there is no power to legislate for the general welfare granted in Article I. B is false because that was precisely the argument that five members of the Court rejected in "NFIB." D is incorrect because Congress may regulate intrastate activity as long as it substantially affects interstate commerce.

State A is known for the quality of produce grown in the state. Concerned about its high unemployment rate, the state recently passed a law requiring that produce be packed in the state before it is shipped elsewhere. A company located in the neighboring State B sought to have the law declared unconstitutional. It preferred to ship the produce out of State A and have it packed in State B before being distributed. Which of the following statements about the law is likely true? (A) The law is constitutional, because it is a valid exercise of the state's police power. (B) The law is constitutional, because the state is a market participant. (C) The law is unconstitutional, because it discriminates against interstate commerce. (D) The law is unconstitutional, because the burdens on interstate commerce clearly exceed the local benefits.

(C) The law is unconstitutional, because it discriminates against interstate commerce. The dormant Commerce Clause prohibits states from discriminating against or otherwise unduly burdening interstate commerce. Here the State A statute effectively imposes a tariff on the export of goods and is facially discriminatory. Therefore, the correct answer is C, especially because the law was enacted in order to benefit the citizens of State A economically. A is incorrect because the police power is subject to the limits of the dormant Commerce Clause. B is incorrect because the state is acting as a regulator rather than participating in the buying or selling of produce. D is not the best answer because it recites the test applied to truly nondiscriminatory statutes, whereas the law here is discriminatory on its face.

A city in State A recently barred the sale and possession of ammunition within the city limits. A homeowner challenged the ban in a suit filed in State A district court. If the reviewing judge enjoined the law, it would likely be because: (A) The law impairs a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment. (B) The law impairs a privilege or immunity protected by the Fourteenth Amendment. (C) The law violates the Second Amendment, as incorporated by the Due Process Clause. (D) The law is not rationally related to a legitimate governmental interest.

(C) The law violates the Second Amendment, as incorporated by the Due Process Clause. Heller held that—subject to some limitations—the Second Amendment guaranteed an individual right to possess a handgun in the home for self-defense. In McDonald, a plurality held that the Second Amendment was incorporated against state governments via the Due Process Clause of the Fourteenth Amendment. The Court placed the ability to engage in armed self-defense at the core of the Amendment. It is likely that indirect attempts to make that impossible would be frowned upon by a court. Therefore, the correct answer is C. Because Heller explicitly rejected a rational basis test for evaluating the District's gun regulation, D is incorrect. A is not the best answer because there is an explicit amendment on point that has been incorporated against the state, and thus there is no need for courts to rely on the more open-ended substantive due process fundamental liberty test. B is incorrect because only Justice Thomas thought that the Second Amendment applied to states by dint of the Privileges or Immunities Clause.

A defendant was convicted in state court on drug charges resulting from a search pursuant to a traffic stop that resulted in the discovery of a large amount of narcotics in the car. The defendant appealed his conviction, arguing that the stop and the search violated his constitutional rights. The state Supreme Court concluded that the search violated the Fourth Amendment to the U.S. Constitution. The court also held that the search violated similar state constitutional protections against unreasonable searches and seizures. The state petitions the U.S. Supreme Court to review the case. If the Court declines to address the merits, what is the likely reason? (A) The Court will not review the constitutional decisions of state courts unless a federal statute is involved. (B) The case presents a nonjusticiable political question. (C) The state court decision rested on adequate and independent state grounds. (D) The Court defers to state court interpretation of the U.S. Constitution in state cases.

(C) The state court decision rested on adequate and independent state grounds. If the Supreme Court declines to reach the merits of the state court's decision, it is likely because the facts indicate the state court's decision rested on adequate and independent state grounds. The facts state that the court held that the search violated both the Fourth Amendment and the state's own similar constitutional protections. Therefore, C is the best answer. A is incorrect; the Court will review state decisions that apply the U.S. Constitution. It will not review state court decisions that involve questions of purely state statutory or state constitutional law. B is incorrect because there is nothing about the case that makes it nonjusticiable. D is incorrect because while the Court defers to a state high court's interpretation of state law, the Court does not defer to state court interpretations of the U.S. Constitution.

Two years ago, the President of the United States nominated a candidate for Secretary of Education. Due to an ongoing political dispute, the Senate refused to hold a confirmation vote on the candidate's appointment. Last month, during the Senate's Thanksgiving break, the Senate unanimously adopted a resolution on November 20 to convene a "pro forma session" on November 23. The 30-second long pro forma session occurred, the Senate immediately went into an intra-session recess, and then reconvened a week later on December 1. During that seven-day break, the President invoked the Recess Appointments Clause to formally appoint the candidate as Secretary of Education. If subject to a constitutional challenge, a reviewing court reviewing would likely conclude that the candidate's appointment is: (A) Constitutional, because the Recess Appointments Clause allows the President to appoint executive branch officers during any Congressional recess without Senate confirmation. (B) Constitutional, because under Article II, the President has full authority to nominate the appointee of their choice for cabinet-level positions. (C) Unconstitutional, because the Senate was not in recess. (D) Unconstitutional, because the Constitution requires presidential appointments to satisfy Article I's bicameralism requirement.

(C) Unconstitutional, because the Senate was not in recess. The correct answer is C. In NLRB v. Canning, the Court held that an intra-session recess lasting less than 10 days is too short to trigger the Recess Appointments Clause, and therefore the appointment is unconstitutional because the candidate did not receive the Senate's consent, which is required under the Appointments Clause. A is incorrect because under Canning, the Senate was not in "recess," so the Recess Appointments Clause was not triggered. B is incorrect because Senate confirmation is required for cabinet-level appointments like the Secretary of Education. D is incorrect because Senate confirmation of certain executive branch officials is one of the areas where the Constitution allows an individual house of Congress to act without approval of the other house.

In an effort to reform federal criminal justice policy, Congress enacts an Act, a federal statute that would allow the President to refuse to sign into law any individual provision contained within a federal criminal justice statute if the President determines that the provision would "not serve the nation's best interests." Under the Act, the statute in question would go into effect once the President signs it into law with the exception of the invalidated provision. A reviewing court would most likely find the Act: (A) Constitutional, because the Constitution vests the power to veto bills enacted by Congress in the President. (B) Constitutional, because Congress has broad power to delegate legislative authority to the President. (C) Unconstitutional, because the law violates Article I, Section 7's procedural requirements. (D) Unconstitutional, because the law lacks an intelligible principle to guide the President's exercise of discretion.

(C) Unconstitutional, because the law violates Article I, Section 7's procedural requirements. The correct answer is C. The Act contains a "line item" veto similar to the one the Court invalidated Clinton v. City of New York as a violation of Article I, Section 7's procedural requirements for federal lawmaking. A is incorrect because while the Constitution gives the President the exclusive power to veto legislation, this Act gives the President the power to "amend" legislation after it has passed (according to Clinton), and therefore goes beyond the President's power to veto legislation. B is incorrect because the Constitution does not allow Congress to delegate "legislative" power to the President, even though Congress has broad authority to delegate choices about how to "execute" a statutory scheme, including the ability to adopt regulations that put a statute into effect. D is incorrect because the Court has adopted a broad definition of an intelligible principle to guide the President's exercise of delegated authority that would easily include a statute that provided a "nation's best interest" standard to guide executive discretion.

A city's historic district is a popular tourist destination. A decade ago, a food truck set up shop in the district. Its success prompted others to follow suit. Restaurants in the district complained that the proliferation of food trucks hurt their businesses. As a result, the city council banned all food trucks from the district, except for the first one that opened, reasoning that that first truck had become part of the fabric of the district. The city was sued in federal court by the other truck owners, claiming that the city's ban was unconstitutional. A reviewing court should: (A) Strike down the ban because it is an unlawful taking. (B) Strike down the ban because it is not necessary to a compelling governmental interest. (C) Uphold the ban because it is rationally related to a legitimate government interest. (D) Uphold the ban because the owners of the food trucks have had no valid liberty interest infringed.

(C) Uphold the ban because it is rationally related to a legitimate government interest. The correct answer is C. The classification between new food trucks and the one that was given permission to continue to operate does not involve a suspect class so the city's action would only have to satisfy the rational basis test. A is incorrect because the city's action is neither a per se taking nor does it fail Penn Central balancing for a regulatory taking. B states the wrong standard of review because the state need show a compelling government interest only under strict scrutiny review, which does not apply here. D is incorrect because, although it can be argued that the city has infringed a valid liberty interest, economic interests generally do not involve fundamental rights under modern substantive due process analysis. Thus, the city's actions only need to satisfy the rational basis test.

Congress passed a controversial bill regulating firearms. The bill's constitutionality was questioned, and the bill was challenged in court. Ultimately, the Supreme Court upheld the provision. A sunset provision in the original bill meant that Congress had to reauthorize the bill every two years. The first time the bill was up for reauthorization, the President vetoed it. His veto message asserted that the measure was unconstitutional. Is the President's action constitutional? (A) No, because the president may not override Supreme Court decisions. (B) No, because it is the duty of the Supreme Court to say what the law is. (C) Yes, because the president is exercising discretion committed to him by the Constitution. (D) Yes, because the executive veto is a proper check on the Court's power of judicial review.

(C) Yes, because the president is exercising discretion committed to him by the Constitution. A president has discretion to veto legislation on constitutional grounds, even if the Supreme Court has said that the bill passed constitutional muster. Thus, the correct answer is C. A is incorrect because the President didn't override the Court's decision, which still stands. He simply vetoed a piece of legislation that was presented to him as the Constitution authorizes him to do. B is incorrect for much the same reason: the president's action here does not effect the Court's ability to decide cases properly before it. D is incorrect because, again, the veto here didn't override the Court in any way, other than to signal that the president disagreed with a majority of the Court on the question of constitutionality.

Worried that federal judges lack the specialized expertise necessary to correctly decide cases involving new technology, Congress creates the federal Court of Technology, staffed with judges who are nominated by the President and confirmed by the Senate and who otherwise are like federal district court and courts of appeals judges. Cases denominated "technology cases" in the statute must be filed in the new court. Appeals from the trial courts go to a new "Court of Technology Appeals" and are heard by panels of three Technology Appeals judges nominated by the President and confirmed by the Senate. In addition, the legislation creating these new courts removes technology cases from the appellate docket of the U.S. Supreme Court. Is the legislation constitutional? (A) No, because there must be an appeal from the Court of Technology Appeals to the U.S. Supreme Court (B) No, because the Constitution does not grant Congress the power to set the original jurisdiction of lower courts (C) Yes, under Article III (D) Yes, as long as technology cases have a substantial effect on interstate commerce when aggregated

(C) Yes, under Article III Article III, section 1 gives Congress the power to establish inferior federal courts. The Supreme Court has held that the power to create those courts implies a power to control their jurisdiction. Therefore, B is incorrect. In addition, Article III, section 2 gives Congress the power to regulate the appellate jurisdiction of the Supreme Court, which would mean A is incorrect. While there is some debate whether Article III requires some federal judicial forum be available to hear cases listed in Article III, section 2, in this case there would be two: the Court of Technology and the Court of Technology Appeals. Nothing requires that the Supreme Court hear the case. D is incorrect because Congress's ability to create the courts and alter the jurisdiction of the Supreme Court is a power given in Article III; it does not depend upon Article I for its exercise. That leaves C, which is the best answer.

Which of the following is a reason given for adopting originalism as a preferred method of constitutional interpretation? (A) Originalism limits judges' discretion. (B) Originalism ensures that decisions are based on something other than judges' notions of sound policy. (C) Originalism minimizes the "countermajoritarian difficulty." (D) All of the above are cited reasons for using originalism.

(D) All of the above are cited reasons for using originalism. Proponents of originalism would say, D, that each is a reason to prefer it to other interpretive methods. The argument for originalism goes something like this: The exercise of judicial review involves the setting aside of policy preferences of democratically-elected officials by officials who are neither elected nor accountable in any direct sense to voters. It is, in that sense, "countermajoritarian," in Alexander Bickel's phrase. The danger is that the popularly elected branches' preferences will be set aside in favor of nothing more than the judge's (or a majority of the Supreme Court). In order to minimize the countermajoritarian nature of judicial review, judges should apply the law of the Constitution as the Framers and ratifiers understood it. Not only does that ensure that the judge is applying "the law," it preserves plenty of space for the popularly elected branches to express their policy preferences. By applying the Constitution as the Framers and ratifiers understood it, moreover, a judge's ability to allow her own preferences to intrude is arguably kept to a minimum.

Which of the following provides a textual basis for federal judges to invalidate statutes that violate the Constitution? (A) The Article III Arising Under Clause. (B) The Article III Vesting Clause. (C) The Article VI Oath Clause. (D) All of the above.

(D) All of the above. The correct answer is D. In Marbury v. Madison, Chief Justice John Marshall cites several constitutional provisions that provide legal support for federal judges to assert the power of judicial review. Specifically, he cites Article III's vesting of "judicial power" in federal courts (which he suggests includes the power to "say what the law is"), the federal judiciary's Article III authority to decide cases "arising under" the Constitution (which he suggests includes the power to invalidate federal statutes that conflict with the Constitution), and Article VI's requirement that federal judges take an oath to "support" the Constitution (which he suggests includes the obligation to invalidate unconstitutional laws).

State H passes a state law criminalizing speech that is "critical of state officials." After the law is challenged on First Amendment grounds, the state files a motion to dismiss, arguing that state laws are not subject to the First Amendment's Free Speech Clause. The reviewing judge should: (A) Deny the motion to dismiss, because under the Fourteenth Amendment's Privileges or Immunities Clause, the State H law is subject to the First Amendment. (B) Deny the motion to dismiss, because the text of the First Amendment explicitly states that it applies to state law. (C) Deny the motion to dismiss, because under the Fourteenth Amendment's Due Process Clause, state laws must comply with every provision in the Bill of Rights, including the First Amendment. (D) Deny the motion to dismiss, because under the Fourteenth Amendment's Due Process Clause, the First Amendment is considered fundamental to our system of ordered liberty.

(D) Deny the motion to dismiss, because under the Fourteenth Amendment's Due Process Clause, the First Amendment is considered fundamental to our system of ordered liberty. The correct answer is D because it accurately states the rule the Court has applied to determine whether a provision in the Bill of Rights is incorporated against the states (most recently in McDonald v. City of Chicago) and because the Court has long held that the provisions of the First Amendment's Free Speech Clause apply to actions taken by state governments. A is incorrect because in a series of cases starting with The Slaughterhouse Cases, the Court rejected the argument that the Fourteenth Amendment's Privileges or Immunities Clause incorporates the provisions in the Bill of Rights against the states. B is incorrect because the text of the First Amendment only references "Congress" and makes no mention of its applicability to actions taken by states. C is incorrect because the Court has rejected the "total incorporation" approach, under which the entire Bill of Rights would be incorporated against the states, in favor of a "selective incorporation" approach that deals with each provision in the Bill of Rights separately.

In order to encourage citizens' vigilance in the defense of constitutional liberties, Congress passes a statute that authorizes suit in federal district court by "any person" who asserts a "credible claim" that any act of Congress or action of any executive official violates the Constitution. After reading a newspaper account of a "kill or capture list" of suspected terrorists that allegedly contains the names of American citizens, Rand sues in federal district court under the new statute. A reviewing court should: (A) Hear the suit, because Congress has empowered any person to bring suit. (B) Hear the suit, because the statute grants any person a procedural right, the violation of which satisfies Article III's standing requirements. (C) Dismiss the suit, because it is not ripe. (D) Dismiss the suit, because Congress cannot authorize courts to hear cases in which the plaintiff lacks a concrete injury.

(D) Dismiss the suit, because Congress cannot authorize courts to hear cases in which the plaintiff lacks a concrete injury. The best answer is D. Standing requires that individuals assert a concrete, particularized injury that is actual or imminent, not conjectural or hypothetical. Merely asserting an interest in having officials follow the law or an interest in not having them violate the Constitution is not sufficient; it is, in the Court's words, a "generalized grievance" insufficient to sustain standing unless the plaintiff himself has suffered a concrete injury. Because injury-in-fact is part of standing's constitutionally irreducible minimum, Congress is not at liberty to alter those standards or relax them. A is not correct for that reason; recall "Lujan." You might have been drawn to B, but the procedural right mentioned in Justice Kennedy's concurring opinion in "Lujan" would be like Congress requiring a regulated industry to file an environmental impact statement before constructing a new facility. Nearby landowners are concerned about the effects of the new facility on their land. Construction begins without the required statement being filed; the landowners sue to stop the facility, claiming that the required statement is missing. The landowners can get into federal court because the company hasn't complied with the statute and the landowners can seek to enforce it. The "procedural right" created in the question isn't really a procedural right at all, at least for Rand, who doesn't have any real injury-in-fact. C is not the best answer because the problem isn't so much the need for additional facts as it is the statute purporting to allow those with mere generalized grievances to bring suit in federal court.

Congress concluded that, in order to achieve economies of scale, more Americans should buy electric vehicles. In order to stimulate demand, Congress passed legislation requiring that the second car purchased by a household, and each subsequent car purchased, be an electric vehicle. If the act is challenged in federal court, a reviewing judge should: (A) Uphold the act, if it finds that Congress had a rational basis for concluding that widespread adoption of electric vehicles will substantially affect interstate commerce. (B) Uphold the act, because it is a regulation of instrumentalities of interstate commerce. (C) Invalidate the act, because the purchase of a car is intrastate activity. (D) Invalidate the act, because it forces individuals to participate in a particular market.

(D) Invalidate the act, because it forces individuals to participate in a particular market. Since the Court's opinion in NFIB v. Sebelius, we know that Congress's commerce power does not include the power to force individuals to participate in a market in which they were not already involved. Thus, D is the correct answer. A reflects the arguments that proponents of the health insurance mandate in NFIB v. Sebeliusmade but the Court rejected. B is incorrect because Congress isn't regulating cars per se, but rather attempting to mandate that individuals acquire certain types of them. C is incorrect because Congress can regulate intrastate activities that substantially affect interstate commerce.

In order to pass comprehensive immigration reform, Congress included some "get tough" measures intended to expedite the deportation of persons in the United States illegally who commit other crimes. The bill requires state and local law enforcement officials to check the immigration status of persons they detain or arrest. The chief of an overworked rural sheriff's department sues, claiming that the requirement is unconstitutional. A reviewing court should: (A) Uphold the provision, because it is necessary and proper to Congress's Article I power to prescribe uniform rules for naturalization. (B) Uphold the provision, because it is the supreme law of the land, which state officials must obey. (C) Invalidate the provision, because it exceeds Congress's power under the Commerce Clause. (D) Invalidate the provision, because it impermissibly commandeers state executive officials.

(D) Invalidate the provision, because it impermissibly commandeers state executive officials. D is the correct answer because the federal government is attempting to force state and local executive branch officials to implement a federal program in violation of the anti-commandeering principle. A is incorrect because the anti-commandeering principle is a structural principle that limits Congress's Article I powers. B is incorrect because only laws passed "pursuant to" the Constitution are supreme under Article VI; the anti-commandeering principle is a structural constitutional principle that Congress must observe and state officials are not required to follow an unconstitutional federal law. C is incorrect because Congress would not need to proceed under its commerce power to pass the law, although it certainly might because persons coming into the United States could be regulated under congressional power to regulate foreign commerce. However, the anti-commandeering rule imposes an external limit on Congress's use of the commerce power. Even if Congress can use its commerce power to "regulate" this activity, it cannot use its commerce power to commandeer state officials as part of its regulation.

State A passed a law requiring utilities to purchase 25% of the energy they sell to in-state consumers from renewable sources by the year 2015. The law further defined renewable resources to exclude hydroelectric power and biomass fuels. A year later, the federal government passed a similar law requiring utilities to purchase 25% of all power transmitted in interstate commerce from renewable sources, which includes the sources State A law excludes. The strongest argument against the State A law is that: (A) It violates the Commerce Clause. (B) It exceeds the state's legislative power. (C) It violates the Privileges and Immunities Clause. (D) It violates Article VI.

(D) It violates Article VI. When state law and a valid federal law conflict, Article VI states that federal law is the supreme law of the land. Therefore, the correct answer is D. The law appears to be nondiscriminatory, so A is incorrect. B is not correct because states are generally understood to have plenary legislative power limited only by state and federal constitutional provisions. C is also incorrect; State A's law does not discriminate against nonresidents. (And in any event would likely not apply since the utilities to which the law applies would most likely be corporations.)

Congress passes, and the President signs, a bill allowing Congress to retain some authority over executive agencies. If both houses of Congress, by majority vote, object within ten days of the announcement of a new agency regulation, those regulations do not go into effect. Is such a law constitutional? (A) Yes, because the bill satisfies the constitutional requirements of bicamerality and presentment. (B) Yes, because the bill furthers Congress's responsibility to see that the laws be faithfully executed. (C) No, because Congress may not dictate how executive agencies implement statutes. (D) No, because the law violates separation of powers principles.

(D) No, because the law violates separation of powers principles. This is similar to a "legislative veto" that the Court found violated the Constitution's presentment requirement. Thus, the correct answer is D. A is incorrect because even if the bill attempting to create this legislative veto satisfied bicamerality and presentment initially, subsequent legislative acts that alter someone or something's legal status still need to be presented to the President for signature or veto. B is incorrect because it is the executive branch that is charged with faithful execution. C is incorrect because Congress may dictate how agencies implement statutes is a number of ways but does not have power to override their actions without enacting legislation that is then sent to the President.

Congress passes a law criminalizing the failure to make child support payments owed to a former spouse. A defendant challenges the law, arguing that it exceeds Congress's legislative powers in Article I. Which of the following arguments would be least helpful to the government in defending the law? (A) Child support payments are things in interstate commerce. (B) Child support payments, in the aggregate, substantially affect interstate commerce. (C) The law contains findings detailing the effects that failure to make child support payments have on interstate commerce. (D) States have generally enforced laws criminalizing the failure to make child support payments.

(D) States have generally enforced laws criminalizing the failure to make child support payments. The best answer is D. In "Lopez" and "Morrison," the Supreme Court looked to several factors to decide whether intrastate activity substantially affected interstate commerce: whether the activity was economic or noneconomic; whether there was a jurisdictional nexus statement tying the regulated activity to interstate commerce; whether the statute was accompanied by findings linking the activity to interstate commerce; whether the activity was one traditionally regulated by the state; and whether the activity was part of a larger regulatory scheme whose efficacy would be fatally undermined if the local activity could not be reached. The best answer, therefore, is D. If this is something states have traditionally done, then the case for federal power to reach that activity is weakened, as it was in "Lopez" (guns in schools) and "Morrison" (a civil remedy for violence motivated by gender-based animus). A is incorrect because convincing a court that payments are "things" in interstate commerce means that one does not have to further inquire into the "Lopez-Morrison""substantially affects" factors. B is likewise helpful because that is another of the situations in which Congress may regulate even local, intrastate activity. And while findings alone won't sustain an exercise of congressional power, they are useful in demonstrating that the activity does, in fact, affect interstate commerce. Therefore, Cwould be useful to the government as well.

The United States recently began normalizing relations with Cuba. When Fidel Castro took over in 1959, the government expropriated businesses and property—much of which was owned by U.S. citizens. At present, there are around 6,000 claims pending against Cuba now worth nearly $7 billion. As part of the normalization process, the President negotiates an executive agreement with Cuba. He does not submit it to Congress for approval. Under the agreement, businesses and individuals with claims against the country will receive neither cash nor bonds but will receive economic development incentives—like tax exemptions—for reestablishing businesses in the country. The President's executive agreement is counter to a law passed by Congress requiring that all such claims be settled for cash or its equivalent. One of the businesses having claims against Cuba sues, citing the congressional statute. A reviewing court should rule for: (A) The plaintiff, because Congress has the power to regulate foreign commerce. (B) The plaintiff, because the agreement was not approved by two thirds of the Senate. (C) The President, because he has sole responsibility for conducting foreign affairs. (D) The President, because he has the power to settle claims with foreign countries using executive agreements.

(D) The President, because he has the power to settle claims with foreign countries using executive agreements. While this is another presidential-congressional conflict, the President has the upper hand here. The Court has long held that the President has the power to settle claims with foreign countries using executive agreements, which are distinct from treaties and do not require Senate ratification. "See, e.g., United States v. Pink." The best answer, then, is D. A is correct, but it doesn't mean that the statute trumps the executive agreement. B is incorrect because an executive agreement is not a treaty. C is incorrect because Congress has powers in Article I that give it a role to play in the conduct of foreign affairs.

State A passes a law mandating the use of a certain chemical in the manufacture of widgets. After evidence mounts that that chemical is carcinogenic, Congress bans the use of it in widget manufacture. The State A does not repeal its law. A widget manufacturing corporation based in the State A is fined after inspection reveals that it eliminated the chemical in question from its widget manufacturing process. Which of the following is the manufacturer's best argument? (A) The State A state law discriminates against interstate commerce. (B) The State A state law violates the manufacturer's Privileges and Immunities. (C) The State A state law is expressly preempted. (D) The State A state law is preempted, because it is impossible for the manufacturer to comply with both federal and state law.

(D) The State A state law is preempted, because it is impossible for the manufacturer to comply with both federal and state law. The correct answer is D because it is impossible to comply with both federal and state law. In the case of such a conflict, federal law preempts state law because of the Supremacy Clause. The law does not appear to be discriminatory, so A is incorrect. The Privileges and Immunities Clause of Article IV is not implicated here; there is no differential treatment of residents and nonresidents, so B is not helpful to the manufacturer. (And in any event, corporations are not covered by Article IV, section 2.) It does not appear from the facts that federal law expressly bars states from regulating widget manufacture, so C is not the best answer either.

State A passed a law greatly limiting the number of hunting licenses nonresidents could purchase during any given season. The number of licenses available to State A residents was unlimited. Thereafter, a court invalidated the State A law as a violation of the dormant Commerce Clause. Congress then passed a law explicitly permitting states to limit the number of hunting licenses given to nonresidents or to bar them from hunting altogether. State A then re-enacted the law that was previously struck down. Which of the following statements is true? (A) The congressional statute is unconstitutional, because Congress cannot legislatively overturn decisions of federal courts. (B) The State A statute is constitutional, because it does not involve the fundamental rights of nonresidents. (C) The congressional statute is constitutional, because Congress may enforce the provisions of the Fourteenth Amendment against the states. (D) The State A statute is constitutional, because Congress may authorize state action that would otherwise violate the dormant Commerce Clause.

(D) The State A statute is constitutional, because Congress may authorize state action that would otherwise violate the dormant Commerce Clause. The dormant Commerce Clause doctrine is a default rule that Congress may override by exercising its affirmative Article I commerce power. The correct answer, therefore, is D. A is incorrect because it incorrectly states the law. B is incorrect because despite the fact that the act discriminates against residents and nonresidents, the Supreme Court has held that hunting is recreation, does not implicate the fundamental rights of nonresidents, and is outside the protection of the Privileges and Immunities Clause of Article IV, section 2. C is incorrect because while true, Congress used its commerce power and not its section 5 enforcement power to authorize the discriminatory State A statute.

Assume that the Supreme Court holds that content-based regulations of speech are no longer subject to strict scrutiny, but rather are subject to a "proportionality test" that weighs the degree of infringement on First Amendment rights against the demonstrated need for regulation of the speech in question, including the harm allegedly caused by the speech. In response, Congress passes a law permitting anyone whose speech is regulated on the basis of content to sue, restoring by statute the old strict scrutiny test. The law applies to federal and state laws. In part, Congress relies on its power to enforce the provisions of the Fourteenth Amendment. When the State of A passes a comprehensive bill regulating "hate speech" that denigrates people on the basis of race, religion, sexual orientation, or alienage and attempts to prosecute one of its citizens under its new law, the defendant invokes the federal law. A reviewing judge should rule for: (A) The defendant, because Congress exercised its power to enforce the Fourteenth Amendment. (B) The defendant, because Congress can instruct courts to apply particular rules of decision. (C) The State of A, because Congress cannot abrogate state sovereign immunity. (D) The State of A, because the law is not a valid exercise of Congress's power to enforce the Fourteenth Amendment.

(D) The State of A, because the law is not a valid exercise of Congress's power to enforce the Fourteenth Amendment. The facts here are similar to those in "City of Boerne v. Flores," in which the Supreme Court struck down the federal Religious Freedom Restoration Act, at least as it applied to state laws. While A is correct that the Fourteenth Amendment does give Congress the power to enforce its provisions through legislation, "Boerne"held that Congress could not invoke that enforcement power to essentially supplant the Supreme Court's interpretation of the Constitution with Congress's. Because Congress tried to do just that, D is the correct answer. The law is not a valid use of Congress's power to enforce the Fourteenth Amendment. B is incorrect because though Congress may prescribe rules of decision for the court to apply without violating separation of powers, it cannot instruct the court on the interpretation of the Constitution. C is an incorrect statement of law. Only by exercising its Fourteenth Amendment enforcement power can Congress abrogate state sovereign immunity.

Congress recently passed a law prohibiting any public or private employer in or affecting interstate commerce from requiring, as a condition of employment, that applicants disclose their social media passwords so that their accounts could be analyzed for inappropriate content. State A sued, claiming that the federal law could not constitutionally be applied to states. Which of the following statements is likely true? (A) The law is unconstitutional, because it commandeers state employees in the implementation of a federal program. (B) The law is unconstitutional, because it exceeds Congress's Article I powers. (C) The law is constitutional, because state officials are required by Article VI to assist the federal government in implementing valid federal law. (D) The law is constitutional, because state officials must comply with a valid federal law.

(D) The law is constitutional, because state officials must comply with a valid federal law. Through the operation of Article VI, valid federal laws trump contrary state law, including state constitutions, and bind state officials. In "Reno v. Condon," the Supreme Court held that requiring state officials to obey an otherwise valid federal law did not violate the anti-commandeering principle. To hold that merely requiring obedience to federal law was "commandeering" would render the Supremacy Clause nearly void. The correct answer, therefore, is D. A is not correct because the facts do not present a case of commandeering according to "Reno v. Condon." B is not correct because the law is a valid regulation of interstate commerce. C is an incorrect statement of law: the anti-commandeering principle says that state executive and legislative officials may not be conscripted into the service of the federal government to implement federal programs.

Federal law prohibits domestic violence misdemeanants from possessing firearms. A plaintiff with a decades-old conviction for misdemeanor domestic violence is barred from purchasing a handgun and challenges the law in federal district court. Which of the following statements is likely true? (A) The possession of firearms by domestic violence misdemeanants is not covered by the Second Amendment. (B) The law would be upheld if the state demonstrates that it is narrowly tailored to a compelling governmental interest. (C) The law would be upheld if the state demonstrates that the law is rational. (D) The law would be upheld if the state demonstrates that the law is substantially related to an important governmental interest.

(D) The law would be upheld if the state demonstrates that the law is substantially related to an important governmental interest. Heller and McDonald were opaque as to the standard of review to be applied to firearms regulations, though the Heller majority did reject a rational basis test. Therefore, C is likely incorrect. Lower courts, however, have inferred from the Supreme Court's treatment of both the District's and Chicago's laws that a form of intermediate—as opposed to strict—scrutiny applies to laws that impinge on Second Amendment rights. As between B and D, then, D is the better and correct answer. While Heller did mention some presumptively lawful restrictions, like those barring felons from owning firearms, laws barring domestic violence misdemeanants were not mentioned and are of relatively recent vintage. While the Supreme Court has not ruled directly on the question, lower courts reviewing the federal law that bars those convicted of domestic violence misdemeanors from firearms ownership have done so under intermediate scrutiny. A is incorrect because a law restricting the ownership of firearms clearly implicates the Second Amendment.

State A and State B both produce beef cattle. State A has invested a great deal of money developing a method of grading beef that is recognized as the industry standard. The state grading system, in fact, is regarded as superior to the one developed by the United States Department of Agriculture. State B has no grading system of its own; its beef producers use the system developed by the USDA. Claiming that it wishes to avoid consumer confusion, State B passed a law that prohibits the display of beef for sale of any grade other than that of the USDA. State A beef producers sue in federal court, claiming that the State B law is unconstitutional. A reviewing court should rule for: (A) State A, because it is a valid exercise of the police power. (B) State A, because the law applies to in-state and out-of-state beef equally. (C) The plaintiffs, because the law unduly burdens interstate commerce. (D) The plaintiffs, because the law effectively discriminates against State A beef.

(D) The plaintiffs, because the law effectively discriminates against State A beef. The correct answer is D. Though the law is facially neutral, the effect of it is to level the playing field to the advantage of State B cattle by depriving State A cattle dealers of a competitive advantage conferred by investment of resources into the superior grading system. Such discriminatory effects will be treated by courts as if the discrimination was explicit. A is incorrect because exercises of state police power are still subject to review under the dormant Commerce Clause. B is incorrect because facially-neutrality is not a sufficient condition for a law's constitutionality under the dormant Commerce Clause. C states the standard of review for truly nondiscriminatory, but burdensome, state laws. However, as noted above, the State B law discriminates in its effects.

Congress passed, and the President signed, a law requiring persons with ties to organizations designated by the State Department to be "terror groups" to register with the federal government. State A passed a similar law but imposed additional restrictions on such persons, including making them ineligible for certain social programs. Congress had considered, but rejected, such restrictions in the final version of the law that passed and was sent to the President. If a reviewing court invalidated the state law, it would likely be because: (A) The federal government has exclusive control over foreign affairs. (B) It would be impossible to comply with both federal and state law. (C) The state law discriminates against foreign commerce. (D) The state law presents an obstacle to congressional goals.

(D) The state law presents an obstacle to congressional goals. The correct answer is D. Because Congress had considered and rejected the additional restrictions imposed by the state, it suggests that the imposition of those restrictions would pose an obstacle to the attainment of certain congressional objectives. "See Hines v. Davidowitz" (rejecting additional restrictions on aliens imposed by states greater than those imposed by Congress). A is incorrect because state law does not control foreign affairs but merely regulates individuals—foreign or domestic—who have ties with groups denominated "terror organizations." B is incorrect because nothing in the facts suggest that one could not comply with both regimes. C is incorrect because the state law does not favor domestic commerce over that with foreign nations.

Congress enacts a law establishing a new federal agency led by a five-person commission to set federal privacy policies for technology companies. Each commissioner is appointed by the President and confirmed by the Senate and can only be removed from office prior to the expiration of their 11-year terms "for cause." The new agency is led by a chief officer, who is appointed by the commissioners and can only be fired by the commissioners for "good cause." If the process for appointing and removing the chief officer is subject to a constitutional challenge, a reviewing court is likely to hold that the process is: (A) Constitutional, because the chief officer is performing a purely executive function. (B) Constitutional, because the commissioners are appointed by the President. (C) Unconstitutional, because Congress cannot impose "for cause" removal requirements on executive branch officials. (D) Unconstitutional, because the process places unconstitutional limits on the President's ability to control or supervise the executive branch.

(D) Unconstitutional, because the process places unconstitutional limits on the President's ability to control or supervise the executive branch. The correct answer is D. This case is similar to the "two-tier" removal structure the Court struck down in Free Enterprise Fund v. PCAOB. Here, as in PCAOB, Congress unconstitutionally infringed on the President's constitutional authority to control or supervise executive branch officials by vesting the power to remove the chief officer in the commissioners (rather than the President), who themselves could only be removed "for cause," and then imposed an additional "for cause" limitation on removing the chief officer. A is incorrect because the fact that the chief officer is performing an executive function does not address the constitutional problems created by the "two-tier" removal structure. Similarly, B is incorrect because the structure of the appointment process does not cure the constitutional deficiencies in the removal process. C is incorrect because in several cases, including Humphrey's Executor and Morrison v. Olson, the Court has held that Congress can impose "for cause" limitations on removal of executive branch officers without improperly infringing on the executive's Article II powers.

Congress recently passed, and the President signed, a nationwide ban on sports betting. The ban was passed under authority of Congress's power to regulate interstate commerce. A zealous federal prosecutor in State A sought the convictions of five persons who ran an inter-office pool betting on the outcome of the annual college basketball tournament. The defendants objected that the office was a local one, servicing customers in State A, and that there was no connection to interstate commerce. The defendants were convicted and appealed their conviction. A reviewing judge should: (A) Reverse the convictions, because the betting pool was noncommercial. (B) Reverse the convictions, because the defendants were not engaged in interstate commerce. (C) Uphold the convictions, because Congress may regulate interstate commerce for the general welfare. (D) Uphold the convictions, because Congress could have rationally concluded that in the aggregate intrastate sports betting substantially affected interstate commerce.

(D) Uphold the convictions, because Congress could have rationally concluded that in the aggregate intrastate sports betting substantially affected interstate commerce. Congress may regulate intrastate activities, no matter how local or noncommercial, as long as it could rationally conclude that in the aggregate those activities would substantially affect interstate commerce. Therefore, D is the correct answer. A is incorrect because the Court has focused on the economic nature of the activity to aggregate it, regardless of whether it was "commercial." B is incorrect because under certain conditions Congress can reach intrastate activity under the Commerce Clause. C is incorrect because it conflates two separate powers: Congress may regulate interstate commerce and Congress may tax and spend for the general welfare.

State A, concerned over the quality of widgets imported from abroad and used in construction projects in the state, recently built, at state expense, a widget factory with up-to-date fabrication equipment and quality control techniques. In addition, State A further passed a law that all widgets used in construction in the state must be purchased from the state plant. A construction company complains that the State A-produced widgets are more expensive than those made overseas and sues in federal court to have the law declared unconstitutional. A reviewing court should: (A) Invalidate the law, because State A is acting as a market regulator. (B) Invalidate the law, because it is facially discriminatory. (C) Uphold the law, because State A is acting as a market participant. (D) Uphold the law, because it treats in-state and out-of-state private sellers identically.

(D) Uphold the law, because it treats in-state and out-of-state private sellers identically. The correct answer is D. The Supreme Court recently created an exception to the anti-discrimination prong of the dormant Commerce Clause doctrine for mandating purchases from public providers of goods or services, at least where the providers were fulfilling traditional governmental functions and where in-state and out-of-state private providers were equally burdened. A is true, and because of it, the market participant exception would not be available to State A, which is why C is also incorrect. B is also true, but as noted, because a public entity is involved, an exception to the dormant Commerce Clause doctrine's anti-discrimination rule is available.

To deal with increasingly complex intellectual property questions, Congress established a specialized court and required that all statutorily defined "intellectual property" cases be filed there exclusively. Appeals are taken to a special intellectual property court of appeals and may, from there, be appealed to the U.S. Supreme Court. Is such an arrangement constitutional? (A) No, because the original jurisdiction of the courts is set in the Constitution. (B) No, because Congress has no power to establish specialized Article III courts. (C) Yes, because Congress has plenary power over the jurisdiction of the federal courts. (D) Yes, because Congress may set the jurisdiction of inferior courts it creates.

(D) Yes, because Congress may set the jurisdiction of inferior courts it creates. Congress may create inferior courts and set their jurisdiction. It may also regulate the appellate jurisdiction of the Supreme Court. The correct answer, therefore, is D. A is an incorrect statement of law because Article states that Congress may create inferior courts. B is incorrect for the same reason. C is incorrect because the Congress may not alter the original jurisdiction of the U.S. Supreme Court, as held in Marbury v. Madison.