Constitutional Law Practice Set 5

A foreign corporation owned cargo containers that were used in international commerce. These containers were registered and subject to taxation on the basis of their full value in the corporation's home country. A state imposed an ad valorem tax on cargo containers owned by the foreign corporation that were found within the state on the annual tax day, as the state did for all such cargo containers found within the state on that day. The number of such containers owned by the foreign corporation in the state on tax day was a fair representation of the number of such containers that could be found within the state on any given day throughout the year. The foreign corporation has challenged in federal court the imposition of this ad valorem tax on its cargo containers as a violation of the Commerce Clause. How is the court likely to rule on this challenge? A. For the foreign corporation, because the tax subjected the corporation to international multiple taxation on the cargo containers. B. For the foreign corporation, because the tax was imposed by a state on foreign commerce. C. For the state, because the state applied the tax in a nondiscriminatory manner to all containers found within the state on tax day. D. For the state, because the tax was fairly apportioned based on the number of cargo containers owned by the corporation that could be found within the state on any given day.

A. A state tax imposed on interstate commerce must satisfy the Complete Auto test. Under this test, (i) the activity taxed must have a substantial nexus to the taxing state, (ii) the tax must be fairly apportioned, (iii) the tax may not discriminate against interstate commerce, and (iv) the tax must be fairly related to the services provided by the state. In addition to meeting the same requirements as a tax on interstate commerce, a state tax on foreign commerce must not (i) create a substantial risk of international multiple taxation or (ii) prevent the federal government from "speaking with one voice" regarding international trade or foreign affairs issues. Under these facts, because the cargo containers are subject to tax by the home country of the foreign corporation, the state tax subjects the containers to international multiple taxation, and thus the first of these two additional requirements has not been met. Consequently, the state tax on the cargo containers owned by the foreign corporation violates the Commerce Clause. Answer choice B is incorrect because a state is not prohibited by the Commerce Clause from taxing foreign commerce. However, in order to do so, the state tax must satisfy not only the Complete Auto test that applies to the taxation of interstate commerce but also two additional requirements imposed on state taxation of foreign commerce. Answer choice C is incorrect. Although the state ad valorem tax is applied in a nondiscriminatory manner and thereby satisfies one element of the Complete Auto test, this tax does not satisfy one of the additional requirements imposed on a state tax placed on foreign commerce. Answer choice D is incorrect because, although the state ad valorem tax was fairly apportioned and thereby satisfied the second element of the Complete Auto test, this tax does not satisfy one of the additional requirements imposed on a state tax placed on foreign commerce.

Congress passed and the President signed into law a national security act delegating authority to the Department of Defense to issue rules governing the criteria by which warrants may be issued for wire taps of individuals on a terrorism watch list. The act provided intelligible standards by which the Department of Defense could issue the rules. In a severable provision, the act also provided that otherwise valid rules issued by the Department of Defense governing these criteria could be set aside by a majority vote of a designated standing joint committee of Congress. The Department of Defense issued a rule setting forth a standard by which the warrants could be issued, and the standing joint committee of Congress has determined that the rule conforms to the intelligible standards and principles in the enabling act. Is Congress constitutionally permitted to set aside this rule by a majority vote of the joint committee? A. No, because Congress may not retain direct control over rules issued by executive agencies through a legislative veto. B. No, because the rule conforms to the intelligible standards and principles in the enabling act. C. Yes, because Congress improperly delegated rule-making power to an executive agency. D. Yes, because the committee is a joint committee of both houses of Congress.

A. Congress cannot unilaterally change the Constitution's requirements with regard to enactment of a law. A congressional "veto" of a matter delegated to the executive branch is unconstitutional as violating the carefully wrought legislative procedures set forth in Article I, which require sending legislation passed by both houses of Congress to the President pursuant to the Presentment Clause for his approval or veto. Here, although Congress properly delegated authority to the Department of Defense to issue this rule, a legislative veto of the rule is unconstitutional. Answer choice B is incorrect because, although the rule does conform to the intelligible principles and standards in the enabling act, Congress cannot retain a legislative veto over the rule. Answer choice C is incorrect. Delegation of some of Congress's authority to the executive branch has consistently been held constitutional, so long as Congress specifies an "intelligible principle" to guide the delegate. Because that standard is met here, the delegation was proper and constitutional. Answer choice D is incorrect. A legislative veto, whether wielded by either house of Congress or both jointly or through a committee, is unconstitutional because it thwarts the process fixed by the Constitution for enacting a law.

A non-U.S. citizen actor was under contract to film a movie in the United States. The actor was a well-known supporter of a political group in his country that had executed various attacks on United States citizens living abroad. The actor publicly stated that he did not condone violence and offered no financial support to the group following such incidents. When the actor attempted to enter the United States, he was refused entry by a federal customs officer pursuant to a federal statute that denies any supporter of the political group entry into the United States. Is this refusal valid? A. Yes, because non-citizens have no absolute right to enter the United States. B. Yes, because non-citizens can be deported if a notice and hearing has occurred. C. No, because the refusal of entry discriminates on the basis of political beliefs. D. No, because the refusal impairs the actor's contractual obligation.

A. Congress has plenary power over non-citizens. Non-citizens have no right to enter the United States and may be refused entry for reasons such as their political beliefs. Note that had the facts mentioned that the actor was a resident non-citizen threatened with deportation rather than a non-citizen denied entry into the country at all, he would have been subject to deportation, but only after notice and a hearing. Answer choice B is incorrect because while the statement is true, there is no indication the actor is being deported; he is being denied entry. Further, the facts do not describe any notice or hearing, so this statement also incorrectly assumes facts. Answer choice C is incorrect because non-citizens may be refused entry to the United States for reasons such as their political beliefs. Such refusal of entry does not constitute discrimination but rather is a valid exercise of Congressional authority. Answer choice D is incorrect because the Impairment of Contract Clause only applies to state legislative state action. The actor was denied entry by a federal official.

The jury commissioner at a state court was charged with stealing the identities of dozens of potential jurors. She readily confessed to her crime to her employer immediately after the allegations of her behavior surfaced. The county immediately terminated her employment. Both her employment contract and state law clearly stated that jury commissioners can be terminated only if there is just cause to do so. A hearing was scheduled for a week following the commissioner's termination. The commissioner filed suit to have herself reinstated as commissioner. She alleged that, because she had not been convicted, she was entitled to a pre-termination notice and an opportunity to respond. Has the commissioner likely received the due process to which she is entitled? A. Yes, because she will receive a prompt post-termination hearing. B. Yes, because no hearing is required when there is cause to terminate the employee. C. No, because she has not been convicted of a crime. D. No, because she did not receive a pre-termination hearing.

A. Generally, a public employee who may be discharged only for cause has a property interest in her job, and therefore is entitled to notice of termination and a pre-termination opportunity to respond. A formal pre-termination hearing, however, is not required. If there is a significant reason for immediately removing a "for-cause" employee from the job, a prompt post-termination hearing with reinstatement and back pay if the employee prevails constitutes sufficient due process. Here, the commissioner's theft of information directly related to her position as jury commissioner and the ability to continue such criminal behavior is a justification for her immediate removal as commissioner. Accordingly, only a post-termination hearing is required, and as that hearing is set for the week following the commissioner's termination, the commissioner has likely received proper due process. Answer choice B is incorrect because, even though there is justification for the immediate removal of the commissioner, she is still entitled to a post-suspension hearing. Answer choice C is incorrect because, although the conviction of a crime would constitute just cause for removal, her contract only requires just cause, which is satisfied by her confession to committing the identity thefts. Answer choice D is incorrect because no pre-termination hearing is required in light of the justification for immediately removing the commissioner from her position.

A public square located in a major city contained a number of statues of historical figures, including religious ones. Members of various religions came to the square to pray in front of the religious statues. One religious statue depicted the founding member of a particular religious sect. Under the sincerely held beliefs of the sect, sect members were not permitted to worship or pray at any religious statue until sundown. The sect used the statue in the square as a place of worship and prayer on a regular basis, considering it sacred. As a result of an outbreak in crime in the square at night, the city enacted an ordinance prohibiting the presence of any persons in the square after sundown. The sect challenged the ordinance on the ground that it violated the Free Exercise Clause. Will the sect's challenge to the ordinance be successful? A. No, because the ordinance was not enacted to target the sect's religious practices. B. No, because the ordinance is a valid time, place, or manner restriction. C. Yes, because the ordinance restricted the sect's religious practices. D. Yes, because the ordinance did not impact the practice of other religions.

A. Generally, only state laws that intentionally target religious conduct are subject to strict scrutiny. Neutral laws of general applicability that have an impact on religious conduct are subject only to the rational basis test. In this case, there are no facts to suggest that the ordinance was enacted to intentionally target the sect's religious conduct. Instead, the ordinance was enacted due to an outbreak of crime at night in the square. Although the ordinance has a disparate impact on the sect's exercise of religion, the ordinance is a neutral law of general applicability, subject only to rational basis review. Therefore, the sect's challenge will not be successful. Answer choice B is incorrect. The ordinance is a valid time, place, or manner restriction because it restricts the time in which a person can conduct speech and related activities in the square, a public forum, and does not do so based on the content of the speech. However, the challenge here was brought under the Free Exercise Clause, not a freedom of speech challenge. Thus, the analysis is concerned with whether the ordinance intentionally targeted this particular religious sect, regardless of whether it was a valid time, place, or manner restriction. Answer choice C is incorrect. The mere fact that the ordinance restricted the sect's religious practices, without evidence that the ordinance intentionally targeted the sect, is not enough to render the ordinance unconstitutional. Answer choice D is incorrect because the existence of a disparate impact on a particular religion is not sufficient in and of itself to constitute a violation of the Free Exercise Clause.

A professor was granted tenure at a specific state university. As a tenured faculty member, he was entitled to continued employment at that university until retirement or resignation unless he was terminated for good cause. For the next 10 years, he taught at the university. Then, facing a budget deficit, the state legislature abolished that specific university. Consequently, after receiving notice, the professor was terminated without any hearing. Have the professor's procedural due process rights been violated? A. No, because his termination was not an adjudicative act. B. No, because the professor received notice of his termination. C. Yes, because he had tenure. D. Yes, because he was terminated without a hearing.

A. Procedural due process only applies in quasi-judicial or adjudicatory settings, and not with respect to the adoption of general legislation. Here, the professor was not terminated as an individual, but instead as a consequence of the abolition by the legislature of the specific university at which he was granted tenure. Therefore, his termination did not trigger his procedural due process rights. Answer choice B is incorrect. Generally, procedural due process requires both notice and a hearing when a person is deprived of life, liberty, or property. Here, although the professor was deprived of a property interest (i.e., his tenured position at a specific university), the deprivation was not the result of an adjudicatory process, but instead a legislative one. As such, as a matter of procedural due process, he was entitled to neither notice nor a hearing regarding his termination. Answer choice C is incorrect because, although his tenure meant that the professor had a property right in his employment at the university, his termination was not the result of an adjudicatory process, but instead a legislative one. As such, as a matter of procedural due process, he was entitled to neither notice nor a hearing regarding his termination. Answer choice D is incorrect because, although the professor was terminated without a hearing, since his termination was a consequence of a legislative act rather than an adjudicatory act, his termination did not violate his procedural due process rights.

A congressional committee concluded that the national rate of interstate sex trafficking has been skyrocketing due to law enforcement's inability to properly monitor and shut down online auctions of kidnap victims. In an effort to combat sex trafficking, Congress passed a statute making it a capital offense to transport any kidnap victim across state lines with financial motivations. Which of the following best supports congressional authority to pass this statute? A. The Commerce Clause of Article I, Section 8 B. The federal police power C. The Enabling Clause of the Fourteenth Amendment, Section 5 D. The Necessary and Proper Clause of Article I, Section 8

A. The Commerce Clause empowers Congress to regulate interstate commerce. The term "commerce" has been defined to include essentially all activity involving or affecting two or more states, including the interstate movement of kidnap victims. Therefore, the Commerce Clause provides the strongest authority for this statute. Answer choice B is incorrect because there is no federal police power. Congress has no general police power to legislate for the health, safety, welfare, or morals of citizens. Answer choice C is incorrect. The Enabling Clause of the Fourteenth Amendment, Section 5 permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the amendment. Because that is not the purpose of the federal statute in question, this does not provide Congress with the authority to pass the statute. Answer choice D is incorrect because the Necessary and Proper Clause only enables Congress to act in furtherance of another enumerated power. On its own, this clause does not enable Congress to pass this statute.

A recently enacted state statute permits a taxpayer to pay state taxes with electronic currency, known as crypto currency. Of the following, which provides the strongest basis on which to challenge the constitutionality of the statute? A. The Supremacy Clause of Article VI of the U.S. Constitution B. The Contract Clause of Article I, Section 10 of the U.S. Constitution C. The Dormant Commerce Clause of Article I, Section 8 of the U.S. Constitution D. The Tenth Amendment to the U.S. Constitution

A. The Supremacy Clause makes the U.S. Constitution, as well as federal laws and treaties, the "supreme law of the land." Under Article I, Section 10 of the U.S. Constitution, a state is prohibited from coining money or making anything but gold and silver coin a tender in payment of debts. Consequently, the state statute is authorizing the payment of a debt in a form that the U.S. Constitution prohibits it from doing. Answer choice B is incorrect because the state statute neither impairs the state's contractual obligations nor requires that crypto currency be used by a taxpayer in paying state taxes. Instead, it merely provides another form in which a taxpayer may make such payments. Answer choice C is incorrect. The Dormant Commerce Clause imposes limits on the power of a state to legislate in ways that impact interstate commerce, and the use of crypto currency to make payments could arguably involve interstate commerce. However, the statute does not discriminate against out-of-state commerce, unduly burden interstate commerce, or regulate extraterritorial (wholly out-of-state) activity. Answer choice D is incorrect. The Tenth Amendment provides that all powers not assigned by the Constitution to the federal government are reserved to the states, or to the people. However, this does not include powers delegated to the federal government by the Constitution.

A state recently enacted a consumer protection statute preventing the in-state sale of avocados containing less than 8 percent oil to ensure that only mature avocados were marketed within the state. Pursuant to a federal law that permitted fruit growers in economically depressed areas to cooperatively fix marketing rules for the orderly and economically efficient marketing of fruit for the benefit of both the local and national economy, avocado growers in a neighboring state, an economically depressed area, determined the marketability of avocados based solely on the size and color of the avocado. In accordance with the federal law, the U.S. Secretary of Agriculture approved this marketability rule. A significant number of avocados in the economically depressed state that met the federally approved rule would be excluded from sale in the first state by that state's consumer protection statute. Although no growers from the economically depressed state have yet tried to sell their avocados in the first state, they intend to do so to expand their market and alleviate their economic distress. The cooperative formed by these growers to oversee the marketing rules and advocate for the growers filed an action in federal court against the officials in the first state, seeking to enjoin those officials from enforcing the statute. Which of the following arguments is the best argument for the officials in the first state? A. The first state's statute is a valid exercise of the police power and is not preempted by federal law. B. The Eleventh Amendment prevents this suit. C. The cooperative lacks standing to sue. D. The federal law is unconstitutional because Congress cannot regulate intrastate activity.

A. The Tenth Amendment gives states all powers that are not expressly granted to the federal government by the Constitution—e.g., police power to regulate the state's economy for the benefit of its citizens and industries. And though the federal government and the states can regulate the same subject matter, a state law is void when federal law expressly or impliedly preempts it. The first state's statute is not expressly preempted by the federal law. In addition, the state statute arguably is not impliedly preempted because there is no indication that the federal law intended for the marketing rules to occupy the field. In addition, the state statute does not directly conflict with the federally approved rule. It does not prevent the growers in the economically depressed state from complying with their marketing rule. Also, the state statute does not indirectly conflict with the federal law because the state statute does not deal with the same purpose, and the economically depressed state's federally approved rule was adopted to improve economic conditions, while the state statute seeks to protect consumers from immature avocados. Although there could be an argument that the state statute undercuts the economic stimulation purpose of the federal statute, the absence of preemption is the state official's best argument. Note that if there has not been federal preemption in a given area, a state is free to set more stringent standards than those imposed by the federal government, as occurred here. Therefore, the state official's best argument is that the first state's statute is a valid exercise of the police power and is not preempted by federal law. Answer choice B is incorrect because the Eleventh Amendment does not apply to suits against state officials when the relief sought is an injunction rather than damages. Answer choice C is incorrect because an organization, such as the cooperative, has standing if it has suffered an injury and i) its members would have standing to sue in their own right; and ii) the interests at stake are germane to the organization's purpose. Its members have standing when they suffered an injury-in-fact that was caused by the defendant and is redressable by the remedy sought. An injury-in-fact exists if the members have suffered an actual harm or will suffer an imminent harm that is concrete and particularized. Although no grower has yet suffered harm by being denied the right to sell avocados in the first state, they intend to do so to expand their market and alleviate their economic distress. And since a significant number of their avocados will be excluded from sale due to the first state's statutes, they have suffered an injury-in-fact caused by the state statute that can be alleviated if the court grants their request for an injunction. These interests are germane to the cooperative's purpose to advocate for the growers, so the cooperative has standing to sue. Answer choice D is incorrect because Congress can regulate intrastate activity that has a substantial economic effect on interstate commerce. When that activity is economic, such as the marketing of avocados, the substantial economic effect is presumed.

Congress has created a for-profit corporation to provide passenger railroad service in the United States. The governing statute provides that the corporation is not an agency or instrumentality of the federal government. Pursuant to the statute, six out of the eight members of the corporation's board of directors are appointed by the President. Of those six members, four are subject to the advice and consent of the Senate. A private individual sought to advertise a political message on an electronic billboard inside a train station owned by the corporation. The corporation had an advertising policy, adopted by the board of directors, of rejecting all political advertisements. Based on this policy, the corporation refused to allow the advertisement. The individual has challenged this refusal as a violation of his First Amendment free speech rights.Does the corporation's refusal constitute state action for purposes of the individual's constitutional challenge? A. Yes, because the corporation is created and controlled by the federal government. B. Yes, because the denied message was political in nature. C. No, because the governing statute specifically provides that the corporation is not an agency or instrumentality of the federal government. D. No, because the corporation is a for-profit entity.

A. The corporation was created and controlled by the federal government. As such, an action taken by the corporation in accord with a policy adopted by the corporation's board of directors constitutes governmental action for purposes of determining whether the action violates the plaintiff's constitutional rights under the First Amendment. Answer choice B is incorrect because, while the nature of the message that the individual sought to advertise can affect whether the corporation's rejection of the advertisement is constitutionally permissible, the message and its nature is not relevant to whether the corporation is a governmental entity. Answer choice C is incorrect. While congressional characterization of an entity as a non-governmental agency may be controlling with regard to issues such as applicability of the doctrine of sovereign immunity to a tort action brought against the entity, a corporation created and controlled by the federal government is part of the government for the purposes of the First Amendment. Answer choice D is incorrect because, although the corporation is a for-profit entity, the creation and control of the corporation by the federal government is determinative of whether its conduct constitutes governmental action for the purposes of this constitutional challenge to its action.

A tomato farmer in a small state developed a special variety of tomatoes. In addition to being delicious and standing up well during transport, these tomatoes were higher in vitamins and nutrients than other tomatoes. Due to the successful sale of these tomatoes, other farmers outside of the state began growing similar tomatoes and selling them at a lower price. The out-of-state farmers have contracts to sell their tomatoes to discount markets in the state. The out-of-state tomatoes are similar in taste and durability to the special variety, but lack the heightened nutritional value. Nevertheless, because of their lower cost, they are cutting into the sales of the special variety. Accordingly, the state legislature enacted a law "to ensure the health and vitality of its citizens by protecting them from imitation, nutritionally-deficient fruits and vegetables, and to preserve the integrity and prosperity of the state's local produce industry." Among other things, the law forbids the future sale of any tomatoes within the state that fail to meet the nutritional value of the state's own special varietal of tomatoes; no other tomato meets this requirement. Is the state's law constitutional? A. No, because the law discriminates against out-of-state commerce. B. No, because the law interferes with potential contracts between the tomato farmers and the discount markets. C. Yes, because the law furthers the legitimate state interest of preserving the health of its citizens and its farm industry. D. Yes, because the law does not regulate conduct that occurs beyond its borders.

A. The so-called Dormant Commerce Clause prohibits states from discriminating against out-of-state commerce, unduly burdening interstate commerce, or regulating extraterritorial activity. A state law discriminates against out-of-state commerce if it protects a local interest at the expense of out-of-state competitors, and will be held unconstitutional unless the state can prove that a legitimate state interest is being served that cannot be served by non-discriminatory legislation. While the health of state citizens is an important local interest, the state can probably protect that interest by less discriminatory means (e.g., by providing nutritional information on a label). Accordingly, the law violates the Dormant Commerce Clause. Answer choice B is incorrect because, although states may not pass any law that retroactively impairs contractual rights, the statute in question applies only to future contracts for sale of the out-of-state tomatoes. Answer choice C is incorrect because, while the health of state citizens is certainly an important local interest, it does not justify the law because the state can probably protect that interest by less discriminatory means. Answer choice D is incorrect. Although the law does not preclude the growing or marketing of tomatoes in another state, it is unconstitutional because it discriminates against out-of-state commerce.

The director of a community outreach program operated by a local government agency uncovered information that an employee of the program who was also a public official was grossly over reporting the number of hours she worked on her time sheets. The director fired the employee. Consequently, the employee became the subject of a criminal investigation that lead to her being charged with fraud and theft. In response to subpoenas, the director, who himself was an at-will employee, truthfully testified under oath both before a grand jury and at trial about the dismissed employee's falsified time sheets. Shortly thereafter, the director was fired in retaliation for his testimony.Can the director successfully seek reinstatement? A. Yes, because the director was fired in retaliation for speech made as a citizen about a matter of public concern. B. Yes, because the director testified pursuant to subpoenas. C. No, because the director was speaking as a public employee pursuant to his official duties about matters learned in the course of his employment. D. No, because the director was an at-will employee who may be dismissed without cause.

A. When a government employee contends that his rights under the Free Speech Clause of the First Amendment have been violated by his employer, the employee must show that he was speaking as a citizen on a matter of public concern. In determining whether a government employee is speaking pursuant to his official duties, the critical question is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties. When a public employee is speaking about a matter of public concern as a citizen rather than as employee, the First Amendment interest of the employee must be balanced against the interest of the state, as an employer, in effective and efficient management of its internal affairs. Here, the director was compelled to testify and did so truthfully. There is no evidence in the fact pattern to suggest that testifying in this manner was ordinarily within the scope of his duties. Rather, the testimony merely concerned information he learned in the course of his duties. Moreover, the fact pattern explicitly provides that his firing was done in retaliation for that testimony rather than on the basis of the government's needs as an employer. Consequently, the director can successfully seek reinstatement. Answer choice B is incorrect. Although the director was compelled to testify, he still could have been dismissed if his official duties typically involved testifying for the community outreach program. Here, the reason that the director may seek reinstatement is not because he was subpoenaed, but because he was fired in retaliation for protected speech as a citizen on a matter of public concern. Answer choice C is incorrect. In determining whether a government employee is speaking pursuant to her official duties, the critical question is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties. In this case, although the director was testifying about matters that he learned during the course of his employment, he was testifying in response to subpoenas as a citizen rather than as a public employee. Answer choice D is incorrect. Although an at-will public employee may not have a legitimate property interest in continued public employment and may generally be dismissed without cause, even an at-will employee may not be dismissed for reasons that in and of themselves violate the Constitution, such as in retaliation for protected speech.

A state healthcare act contained an ambiguous provision regarding the requirements for an insured person to bring a claim against an insurer. This provision in the state healthcare act was identical to one in the federal healthcare act, and relied in part on definitions contained in the federal act. An insurance company was sued under the state healthcare act. In its defense, the insurance company claimed that, based on the ambiguous provision, it could not be sued under the state act. When the case reached the state's highest court, that court sided with the insurance company, but it was unclear whether the court's decision relied on the court's interpretation of definitions contained in the federal act. The insured person petitioned the U.S. Supreme Court for review of the state court's decision. Is it constitutional for the Supreme Court to review the state court's decision? A. Yes, because the Supreme Court may review any final judgment rendered by the highest court of a state. B. Yes, because the Supreme Court may determine whether the state court decision relied upon a determination of a federal issue. C. No, because the state court's decision could rest on adequate and independent state grounds. D. No, because the suit by the insured person against the insurance company involved a state, not federal cause of action.

B. Although a final state-court judgment that rests on adequate and independent state grounds may not be reviewed by the U.S. Supreme Court, the Supreme Court may constitutionally review a state court decision to determine whether such grounds exist. Here, because it is unclear whether the state court opinion relied on the court's interpretation of definitions in the federal healthcare act, the Supreme Court may review the state court decision to make that determination. If the Supreme Court finds that the state court decision turns on a federal issue, then the Supreme Court may rule on whether the state court correctly decided the federal issue. If not, then the Supreme Court must dismiss the appeal. Answer choice A is incorrect because it overstates the power given to the Supreme Court by the Supremacy Clause. The Supreme Court may review a state court decision that involves a federal issue, but it may not review a state court decision that rests solely on adequate and independent state grounds. Answer choice C is incorrect. Although the state court decision could rest on adequate and independent state grounds, the Supreme Court may review the decision to determine whether it does. If it does, then the Supreme Court must dismiss the appeal. Answer choice D is incorrect. Even though a suit is based on a state cause of action, the Supreme Court may hear an appeal involving a federal issue that impacts the state cause of action.

A federal statute requires any owner of a motor vehicle who removes a non-functioning battery from the vehicle to dispose of the battery in a federally designated recycling facility. The statute includes a state within its definition of an owner. A state owns a fleet of motor vehicles. Some of the vehicles are used to carry out traditional government functions, such as policing and firefighting, while the remaining vehicles are used in commercial activities conducted by the state. The state disposes of non-functioning batteries taken from all of its vehicles in a state recycling facility instead of a federally designated recycling facility. Is the state constitutionally justified in the disposing of its batteries in this manner? A. No, because of the Full Faith and Credit Clause. B. No, because the state is not complying with the federal statute. C. Yes, but only for the batteries from vehicles used to carry out traditional government functions. D. Yes, but only for the batteries from vehicles used in commercial activities.

B. As long as Congress is exercising one of its enumerated powers, Congress generally may regulate the states. Congress has the power to regulate the instrumentalities (cars, trucks, ships, airplanes, etc.) of interstate commerce pursuant to the Commerce Clause. The right of Congress to enact legislation in furtherance of the Commerce Clause is broadly construed by the Supreme Court. Consequently, the state's failure to dispose of its motor vehicle batteries in a federally designated recycling facility is constitutionally unjustified. Answer choice A is incorrect because the Full Faith and Credit Clause applies to "public acts, records, and judicial proceedings of every other state." It does not apply to a state's failure to dispose of its non-functioning batteries in a way designated by federal statute. Answer choice C is incorrect because, although a state or local government may favor state and local government entities when those entities are performing a traditional governmental function without running afoul of the Dormant Commerce Clause, this special treatment of a state or local government action does not authorize a state to act in conflict with a federal statute. Answer choice D is incorrect because, although a state may behave in a discriminatory fashion if it is acting as a market participant without running afoul of the Dormant Commerce Clause, this special treatment of a state does not authorize a state to act in conflict with a federal statute.

A state statute imposes a special tax on the receipts of publishers from the sale of magazines within the state. The statute exempts religious, professional, and trade magazines from this tax. The publisher of a general-interest magazine filed suit in federal court contending that the selective application of this tax was unconstitutional. Is the court likely to hold in favor of the plaintiff? A. Yes, because publishers enjoy greater First Amendment rights than the general public. B. Yes, because the selective application of the tax violates the First Amendment rights of the plaintiff. C. No, because unlike the federal government, a state is not confined to the exercise of specifically enumerated powers. D. No, because the selective application of the tax is rationally related to a legitimate purpose.

B. Due to the exemption granted to religious, professional, and trade magazines, the selective application of the tax constitutes a content-based restriction on the plaintiff's speech. As such, it is subject to strict scrutiny. Consequently, the state is unlikely to be able to establish that it has a compelling governmental interest that the selective tax system is necessary to achieve, and that this system is narrowly tailored to meet that interest. Answer choice A is incorrect because publishers do not enjoy greater First Amendment rights than the general public. A publisher is subject to a generally applied tax to the same extent as any other citizen would be. Answer choice C is incorrect because, while it is true that a state, unlike the federal government, is not confined to the exercise of specifically enumerated power, a state is subject to the constraints of the First Amendment via the Fourteenth Amendment. Therefore, this rule is not determinative here. Answer choice D is incorrect because, even assuming that the selective application of the tax is rationally related to a legitimate purpose, this is the incorrect standard to apply in assessing the constitutionality of this state action. Instead, because the selective application of the tax is a content-based restriction on free speech, it must instead satisfy the strict scrutiny test.

Last year, Congress enacted legislation providing for funding opportunities to eligible secular and religiously affiliated colleges and universities. The funding will be available through individual counties as each county's funding limitations allow. The legislation does not require that each county apply standard guidelines nor does it provide any suggested guidelines other than a statement that "all counties should track funding and compile guidelines in the event of a federal audit."A county awards a large grant to a religiously affiliated college that employs a substantial number of residents. The grant contract, signed by representatives from both the county and the college, states as follows: "All grant monies must be used in compliance with county regulations. Further, the college must track the allocation of grant monies throughout the grant term."Is the county's award of the grant constitutional? A. No, because the county provided grant monies to a religiously affiliated college. B. No, because it does not require that the aid be used only for nonreligious purposes. C. Yes, because the college is required to track funding. D. Yes, because the college may be the subject of a federal audit.

B. Governmental financial assistance to religious institutions is permitted if the aid is secular in nature, used only for secular purposes, and, when the aid is distributed among secular and religious institutions, the distribution criteria must be religiously neutral. Answer choice A is incorrect because the government can provide grants to religiously affiliated colleges, provided the aid is secular in nature, used only for secular purposes, and the distribution criteria must be religiously neutral. Answer choice C is incorrect because tracking funding is insufficient; the government must explicitly require that funds not be used for religious purposes. Answer choice D is incorrect because even if a federal review of the award process does occur, the application of the regulations might still be unconstitutional. There is no indication that the county requires that the aid be spent for nonreligious purposes only.

A federal law gives the President the power to cancel any limited tax benefit contained in a statute. The act requires the President to notify Congress within five days after the enactment of the cancelled benefit. The cancellation takes effect immediately, but may become null and void if Congress passes a disapproval bill by a simple majority in each house. A primary purpose of the law is to discourage Congresspersons from seeking favorable tax treatment for specific constituents within the confines of a more comprehensive tax law. Subsequently, a federal tax act was passed that contained a provision granting a tax credit that, although generically worded, applied to a single constituent of the Congressman who proposed the provision. The President, pursuant to the prior federal law, cancelled the provision granting the tax credit. Congress took no action to reinstate this credit. The recipient of this tax credit has challenged the constitutionality of the law that permitted the President to cancel this tax benefit. Of the following, which would provide the strongest constitutional basis on which to base this challenge? A. The Origination Clause of Article I, Section 7 of the United States Constitution B. The Presentment Clause of Article I, Section 7 of the United States Constitution C. The Prohibition on bills of attainder in Article I, Section 9 of the United States Constitution D. The Takings Clause of the Fifth Amendment to the United States Constitution

B. The Presentment Clause requires any bill that has been passed by Congress to be presented to the President. If the President signs the bill, it becomes law. If the President does not, it may either become law or not depending on whether the President vetoes it (either directly or via a "pocket veto"), and if by a direct veto, whether Congress overrides the President's veto. The federal law that effectively gives the President a so-called "line-item veto" thwarts the procedure set out in the Presentment Clause. Answer choice A is incorrect because the Origination Clause of Article I, Section 7 requires that a bill for raising revenue originate in the House, rather than the Senate. The law being challenged, the "line-item" veto statute, was not a revenue bill. Therefore, the Origination Clause is unlikely to apply. Answer choice C is incorrect. Although Article I, Section 9 does prohibit Congress from enacting a bill of attainder (i.e., a legislative act that declares a person or group of persons guilty of some crime and punishes them without a trial), the "line-item" veto statute does not impose a criminal penalty on the recipient of a tax benefit. Instead, the statute merely allows the President to deny the recipient that tax benefit by vetoing only that benefit. Answer choice D is incorrect because the Takings Clause of the Fifth Amendment applies to the taking of private property for a public purpose without just compensation. The recipient of the tax credit does not have a property interest in that tax credit, particularly a tax credit that is void before it becomes law.

At a hearing on legislation supported by the President, a senator made a slanderous statement about the President. Later the same day, the senator, during an interview with a reporter, repeated the statement, seeking to motivate citizens to contact their congresspersons to encourage them to vote against passage of the legislation. Within hours of learning of the senator's statement, the President made an official statement at a press conference maligning the senator, falsely accusing her of taking bribes, and then encouraging the rest of the Senate to vote in favor of the legislation.If a civil suit for money damages is filed against either the President or the senator as a result of the statements, who may properly be held liable? A. Neither the President nor the senator, because neither exceeded the immunity of their offices. B. The senator only, because she exceeded her legislative immunity. C. The President only, because he exceeded his executive immunity. D. Both the President and the senator, because each exceeded the immunity of their offices.

B. Although members of Congress, such as senators, enjoy immunity for statements made in the regular course of the legislative process (e.g., during legislative hearings on a bill), immunity will not protect statements made outside of Congress. Accordingly, immunity will not extend to a "re-publication" of a defamatory statement, even if that statement was originally made in the Senate. The President has no immunity from a civil action based on conduct alleged to have occurred before the President took office or completely unrelated to carrying out his job. However, the President may not be sued for civil damages with regard to any acts performed as part of the President's official responsibilities. Therefore, the President may not be sued for civil damages with regard to his statements at the press conference. Answer choice A is incorrect because it improperly extends legislative immunity. Answer choice C is incorrect because it both ignores executive immunity and improperly extends legislative immunity. Answer choice D is incorrect because it improperly states that the senator enjoys immunity for the republication of the defamatory statement.

A wastewater treatment facility was fined for violation of a state law regarding the discharge of pollutants into water sources. The facility challenged the penalty in state court on the basis that the state law conflicted with federal law. In the court's opinion, which sided with the facility, the court analyzed the state statute in light of federal law regarding a variety of issues related to pollution and the water source into which the pollutants were discharged, but failed to clearly indicate the basis for its decision. On appeal, the decision was affirmed per curiam by the highest court of the state. The state appealed the decision to the U.S. Supreme Court. If the Supreme Court were to review this case, what would be the most likely reason allowing such review? A. Federal law would consider the discharge from the facility to be illegal pollution. B. The state court decision incorrectly applied state law. C. The state court decision relied on federal law. D. The U.S. Supreme Court is required to hear the case.

C. A final state court judgment that rests on adequate and independent state grounds may not be reviewed by the U.S. Supreme Court. The state law grounds must fully resolve the matter (i.e., be adequate) and must not incorporate a federal standard by reference (i.e., be independent). When it is not clear whether the state court's decision rests on state or federal law, the Supreme Court may hear the case, decide the federal issue, and remand to the state court for resolution of any question of state law. Answer choice A is incorrect because, regardless of whether the facility's discharge of the pollutants was illegal, the Supreme Court's ability to review a final state judgment would hinge on whether the decision was based on adequate and independent state grounds. Here, the decision cited both federal and state law, allowing for the Supreme Court to review the decision. Answer choice B is incorrect because the Supreme Court generally lacks jurisdiction to review a state court decision applying state law. Answer choice D is incorrect because the Supreme Court may hear the case but is not required to do so.

A recently enacted state statute bans the importation of unshelled pecans into the state from other states. The statute is designed to protect pecans grown in the state from insects that live in the shells of pecans. The insects have not been found in the pecans grown in the state. An out-of-state grower and seller of pecans has challenged the statute in federal court as a violation of the Dormant Commerce Clause, alleging that the statute facially discriminates against out-of-state commerce. Should the court grant judgment to the out-of-state grower? A. Yes, because the statute facially discriminates against pecans grown out-of-state, constituting a per se violation of the Dormant Commerce Clause. B. Yes, if the out-of-state grower can also establish that the statute imposes an undue burden on interstate commerce. C. No, if the state can establish that no other nondiscriminatory means are available to protect the health of locally grown pecans. D. No, because the state can establish a substantial nexus between the health of locally grown pecans and the import of out-of-state pecans.

C. A state statute discriminates against out-of-state commerce if it protects local economic interests at the expense of out-of-state competitors, which this statute clearly does. If a state statute, on its face or in practice, is discriminatory, then the statute may be upheld if the state can establish that (i) an important local interest is being served, and (ii) no other nondiscriminatory means are available to achieve that purpose. While the state can show that an important local interest is being served, the state must also show that no other nondiscriminatory means are available to achieve the state's purpose of protecting the health of locally grown pecans. Answer choice A is incorrect because a facially discriminatory state statute may nevertheless be upheld if it serves an important local interest and no other nondiscriminatory means are available to achieve that purpose. Answer choice B is incorrect. In order for a plaintiff to establish that the Dormant Commerce Clause prohibits a state statute, the plaintiff needs to show that the statute either discriminates against out-of-state commerce or places an undue burden on interstate commerce. The plaintiff need not establish both discrimination against out-of-state commerce and an undue burden on interstate commerce. Answer choice D is incorrect because the substantial nexus test is relevant to state taxation of commerce, not the Dormant Commerce Clause.

A state airport commission adopted a regulation prohibiting the solicitation of money inside airport terminals, but permitted the solicitation of money on the pathways outside the terminals where travelers were accessible. The commission adopted the regulation due to the disrupting effect solicitation had on travelers attempting to reach their gates, causing delays and congestion in the terminals. Fundraisers from an organization devoted to raising money to help cure cancer attempted to solicit donations in the airport terminal, and were detained for violating the regulation. The organization has challenged the constitutionality of the regulation. Is the regulation constitutional? A. No, because a ban on all solicitation is not narrowly tailored to serve a significant government interest. B. No, because the regulation preventing solicitation in airport terminals is not content neutral. C. Yes, because the ban on solicitation is reasonably related to a legitimate government interest. D. Yes, because the regulation leaves open ample alternative channels for communication on the sidewalks outside the airport terminals.

C. Applicable to the states via the Fourteenth Amendment, the First Amendment generally prohibits the government's ability to restrict speech. However, the government may regulate speech-related activities in nonpublic forums as long as the regulation is (i) viewpoint-neutral and (ii) reasonably related to a legitimate governmental interest. An airport terminal is considered a nonpublic forum. Here, the ban on solicitation in the airport terminals is viewpoint-neutral because it prohibits all types of solicitation; it does not target solicitation based on the specific cause. The ban is also reasonably related to the legitimate governmental interest of avoiding a disruptive effect for travelers inside an airport terminal. Therefore, the regulation is constitutional. Answer choice A is incorrect because it applies the rule applicable to content-based restrictions in a public forum, not a nonpublic forum such as an airport terminal. Answer choice B is incorrect. A regulation in a nonpublic forum need not be content-neutral, but it must be viewpoint-neutral. In other words, the government may prohibit speech on certain issues altogether, but it may not allow only one side of an issue to be presented. Here, the ban on solicitation in the airport terminals need not be content-neutral to be upheld. Answer choice D is incorrect because this is only a requirement to find that a regulation on speech in a public forum is valid. Regulation in nonpublic forums, such as an airport terminal, is not required to leave open ample alternative channels for communication.

In response to an increase in the number of sexual harassment suits filed by government employees, a state passed a statute requiring all government employees to participate in sexual harassment classes. Pursuant to a provision in the statute, the classes would include watching videos depicting common interactions between employees that were considered acts of sexual harassment in the workplace. Accordingly, the state validly contracted with a production company to create the sexual harassment videos. However, before the production company began to create the videos, the state legislature decided that it would be less expensive to create a government employee handbook regarding sexual harassment that could be reviewed by government employees during the sexual harassment classes. As a result, the state amended the statute to exclude the required videos and canceled its contract with the production company. Was the state permitted to amend the statute and cancel the contract? A. Yes, because the production company had not yet started production of the videos when the statute was amended. B. Yes, because the state has the constitutional authority to amend the statute regarding the videos. C. No, because the amendment impairs the state's contractual obligation to the production company. D. No, because the amendment was not substantially related to a compelling government interest.

C. Article I, Section 10 of the U.S. Constitution prohibits states from passing any law "impairing the obligation of contracts." This prohibition applies only to state legislation that retroactively impairs contractual rights. Impairment by the state of a public contract (one to which the state or local government is a party) must be reasonable and necessary. Furthermore, the state must show that its important interest cannot be served by a less-restrictive alternative and that the impairment it seeks is necessary because of unforeseeable circumstances. Here, the amendment retroactively impaired the state's contract with the production company. Although arguably reasonable, there is nothing in the fact pattern to indicate that the government lacked sufficient funds for the creation of the videos. Moreover, there was no unforeseeable circumstance requiring the state to impair the contract with the production company. Therefore, the state was prohibited from amending the statute and canceling the contract. Answer choice A is incorrect because the state cannot retroactively impair the contract even if the production company had yet not started working on the videos. Answer choice B is incorrect because of the prohibition regarding the retroactive impairment of contractual rights. Although the state has the authority to amend statutes, it cannot do so in this case because the amendment resulted in the impairment and cancelation of its contract with the production company. Answer choice D is incorrect because it does not correctly state the test for determining whether the impairment of a public contract by a state is constitutional. The correct test is whether the impairment was reasonable and necessary to serve an important interest, there is no less-restrictive alternative, and the impairment is necessary because of an unforeseeable circumstance.

Congress passed and the President signed into law the Emissions Reduction Act, which requires all car manufacturers in the country to reduce the emissions of all of their vehicles to a certain percentage. The act provides that this percentage is to be set by executive order, but that the percentage must be determined by the application of specified standards and methods. Is the provision of the act allowing the President to set the percentage by executive order likely constitutional? A. No, because it is an impermissible delegation of the power to legislate. B. No, because it violates the Comity Clause of Article IV, Section 2. C. Yes, because Congress provided an intelligible standard for setting the percentage. D. Yes, because the President has the inherent power to issue executive orders governing domestic affairs.

C. Because Congress is vested by Article I with "all legislative powers," it may not delegate that power to any other branch of government. This principle is known as the "nondelegation doctrine." However, delegation of some of Congress's authority to the executive branch has consistently been held constitutional, so long as Congress specifies an "intelligible principle" to guide the delegate. Certain powers are nondelegable (e.g., power of impeachment, power to declare war). Furthermore, an executive agency may not make "decisions of vast economic and political significance" unless Congress clearly gives it decision-making authority in that area (i.e., the major questions doctrine). Here, the congressional act provided an intelligible standard with which to determine the percentage of vehicular emissions to be enforced by executive order. And though the executive order may have vast economic significance, Congress clearly gave the executive branch decision-making authority in this area. Therefore, the provision at issue it is likely constitutional. Answer choice A is incorrect because, due to the intelligible standards provided, this is a permissible delegation of legislative power. Answer choice B is incorrect because the Comity Clause, which provides that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states," is not relevant to this delegation of power between the legislative and executive branches. Answer choice D is incorrect. Although the President may exercise control over agencies by issuing executive orders, he/she still has no inherent power to make laws. Here, the executive orders contemplated by the Act will not manage an executive agency. Instead, because these orders would be directly applicable and enforceable against car manufacturers, they are outside the President's inherent authority. Consequently, with regard to this provision, the President's authority stems directly from congressional authorization of his act and not an inherent power to issue executive orders.

By statute, a state permits gambling by charitable organizations through the use of pull-tab tickets. There is no federal restriction on this type of gambling. The state requires that these tickets be manufactured within the state. This requirement serves the state's legitimate and important interest in ensuring the security and integrity of pull-tab gambling by allowing state regulators to closely monitor the manufacturing processes. In addition, the requirement permits the state to avoid incurring the cost of out-of-state inspection trips. A corporate out-of-state manufacturer of these tickets has challenged the constitutionality of the in-state manufacturing requirement. The manufacturer observes that another state, which also permits gambling through the use of pull-tab tickets, sends its regulators out-of-state and imposes the cost of doing so on the out-of-state manufacturers. Should the court reject this challenge? A. Yes, because the requirement serves a legitimate and important state interest. B. Yes, because there is no federal restriction on this type of gambling. C. No, because the state requirement violates the Dormant Commerce Clause. D. No, because the state requirement violates the Comity Clause of Article IV.

C. Under the Dormant Commerce Clause, a state may not discriminate against out-of-state commerce. Here the state's requirement that pull-tab tickets be manufactured within the state clearly discriminates against out-of-state commerce since it protects in-state manufacturers from out-of-state competition. Such discriminatory regulation is only upheld if the state or local government can establish that an important local interest is being served and no other nondiscriminatory means are available to achieve that purpose. Because a nondiscriminatory means is available, the regulation cannot be upheld. Answer choice A is incorrect because, even though the state has a legitimate and important interest in avoiding costs related to this form of gambling, the state must establish that no other nondiscriminatory means are available to achieve its purpose. However, the manufacturer has pointed out that another state has adopted a nondiscriminatory means (imposing the cost of out-of-state inspections on the out-of-state manufacturers) for achieving that purpose. Answer choice B is incorrect. Congress has exclusive authority over interstate commerce, so it may explicitly permit states to act in ways that would otherwise violate the Dormant Commerce Clause. Although the federal government permits pull-tab gambling, there is no indication that Congress has expressly allowed or affirmatively contemplated the discrimination in question. Answer choice D is incorrect because the Comity Clause only applies to "citizens," not corporations, and the plaintiff is a corporation.

Occupying the field of alien registration, federal law imposes a series of requirements on the registration of aliens, including the requirement that aliens who remain in the United States for more than 30 days must register with the federal government and carry proof of registration. Under federal law, willful failure by an alien to register or carry proof of registration is punishable as a misdemeanor. A recently enacted state statute also makes the willful failure of an alien to register with the federal government or carry proof of registration punishable as a misdemeanor. The federal law does not contain an express preemption of state laws criminalizing the failure of aliens to register or carry proof of registration, nor does it contain a "savings clause" that explicitly allows state laws that regulate the registration of aliens. The state statute has been challenged in federal district court as invalid under the Supremacy Clause of Article VI of the United States Constitution. Is the state statute valid under the Supremacy Clause? A. Yes, because the state statute parallels the federal law by punishing the same conduct and to the same degree as the federal law. B. Yes, because federal law does not expressly preempt state laws criminalizing the failure of aliens to register or carry proof registration. C. No, because the federal law occupies the entire field of alien registration. D. No, because the federal law does not contain a savings clause.

C. When Congress intends for a federal law to occupy the field, such as is the case with regard to the registration of aliens in the United States, federal law preempts state law dealing with the same subject even if federal law does not expressly preempt state law with regard to that subject. Answer choice A is incorrect because implied preemption of state law based on federal occupation of the field reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards. Answer choice B is incorrect because even if federal law does not expressly preempt state law with regard to a certain subject, federal law can impliedly preempt state law when Congress intended for federal law to occupy the field. Answer choice D is incorrect because, while the existence of a saving clause that explicitly allows state law with regard to a subject prevents federal preemption, the absence of such a clause does not by itself establish federal preemption. Instead, a court must examine federal law to determine whether it expressly or impliedly preempts state law.

An individual was physically removed from the premises of a privately owned shopping mall for passing out flyers in support of a candidate for mayor of the city in which the mall was located. The individual challenged this action in state court, contending that her removal violated her free speech rights provided in the state and federal Constitutions. The state court found that the mall's conduct violated both the state constitution and the federal Constitution, and ruled in favor of the individual. The mall appealed to the state supreme court. The state supreme court sustained the ruling of the lower court in part because the state constitution, which protected free speech on privately owned property in certain situations, was clearly violated by the mall's conduct. The court declined to address the issue of whether that conduct violated the federal Constitution. The mall subsequently filed a writ of certiorari with the U.S. Supreme Court. What should the U.S. Supreme Court do in response to the writ of certiorari? A. Affirm the state supreme court's decision B. Reverse the state supreme court's decision C. Remand the case to the state supreme court D. Dismiss the writ of certiorari

D. A final judgment by a state court that rests on adequate and independent state grounds may not be reviewed by the U.S. Supreme Court. The state-law grounds must fully resolve the matter (i.e., be adequate) and must not incorporate a federal standard by reference (i.e., be independent). Here, the state supreme court noted that the state constitution granted more protection to speech than the federal Constitution. Therefore, the state ground relied upon in this case is independent because it does not rely on or incorporate a federal standard. The finding also fully resolves the issue. Because states may grant greater protections than the federal Constitution without violating federal law, once the court found that the mall violated the state constitution it became unnecessary to resolve the federal issue. Thus, the state supreme court's decision rested upon adequate and independent state grounds, and the U.S. Supreme Court should dismiss the writ of certiorari. For this reason, answer choices A, B and C are incorrect.

An Assistant United States Attorney (a federal prosecutor) knowingly presented false evidence against a criminal defendant because he believed that the defendant was having sex with his ex-wife. In doing so, the prosecutor acted with malice and for the sole purpose of preventing the defendant from presenting an effective defense. The defendant brought a civil action in federal court against the prosecutor personally for damages based on the violation of the defendant's Fifth Amendment due process rights. The defendant acknowledges that the prosecutor had jurisdiction to try the case. The prosecutor seeks dismissal on the action on the grounds of immunity.Should the court dismiss the case? A. No, because a prosecutor enjoys only qualified immunity with regard to the violation of a person's constitutional rights. B. No, because the prosecutor acted with malice. C. Yes, because an action for damages may not be maintained against a federal prosecutor. D. Yes, because the prosecutor had jurisdiction to try the criminal case.

D. A prosecutor is absolutely immune from civil liability for damages resulting from his prosecutorial acts unless it is clear that the prosecutor did not have jurisdiction. Since the Assistant United States Attorney in question had jurisdiction to try the criminal case, the court should dismiss the criminal defendant's action. Answer choice A is incorrect because a prosecutor enjoys absolute immunity regardless of the basis for the civil action against him. Answer choice B is incorrect because a prosecutor enjoys absolute immunity from civil liability for damages resulting from his prosecutorial acts, even when they are done with malice. Answer choice C is incorrect because a prosecutor may be sued for damages for conduct that is unrelated to the prosecutor's prosecutorial role, such as when the prosecutor is acting as an administrator with respect to personnel, for example.

A federal statute imposes a $250 tax on all new motorcycles sold in the United States, with all proceeds of the tax allocated to a special fund for local police departments in every state to purchase body armor.Is the statute constitutional? A. No, because equipping local police departments is not one of the enumerated powers of Congress. B. No, because the tax is not rationally related to the use of the proceeds. C. Yes, because providing police officers with body armor is a compelling government interest. D. Yes, because it is a reasonable exercise of Congress's power to tax and spend.

D. Article I, Section 8, clause 1 of the Constitution gives Congress broad power to tax and spend for the general welfare. The spending power has been interpreted very broadly, and Congress may spend for any public purpose, and not just to pursue its other enumerated powers. Answer choice A is incorrect because Congress may exercise its spending power for the general welfare, which is for any public purpose, even if the spending is being used to indirectly affect areas that Congress cannot directly regulate. Answer choice B is incorrect because a tax by Congress will generally be upheld if it has a reasonable relationship to revenue production. Answer choice C is incorrect because Congress has the plenary power to raise revenue through the imposition of taxes. There is no need to show that the tax is necessary to achieve a compelling government interest.

Investors brought an action under federal law for fraud in the sale of securities against an investment company. The action was dismissed with prejudice by the federal district court because it was not timely filed. The investors did not appeal this dismissal. Congress then passed legislation permitting the investors to reinstate this action. The investors petitioned the district court for reinstatement of their action. Of the following, which would serve as the best ground for the investment company to challenge the constitutionality of this law? A. Bill of Attainder Clause of Article I, Section 9 of the U.S. Constitution B. Due Process Clause of the Fourteenth Amendment C. Ex Post Facto Clause of Article I, Section 9 of the U.S. Constitution D. Separation of powers doctrine

D. Congress may not reinstate the right to bring a legal action after the judgment in the action has become final. Requiring a federal court to do so violates the separation of powers doctrine. Once a judicial decision becomes the final word of the federal judiciary with regard to a particular case or controversy, Congress may not declare by retroactive legislation that the law applicable to that particular case was different from what the courts said it was. Answer choice A is incorrect. A bill of attainder is a legislative act that declares a person or group of persons guilty of some crime and punishes them without a trial. Although the federal government as well as the states are constitutionally prohibited from enacting such legislation, the statute in question is not a bill of attainder because it did not declare the defendant investment company guilty of a crime and punish it without a trial. Answer choice B is incorrect because the Due Process Clause of the Fifth Amendment, not the Fourteenth Amendment, applies to the federal government. Answer choice C is incorrect. Although the constitutional prohibition on ex post facto laws does apply to the federal government as well as the states, the statute in question is not an ex post facto law because it did not constitute a retroactive change in a criminal or penal law (or a civil law with an overriding punitive effect). It merely attempted to permit the reinstatement of the investors' lawsuit.

A state department of education has created a fund of a specific amount to be distributed among the public and private elementary schools within the state to provide instructional programs in mathematics. The amount of funds available to a school will be based on the number of students attending the school and the number of schools that elect to receive funds. Concerned that the expenditure of funds will benefit parochial schools at the expense of public schools, parents of public-school children have filed suit against the state secretary of education in federal district court seeking an injunction to block the distribution of these funds to parochial schools as a violation of the First Amendment to the United States Constitution as made applicable to the state via the Fourteenth Amendment. How is the court likely to rule in this suit? A. For the parents, because direct state aid to religious institutions is prohibited by the Establishment Clause. B. For the parents, because, while aid to religious institutes of higher learning is permitted, any state aid to parochial elementary and secondary schools is prohibited by the Establishment Clause. C. Against the parents, because the parents lack standing to bring this action. D. Against the parents, because the funds will be distributed according to religiously neutral criteria and used to purchase secular materials.

D. Governmental financial assistance to religious institutions is permitted if the aid is secular in nature; used only for secular purposes; and, when the aid is distributed among secular and religious institutions, the distribution criteria are religiously neutral. Here, the state is distributing funds, which are secular in nature. The funds are to be use for the secular purpose of acquiring instructional materials in mathematics, and the funds are to be distributed on the basis of the number of students in a school and the number of schools that elect to receive the aid, which are religiously neutral criteria. Consequently, the court is likely to uphold this distribution of state funds to parochial elementary schools. Answer choice A is incorrect because, while direct financial aid to religious institutions was at one time forbidden, this is no longer the case. Such aid does not automatically violate the Establishment Clause, but is permitted if the above criteria are met. Answer choice B is incorrect because, while parochial elementary and secondary schools were at one time considered to be so pervasively sectarian that direct aid to them was not permitted, that is no longer the case. Answer choice C is incorrect because taxpayers can challenge specific expenditures as violating the Establishment Clause.

Three states entered into a compact regarding the rights of each state to use water from a river that flowed through each state. The compact, which was approved by Congress, did not specify an enforcement mechanism. One of the states, contending that the other two states were violating the compact, filed suit in Supreme Court to enforce the compact. Pursuant to the U.S. Constitution, does the Supreme Court have jurisdiction to hear this action? A. No, because Congress approved the compact, so the dispute must be resolved by Congress. B. No, because the Supreme Court's jurisdiction is confined to appellate jurisdiction. C. Yes, because Congress has provided that the Supreme Court has original jurisdiction over disputes between two or more states. D. Yes, because the Supreme Court has original jurisdiction over cases between two or more states.

D. Section 2 of Article III of the U.S. Constitution provides that the Supreme Court has original jurisdiction over all cases between two or more states. Note that Congress cannot expand or limit this jurisdiction, but it can grant concurrent original jurisdiction to lower federal courts. Answer choice A is incorrect because, although an interstate compact may need the consent of Congress, the adjudication of controversies that arise with regard to an interstate compact is the province of the Supreme Court. Answer choice B is incorrect because, while the overwhelming majority of cases heard by the Supreme Court are a consequence of its appellate jurisdiction, the Supreme Court does have limited original jurisdiction pursuant to the Constitution. Answer choice C is incorrect because, while Congress can grant concurrent original jurisdiction to other federal courts, it cannot expand or limit the Supreme Court's original jurisdiction.

AGlobal warming lobbyists were putting pressure on Congress to reduce the effects of global warming caused by personal vehicles. In response to these concerns, Congress passed legislation conditioning federal subsidies to oil producers on using cleaner extraction techniques for producing fuel, ultimately leading to lower emissions of carbon dioxide from personal vehicles. Which of the following constitutional provisions most strongly supports the enactment of this legislation? A. The Necessary and Proper Clause under Article I, Section 8 B. The Police Power under Article I, Section 8 C. The Privileges or Immunities Clause of the Fourteenth Amendment D. The Taxing and Spending Power under Article I, Section 8

D. The spending power has been interpreted very broadly. Congress has the power to spend for the "general welfare"—i.e., any public purpose—not just to pursue its other enumerated powers. Although there are areas in which Congress cannot directly regulate, it can use its spending power to accomplish such regulation indirectly by conditioning federal funding. Here, Congress conditioned federal subsidies to oil producers in order to indirectly regulate the production of cleaner fuels used by personal vehicles and thereby reduce carbon dioxide emissions. This was a proper use of the spending power for a public purpose. Answer choice A is incorrect. Congress is given the power to enact any legislation necessary and proper to execute any authority granted to any branch of the federal government. However, the Necessary and Proper Clause is not an independent source of power, but it permits Congress's otherwise designated authority to be exercised fully. Answer choice B is incorrect because Congress does not have a specific police power to legislate for the public welfare. Such "police power" is reserved for the states. Congress can, however, tax and spend for the general welfare. Answer choice C is incorrect because the issue here is not one of infringement by the states upon the privileges or immunities of national citizenship.

A public co-ed high school has adopted a requirement that boys who play any school-sponsored sport cannot have hair longer than four inches. The school does not impose a similar requirement on girls who play a school-sponsored sport. A male student in the school challenges this requirement in federal court on the grounds that it interferes with his right to wear his hair as he pleases.Which of the following is likely the best statement of the burden of persuasion for the action brought by the student? A. The school is required to establish that the school requirement is the least restrictive means to achieve a compelling interest of the school. B. The school is required to establish that the requirement is substantially related to an important interest of the school. C. The student is required to establish that the requirement is not substantially related to an important interest of the school. D. The student is required to establish that the school requirement is arbitrary or irrational.

D. The standard of review to which governmental action is subjected when challenged on substantive due process grounds depends on the right asserted by the plaintiff. If the plaintiff is asserting a fundamental right, the government must establish that its requirement is the least restrictive means to achieve a compelling governmental interest. If a fundamental right is not involved, the plaintiff must show that the restriction does not bear a rational relationship to a legitimate government interest. Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational. Here, the student's interest in being able to wear his hair as he chooses is merely a life style choice that does not involve a fundamental right. Consequently, the burden is on the student to show that the requirement is arbitrary or irrational. Answer choice A is incorrect. In addition to governmental conduct that violates a fundamental right, the strict scrutiny standard set out in this answer choice also applies to intentional government conduct that discriminates against a suspect class. Because the facts do not indicate that the student belongs to a suspect class and a fundamental right is not involved, strict scrutiny review of the school hair requirement is not appropriate. Answer choice B is incorrect. The intermediate scrutiny standard of review set out in this answer choice is appropriate for equal protection challenges when intentional government conduct discriminates against a quasi-suspect class. Although the student here could have pursued a constitutional challenge based on equal protection grounds (i.e., gender discrimination), he did not, and instead has brought a substantive due process claim based on the denial of a right to wear his hair as he wished. Consequently, this standard of review does not apply to his substantive due process challenge. Answer choice C is incorrect because the intermediate scrutiny standard of review does not apply to a substantive due process challenge. In addition, even if the action had been brought on equal protection grounds, the burden would be on the school, not the student.

A government organization funds the provision of toiletry kits to homeless shelters. The shelters then distribute the kits to the homeless to help them maintain proper hygiene, avoid infections, and prevent illnesses. The kits are given to shelters that operate through government grants, as well as to shelters that are funded and run by churches. A taxpayer has brought an action challenging the constitutionality of allocating government funds to provide toiletry kits to the shelters run by churches. Which of the following is the strongest argument against this challenge? A. Assisting the homeless to maintain proper hygiene, avoid infections, and prevent illnesses promotes the general welfare. B. The government has an important interest in providing its homeless citizens with proper hygiene because it can prevent the spread of infection and illness. C. The taxpayer lacks standing to challenge the constitutionality of this program. D. The program has a secular purpose and does not entangle government with religion.

D. Under the Establishment Clause, governmental financial assistance to religious institutions is permitted if the aid is secular in nature, used only for secular purposes, and, when the aid is distributed among secular and religious institutions, the distribution criteria is religiously neutral. Here, toiletry kits, which are secular in nature, are being provided in order to provide hygiene to homeless people, which is a secular purpose. The toiletry kits are distributed to shelters based on religiously neutral criteria. Therefore, the Establishment Clause has not been violated. Answer choice A is incorrect because it is too broad. Depending upon the facts, the provision of toiletry kits to homeless people by a church run shelter could be constitutionally objectionable. Even if the program improved the general welfare, it could be found unconstitutional if it also had the effect of advancing or inhibiting religion. Answer choice B is incorrect because merely serving an important interest is not sufficient to overcome a challenge based on the Establishment Clause. Answer choice C is incorrect. Usually, a taxpayer does not have standing to file a federal lawsuit simply because the taxpayer believes that the government has allocated funds in an improper way. However, a taxpayer has standing when the taxpayer challenges governmental expenditures as violating the Establishment Clause, as in this case.