Things to Remember for Con Law, Glannon G, Barbri Set 2, Barbri Quiz Set 1, Con Law Quiz 6, Con Law Chapter 3 Quiz, Con Law Chapter 4 Quiz, Con Law Quiz 5, Con Law Quiz 2, Con Law Quiz 1

what is the pardon power?

"he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

what is the DCC 'pike' balancing test?

1) whether the law burdens interstate commerce clearly exceed benefit.

what is the rational basis test?

A law is upheld if it is rationally related to a legitimate government purpose. The challenger of the law has the burden of proof to show either that there is no conceivable legitimate purpose or that the law is not rationally related to it

What is an executive agreement?

Agreement between the US and a foreign country that is negotiated by the president and when the president signs = effective.

which would be invalidated if challenged in fed court? a. Leg that amended the SC appellate juris rendering it unable to hear abortion cases. b) statute barring atheists from challenging the use "under God" in the pledge of allegiance in federal ct.

B.

Of the following which would be most likely to be found a violation of the Contract Clause?

B. A state law requiring mortgage holder to reduce the amount of indebtedness on mortgages whose collateral property has become worth less than the balance of the loan. - must be a substantial impairment. merely imposing additional procedural requirements without affecting ht underlying indebtedness will not likely run afoul of the Clauses protections.

Eager to jumpstart its flagging economy the state of Ames offers a tax credit with company with its PP of business in Ames. Which of the following statements about the Ames law if false?

B. the tax credit is constitutional because Ames if a participant in the market for new manufacturing facilities. - market participants cant offer tax breaks, deductions, or credits in their dealings with others.

Congress passes a law prohibiting the payment of non-salorey compensation. If challenged in federal court as a violation of the Contracts Clause, the federal law would :

Be upheld because it is federal law. The Contracts Clause is a restriction on States**

Federal agency stated all maple syrup bottles had to have labels stating ingredients. Wisconsin stated no labels can have ingredients.

Conflict of law, thus the state is deemed preempted.

what does City of Boerne v. Flores establish?

Congress made a "Religious Freedom Restoration Act" The fourteenth amendment does not authorize acts of Congress to override the US supreme courts interpretation of a constitutional right. "Congress has the power to enforce laws to prevent the violation of a constitutional right, but it does not have the power to define the substance of that constitutional right."

Who can congress allow appt power?

Congress may vest the right to appoint inferior officers in the President, the courts, or department

Exceptions to discriminate against out of staters:

Congressional Approval Market Participant

Full Faith and Credit Clause

Constitution's requirement that each state accept the public acts, records, and judicial proceedings of every other state

What does the P&I not apply to?

Corporations and Aliens.

Congress seeks to help states by withholding 10% of federal highway funds. Chief of Ames sues government. How would a judge rule?

Dismiss suit, because compliance is conditioned on the receipt of federal money.

what is a jurisdiction hook

Ex: crime for any person to sell, within 100 feet of any school... (here is the hook)- "any substance that had crossed or transported across interstate commerce. "

in order to save money, Ames city has decided to privatize its police force. It hires OMNISecurity to do all the policing in Ames City. When, in a case of mistaken identity, Peter is arrested and beaten by OMNISec. employees, he sues them for violating.... A judge would most likely rule?

For Peter, because Ames City has delegated an essential public function to OMNI Security,

What is a commander in chief?

Head of the nation's armed forces- operate and control troops in the field. Congress has no say in military operations.

Example of Field Preemption?

Immigration laws: Congress have evidenced a clear intent that federal law occupy the field.

The State of Ames 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 Ames law excludes. The strongest argument against the Ames law is that:

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.

Can the President make recess appointments?

May not make recess appts for intrasesion recesses that re less than 10 days.

Can one tax federal instrumentalities?

NO, absent congressional permission, federal instrumentalities are not subject to state or local taxation.

Is the fact that a private entity gets government money enough for state action?

No, according to Rendell-baker, it is not enough for state action.

A state statute was struck down by the supreme court of the state on the grounds that it was in conflict with the Supremacy Clause of the United States Constitution as well as the Equal Protection Clause of the state constitution. Does the United States Supreme Court have jurisdiction to hear an appeal of the state supreme court's decision?

No, because of the 'adequate and independent state grounds' theory. The Supreme Court probably would not review the state decision because of the "adequate and independent state ground" theory. The Supreme Court will hear a case from a state court only if the state court judgment turned on federal grounds. Here, the judgment is, in part, based on a violation of the Equal Protection Clause of the state constitution, which is an adequate and independent state ground on which the decision would rest even if the federal issue were resolved (assuming that the state court's disposition of the state constitutional issue did not depend on federal doctrines).

Is Congress telling the lower courts how they are to decide the case valid?

No, it is unconstitutional for legislation prescribes a rule of decision for federal courts in particular cases. would violate separation of powers.

Can Congress propose an Act that deprives the federal judiciary of power to 'say what the law is'?

No, seeking to deprive courts of the power to review this section is unconstitutional.

The State of Ames imposes a 5% sales tax on all goods purchased in the state. The federal government purchased a fleet of automobiles in Ames for use by its employees in Ames and in other states. Must the federal government pay the sales tax?

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.

Does an executive agreement need senate approval?

No.

Penn Central v. NY

Not a regulatory taking because there was still value.

Is requiring states to comply with federal law commandeering them?

Not if it is a valid federal law. Asking them to obey is not commandeering.

what the the Loretto v Teleprompter Test? (per se)

Permanent physical envasion test.

Exception to State Action

Public Functions Entanglement

When can Congress not regulate private behavior?

Section 5 of the 14th amendment.

To reduce deer overpopulation in state forests, state Blue adopted a statute allowing anyone with a valid deer hunting license from any state to hunt deer within state Blue. The act also imposed a $0.25 per pound tax on each deer killed within the state. Funds from the tax were earmarked to support state forest land. State Red is adjacent to state Blue and also has an overabundance of deer. To encourage hunting, state Red does not impose a tax on deer taken from its forests. A hunter who is a resident of state Red and who is licensed to hunt there earns his living by supplying wild game to several high-end restaurants in state Red. While legally hunting deer within state Red, the hunter inadvertently crossed the state line and killed a deer in state Blue. Upon hearing the hunter's shot, a state Blue game warden arrived at the scene, approximated the weight of the kill, and handed the hunter a tax bill based on the approximation. The bill provided a method for challenging the approximated weight of the deer, but the hunter refused to pay any tax on his kill. He instead filed suit in federal court to enjoin collection of the state Blue tax on constitutional grounds. Which of the following results is most likely?

State Blue will prevail because the tax is valid under the CC. state Blue will prevail because the tax is valid under the Commerce Clause. A tax is valid under the Commerce Clause if: (i) the tax does not discriminate against interstate commerce; (ii) there is a substantial nexus between the activity taxed and the taxing state; (iii) the tax is fairly apportioned; and (iv) the tax fairly relates to services or benefits provided by the state. The state of Blue tax is applicable equally to residents of Blue and nonresidents. Thus, there is no discrimination against interstate commerce. Because the taxed deer are taken from within the state, there is a substantial nexus between the activity taxed and the taxing state. There is fair apportionment if a tax is based on the extent of the taxable activity or property in the state. Here, the killing of a deer within state Blue obviously occurs entirely within the state. Thus, the state tax is fairly apportioned. Also, there is a fair relationship between the tax and any benefits provided by the taxing state, because the state is permitting those engaged in hunting to take deer from its forest lands, in return for a rather modest amount of $0.25 per pound. That revenue, in turn, is used to support state Blue forest land, which provides hunters with a place to hunt. Thus, the state tax meets all of the requirements for validity under the Commerce Clause

What is a market participant?

State may favor its own citizens in receiving benefits from government programs or in dealing with government owned business. Ex: Colleges can charge less for instate residents.

The State of Ames passed a law greatly limiting the number of hunting licenses nonresidents could purchase during any given season. The number of licenses available to Ames residents was unlimited. Thereafter, a court invalidated the Ames 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. Ames then re-enacted the law that was previously struck down. Which of the following statements is true?

The Ames 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 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

The Air Force constructed a test flight facility near an existing poultry farm. The noise and commotion from the base has seriously harmed egg production, and many of the chickens have succumbed to stress. The farmer sues the government, demanding compensation for the economic losses. The government responds by filing a motion to dismiss. The court should rule for:

The farmer, because the harm is a compensable taking. The facts here resemble those of United States v. Causby. The Court in that case termed the damage to the farm to be "constructive physical occupation."

What is entanglement?

The government encourages or facilities unconstitutional conduct.

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?

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.

just compensation (takings clause)

The measure of just compensation is in terms of the loss to the owner. -gain to taker is irrelevant.

During extensive hearings, a state legislature determined that double tractor-trailer rigs—trucks consisting of a tractor (the motorized portion) towing two large, connected trailers—caused the roadway to deteriorate faster than other freight vehicles and autos because of their weight. Traffic safety experts also produced evidence showing that double tractor-trailer vehicles were involved in more accidents than other freight vehicles, primarily due to "jackknifing," where the rear trailer loses traction and swerves violently, causing the entire vehicle to be upended. Consequently, the legislature passed a statute requiring the owners and users of double tractor-trailer vehicles to pay a user's fee, in addition to normal vehicle licenses, of 10 cents per mile traveled over state highways and an annual registration fee of $5,000. The owner of 30 tractors in a neighboring state that almost exclusively pull double trailer rigs through the state imposing the fees determined that about 30% of the total mileage of all of the owner's vehicles is accumulated in that state, and that there is no easy way to avoid traveling through that state to get to the delivery destinations in other states. The mileage fees and registration fees for 30 trucks in a year would be about 60% of the owner's gross annual income. The owner brought suit in federal district court seeking a judicial declaration that the fees imposed by the state statute are unconstitutional. At trial, attorneys for the state produced evidence of highway destruction and safety hazards from the double tractor-trailer rigs as found by legislative committee hearings. The owner proved the relevant facts about his operations and the cost the statute would impose. If the court finds the tax unconstitutional, what is the most likely reason?

The state's interests in preserving its highways and in promoting traffic safety are outweighed by the interference with interstate transportation of goods. If the court should find the statute unconstitutional, it will be because the state's safety concerns are outweighed by the burden on interstate commerce. Where a state enacts a law that does not discriminate against interstate commerce, it may still be invalid if the benefits from the law are outweighed by the burdens the law places on interstate commerce. The determination is made on a case-by-case basis, depending on the facts. Here, there is no discrimination against interstate commerce, and the state has shown that tandem trailer trucks are more dangerous than other vehicles and they cause more road damage. However, the owner has shown that the state law makes it expensive to operate his interstate trucks in that state. The court could easily find that the added expense on interstate carriers is not outweighed by the benefits to the state. (Note that the Supreme Court has twice addressed this issue in similar cases [Raymond Motor Transportation, Inc. v. Rice (1978); Kassel v. Consolidated Freightways Corp. (1981)] with a similar result.)

The owners of a historic landmark in Ames City wished to make substantial alterations to the property, which had to be approved by the city's historic landmark design committee. The committee denied the owners their desired permit. The owners sued, claiming that the city's denial was a compensable taking. Which of the following statements is true?

There is a compensable taking only if owners could prove the regulation interfered with investment-backed expectations and had a large economic impact on them. The owners are alleging a regulatory taking, since the city has not moved to exercise eminent domain over the property. The question in regulatory takings cases is whether the "per se" approach or Penn Central balancing applies. The answer to that question turns on whether the entire economic value of the property has been destroyed or not. If it has not, then courts will balance factors, like the size of the financial harm and how much the owners' investment-backed expectations have been frustrated. There are no facts suggesting that the value of the owners' investment is now zero as a result of the denial of the permit, so balancing would be appropriate.

What is the categorical Test/ Lucas v, South Carolina test?

Total deprivation of use = a taking.

Montana passed a law requiring all person who offer themselves as hunting guides for hire to be licensed by state. An out of stater hunter who used to guide in Montana sues, claiming that Montana law violates the P&I clause -

Unconditional because the law deprives out-of-state guides of ability to pursue employment on terms equal with Montana residents without substantial reason for discrimination.

Does House of Reps have discretion to expel?

Yes 2:3 vote. The constitution makes each house the judge of the qualifications of its members.

Can felons and the mentally ill, second amendment rights may be limited?

Yes,

The Federal Communications Commission ("FCC") issued a lengthy set of regulations regarding personal radar detectors. The regulations deal with the safety of such detectors and the frequencies on which they may operate, so as not to interfere with FCC-licensed radio and television stations or with radar used by commercial airliners and private aircraft. May a state constitutionally ban the use of radar detectors on its roads?

Yes, because the state has a legitimate interest in regulating the use of radar detectors in order to promote safe driving. The state may ban the radar detectors. States may regulate local aspects of interstate commerce as long as the local regulation does not conflict with, or is not preempted by, federal regulation and the regulation meets the following tests: (i) the regulation does not discriminate against out-of-state competition in order to benefit local economic interests, and (ii) the incidental burden on interstate commerce does not outweigh the local benefits of the regulation. In this case, the federal regulations do not conflict with the state ban and are not so comprehensive as to preempt nonconflicting state regulation. With regard to the two-part test, the first standard is met because the regulation is not discriminatory against out-of-state products (because it bans all radar detectors regardless of origin). The second part is a balancing test, in which the court will consider whether the regulation promotes legitimate state interests and whether less restrictive alternatives are available. Here, the ban clearly promotes the state's legitimate interest in highway safety by making it harder for speeding motorists to evade detection. Anything less than a ban would not be effective in preventing the use of the detectors, and their use makes radar, the state's best means of preventing speeding, much less effective. On balance, the ban's local safety benefits outweigh its burden on interstate commerce and transportation.

Can congress affect pending cases?

Yes, congress can amend legal standards in ways that affect outcome.

Can Congress prohibit bribery?

Yes, if federal funds are part of the money pool, Congress has the power to prohibit bribery of officials with access to that money. - do this through the necessary and proper clause.

Does the president enjoy immunity from lawsuits for official actions taken while in office?

Yes, in Nixon v. Fitzgerald the SC held that a president enjoys a broad grant of immunity for acts taken while in office.

what is Express Preemption

a federal law or regulation that contains language explicitly displacing or superseding any contrary state or local laws

substantive due process

has an adequate reason for taking away a person's life, liberty or property?

what is field law

if Congress evidences a clear intent to preempt state and local laws, then state laws are deemed preempted.

When can Congress tax and spend?

if it is directed toward the common defense or the general welfare.

What is objective preemption?

if state or local impede the achievements of a federal objective, then the state law is deemed preempted.

When is the presidents executive privilege overruled?

if there is a strong constitutional interest in the fair administration of justice.

What is implied/conflict preemption

if you cant comply with both state and federal law- federal law wins.

What does the second amendment guarantee?

individual right to possess for self defense (due process clause).

Mootness

live controversy throughout all stages.

When the president appoints officers of the US, who needs to approve?

the Senate must approve the nomination.

Hornes v. dept of ag

were requested to turn over crops. - the was a per se taking. - has to pay compensation.

Are states entitled to special solitude in a standing analysis?

yes.

When can a state discriminate? (Maine v. Taylor)

(prohibited importation of live baitfish) if it serves a legitimate local purpose and the purpose cannot be achieved with less burdensome restriction.

South-Central Timber Development v. Wunnicke

- Commerce clause long recognized as limiting power of states to pass laws "imposing substantial burdens on such [interstate and foreign] commerce." alaska was was imposing downstream regulations by requiring those to purchase timber from state and then process it as well. - This power is granted to Congress.

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?

- The state court decision rested on adequate and independent state grounds. Rationale: 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.

Three part test for Contract Clause: (private individual between private individual) Energy v. Kansas power n light

1) does legislation substantially impair a partys right to contract? 2) if so, does serve an important and legitimate public interest? 3) is it reasonable and narrowly tailored means of promoting that interest?

What are the three types of taking?

1) eminent domain- taking your property (ex. for military base) 2) regulatory - no viable use 3) possessory- physically occupies

In regard to the Spending Power, what are the factors beyond the threshold requirement that the expenditure be for the general welfare? (South Dakota v. Dole)

1) is it for the general welfare? 2) condition must be stated unambiguously 3) are they related to federal interest? 4) is it coercive?

Penn Central Test (regulatory)

1) is the economic impact of the regulation on the claimant; 2) extent to which the regulation has interfered with investment-backed expectations (what is landowner expect when purchasing property) 3) the character of the government action

United States Trust v. New Jersey (Contracts) test for state contracts. (Private individuals with the state)

1) is there a substantial impairment of a contractual relationship 2) if so, does it serve a significant legitimate purpose? 3) if so, it is reasonable and necessary to serve important government purpose? (heightened scrutiny)

Three part question for Takings Clause?

1. Is there a taking? 2. It is for public use? 3. Is there just compensation?

State Taxation of Interstate Commerce

1. States may not use their tax systems to help in-state businesses 2. A state may only tax activities if there is a substantial nexus to the state 3. State taxation of interstate businesses must be fairly apportioned

How can Congress do this?

13th amendment - people cannot own slaves. Commerce Clause- restaurants must serve African Americans.

In which of the following cases does Congress have the power to restrict the jurisdiction of the United States Supreme Court?

A case involving maritime jurisdiction. Congress has the power to limit the Supreme Court's jurisdiction in maritime cases. The Supreme Court has original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. Congress may neither restrict nor enlarge the Supreme Court's original jurisdiction.

what is a regulatory taking?

A regulation that denies the owner ALL reasonable economically viable use of his land.

In effort to combat drunk driving, State of Ames passed law requiring all new cars sold in the state....Which of the following would be most helpful to CarCo in its suit?

A. congress rejected a proposal in recently-passed automobile safety legislation to require interlock devices in new cars. - law was impliedly preempted.

President Adams promises Marbury 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. Adams decides to appoint Marshall instead to become Chief Justice. Marbury sues in federal court claiming that the President promised him the next vacancy. A reviewing court should find for:

Adams, 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 Adams might be a cad for welching on his promise to Marbury, 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 Marbury relied on Adams's promise or not has no bearing on whether the President's failure to appoint Marbury 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.

Title 18, § 875(a) makes it a crime punishable by death to kidnap and murder a Supreme Court Justice. Danny was convicted under this statute for the kidnapping and murder of a Supreme Court Justice that Danny had labeled a ''traitor" for his opinions. Danny appeals his conviction, arguing that the statute under which he was convicted was unconstitutional. On appeal, a reviewing court should:

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.

As an aide to a member of the Congress of the United States, you are expected to provide an analysis of the constitutionality of proposed legislation that your employer is called to vote on. A bill has been proposed that would create a mandatory price schedule for every motor vehicle sold in the United States. Which of the following should you tell your employer is the strongest constitutional basis for the proposed legislation?

All Motor vehicle transactions in the US, taken as a whole, have significant impact on interstate commerce. As part of its power to regulate interstate commerce, Congress may regulate any activity, local or interstate, which either in itself or in combination with other activities has a substantial economic effect upon, or effect on movement in, interstate commerce. Because all motor vehicle transactions in the United States, in the aggregate, have a significant impact upon interstate commerce (as (A) states), Congress is constitutionally empowered to regulate such transactions by, e.g., enacting a mandatory price schedule. (

Which of the following is a reason given for adopting originalism as a preferred method of constitutional interpretation?

All of the above are cited reasons for using originalism.: - Originalism limits judges' discretion. - Originalism ensures that decisions are based on something other than judges' notions of sound policy. - Originalism minimizes the "countermajoritarian difficulty." 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?

All of the above. - The Article III Arising Under Clause. -The Article III Vesting Clause. -The Article VI Oath Clause. 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).

The State of Ames passes a law mandating the use of Eludium Q36 in the manufacture of widgets. After evidence mounts that Eludium Q36 is carcinogenic, Congress bans the use of Eludium Q36 in widget manufacture. The State of Ames does not repeal its law. A widget manufacturing corporation based in Ames is fined after inspection reveals that it eliminated Eludium Q36 from its widget manufacturing process. Which of the following is the manufacturer's best argument?

Ames 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.

Ilana filed a civil action in federal court against Joe seeking monetary damages for defamation. During jury selection, Joe'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. Ilana 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:

Applies to the attorney's actions, because of the court's involvement in upholding the peremptory challenges. 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.

Pike v. Bruce Church (DCC)

Arizona wanted to make sure all produce was labeled to achieve legitimate state interest or preventing deceptive packaging. - the packaging excessiveness outweighed preventing dissection.

What article contains the Supremacy Clause?

Article IV- Consti. laws & treaties are supreme law of land.

Article IV protects who? 14 amendment protects who?

Article IV- citizens 14th Amend.- national citizenship.

It was common practice in a particular state for a security interest in land to be structured as a deed absolute, which gave a lender absolute title to the borrower's property as security for the loan. The lender would reconvey only on complete payment of the loan by the debtor party, and could dispose of the land immediately without a foreclosure sale on default. A new governor of the state whose campaign platform was built around abolishing the deed absolute mortgage encouraged the legislature to enact a bill that immediately outlawed use of the deed absolute, declaring that all such deeds would be considered mere liens against the secured property. The law applied not only to loans made in the future, but also to the thousands of such loans in existence at the time the legislation was passed. As soon as the governor signed the legislation, lending institutions and individuals who had loaned money secured through deeds absolute challenged the constitutionality of the new law. What is the strongest argument that the challengers can make?

As applied to loans outstanding at the time the bill was enacted, the law impairs the contract rights of the lenders and such rights are guaranteed by the Contracts Clause of the federal Constitution. The best argument against the statute is that it violates the Contracts Clause. The Contracts Clause prohibits states from retroactively and substantially impairing contract rights unless the governmental act serves an important and legitimate government interest and is a reasonable and narrowly tailored means of promoting that interest. Here, the legislation by its terms affects existing contracts. It is arguable that the effect is a substantial impairment, because deeds absolute have been turned into mortgages by the statute. While protecting debtors may be a legitimate government interest, it could be argued that the statute is not narrowly tailored to that interest. It is doubtful that the plaintiffs' attorneys would win on this argument, but it is their best approach.

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. DrugCo.'s proposed merger with a foreign company was found to be primarily to reduce DrugCo.'s tax bill and taxed accordingly. DrugCo. sues, claiming that the appointment of the board was unconstitutional because they were not appointed by the President and confirmed by the Senate. Are the appointment and removal provisions for the board constitutional?

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.

Congress has recently enacted legislation that makes it a federal crime for any person to interfere with any right conferred by the Equal Protection Clause of the Fourteenth Amendment. The statute may be applied constitutionally in which of the following situations?

By threats of violence, a person coerces the coach of a public high school basketball team to exclude white athletes from the team solely because of their race. The facts of (C) are the only ones in which the person has compelled a state official to deny equal protection of the law to some person. The Fourteenth Amendment prevents states from depriving any person of life, liberty, or property without due process of law and equal protection of the law. Because the Equal Protection Clause protects against state action only, the federal statute at issue prohibits only behavior that causes or induces a state official, agency, or instrumentality to deny the equal protection of the law to some person.

outraged by executives pay by companies- created a executive compensation reform. - required to report to secretary, and three members chosen from House of reps.

C. Sustain the executives challenge because members of congress are involved in the selection of an executive branch.

Rule under Dolan- government's imposition of a land use condition requiring the dedication of private land to public use must be supported by:

City must demonstrate a legitimate governmental interest there must be a nexus between the condition and the interest there must be some individualized determination by the city that the dedication of the land to the school is roughly proportional to the impact of the neighborhood.

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:

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.

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?

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.

After Jane was injured in a workplace accident, she applied for federal disability benefits and was examined by Dr. Smith, a doctor employed full-time by the Social Security Administration to make recommendations to the agency about benefit eligibility. After the agency denied Jane's application for benefits based on Dr. Smith's initial examination, she filed numerous administrative appeals with the agency and lost. Later, after Jane discovered that a staff member at the Social Security Administration appointed Dr. Smith to her position, Jane filed a federal lawsuit alleging that Dr. Smith's appointment violated the Article II Appointments Clause. A reviewing court is most likely to rule that Dr. Smith's appointment is:

Constitutional under the Appointments Clause, because Dr. Smith does not exercise significant authority. The correct answer is C, because Dr. Smith 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 Dr. Smith's decisions are subject to multiple levels of appeal and because she is not the ultimate decision-maker, a reviewing court would likely find Dr. Smith to be an "employee" because she lacks "significant authority," and therefore the Appointments Clause does not impose any limits on her appointment.

In 2012, Congress enacted the Safe Toys Act, 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 Act against GB Play, a British-owned toy company, after several children were injured playing with toys made by GB Play. In response, GB Play filed a motion to dismiss, asserting the Act's affirmative defense for foreign companies. While GB Play's motion to dismiss was pending before a federal judge, Congress amended the Safe Toys Act to remove the affirmative defense for British corporations. At the time the Act was amended, the GB Play case was the only Safe Toys Act action pending in federal court that involved a British company. GB Play 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:

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 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. ABC Foods, 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:

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 AUMF'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.

The year is 1850. New Hampshire adopts a state law declaring Catholicism to be its official state religion. Protestant residents of the state 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:

Constitutional, because the First Amendment does not impose any restrictions on New Hampshire. The correct answer is A. The key point here is that the case is brought in 1850, beforethe 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 New Hampshire's law constitutional under the First Amendment, while a judge deciding the case today would strike down the law.

After repeated complaints of unscrupulous business practices, Happytown passes a law prohibiting rental real estate brokers from charging fees for their services. Almost immediately after the law was passed, all the rental real estate brokers in Happytown were put out of business since they were unable to make any money. Linda, a rental real estate broker based in Happytown, challenges the statute as a violation of the Fourteenth Amendment's Due Process Clause. A reviewing court is most likely to hold that the law is:

Constitutional, because the law is rationally related to a legitimate state interest. The correct answer is C. In the post-Lochnerera, most economic liberties—including the right to practice a profession or contract for services—are subject to the highly deferential rational basis scrutiny standard. A is incorrect because rational basis scrutiny tolerates a high degree of overinclusion (and underinclusion) in the relationship between the state's purpose and the means it uses to achieve that purpose.

In a recent omnibus appropriations bill, Congress allocated a $5 million grant to the state of Maine to build a new Museum of Lobsters located somewhere along the Maine coast. After several media reports confirmed that the grant was included in the federal budget in order to encourage Maine'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:

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.

A federal district court judge was accused of misconduct in office and was impeached by the House of Representatives. At trial in the United States Senate, the judge was convicted and removed from office. Nevertheless, the President directed the Attorney General to institute criminal proceedings against the judge. After presentation to a federal grand jury, an indictment was issued against the judge and signed by the Attorney General. At the opening of his trial, the judge moved to have the indictment dismissed. How is the trial judge most likely to rule?

Deny the dismissal, because the judge has not been previously tried in a criminal proceeding. The trial judge will most likely deny the motion to dismiss the indictment. The Fifth Amendment right to be free of double jeopardy for the same offense applies to subsequent criminal actions, but not to civil actions or impeachment proceedings, which are distinct from criminal proceedings. Article I, Section 3 of the Constitution specifically states that a conviction by impeachment does not prevent the party convicted from being subject to indictment, trial, judgment, and punishment according to the law.

Hawaii 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:

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.

LawOrg, 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, LawOrg asked the court to issue a subpoena for written notes taken by the President during a meeting with Chinese officials about a new trade agreement. The President responded by asserting executive privilege. A reviewing court is most likely to:

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.

Congress passes a law requiring individuals to purchase an electric car to reduce greenhouse gas emissions or pay a fine based on the amount of pollution one's vehicle emits. Only those who currently own cars are subject to her requirement. Able, who doesn't drive, and commutes to work by bus, challenges the law in federal district court as a violation of COngress's enumerated powers. A reviewing court would likely:

Dismiss Abe's suit because he has suffered no harm. the action wouldn't lack ripeness because Congress has already passed the law*.

A pregnant woman wished to obtain an abortion, but she was poor and could not afford one. Her home state did not provide financial assistance for abortions, but a neighboring state did for women who had been living within the state for at least three months prior to the procedure. The woman went to see a doctor in the neighboring state. He told her of the residency requirement. He also told the woman that he thought the residency requirement was unconstitutional and suggested that the woman bring an action in federal court challenging the residency requirement. She complied, bringing an action in forma pauperis, naming the doctor as the only defendant. The doctor responded that he believed that the requirement was unconstitutional and would like to be able to perform the abortion for the woman. How should the court proceed?

Dismiss the action because there is no case or controversy. The federal court should dismiss the action because there is no case or controversy. The federal courts will not issue advisory opinions and so will not hear collusive actions. The fear is that if interested parties are not on both sides of an issue, the court will not have an opportunity to fairly address all of the sides to each issue. Here, there is no interested party opposing the pregnant woman, and so the federal court should dismiss.

Despite being videotaped in public punching his wife, Frank, 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.") Frank 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:

Dismiss the case, because the text of the Constitution commits to each House alone the discretion to expel members with a two-thirds vote. The best answer is C. 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, Frank'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.

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:

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.

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:

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.

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:

Dismiss the suit, because the case is non-justiciable. The correct answer is B. 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.

Montana 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. Jane's Bar, a licensed private club in Montana, hosts a popular "Filipino Heritage Night" on Monday nights where persons of Filipino descent get in free but everyone else is charged a $10 cover. Mary, a non-Filipino patron at Jane's, 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:

Does not violate the Constitution, because there is no viable constitutional claim. Jane's 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 Jane's 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.

member of the board may be removed only for cause, and only by the chairman of the federal reserve board, who himself can be removed for cause by the president. A reviewing court should?

Find for the President because the combination of the for cause provisions violates the Constitution.

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:

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."

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:

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.

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:

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).

After the President orders American troops into combat in Central America without a formal declaration of war from Congress, Erika, 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:

Grant the motion to dismiss, because Erika's case is non-justiciable. The correct answer is A. The sole basis for Erika'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 Erika's case non-justiciable. In addition, even if Erika 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 Erika's injury is a generalized grievance, and she therefore lacks a constitutionally cognizable injury.

James is a New York resident who was subject to a police search while he was on vacation in Nevada that he believes was motivated by racial profiling. Subsequently, James filed a suit in federal court seeking an injunction forbidding the Nevada state police from engaging in racial profiling at any point in the future. During discovery, James acknowledged that he had only been to Nevada once and did not have plans to return. The State then filed a summary judgment motion seeking to have the case dismissed. A reviewing court is most likely to:

Grant the motion, because James' injury is insufficient to establish Article III standing. The correct answer is A because in order to receive injunctive relief, James is 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, James has no plans to return to Nevada, 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 James 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.

The town of Dudleyville has decided to contract with Educorp, 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 Educorp 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 Educorp. After the school adopts a policy requiring teachers to swear a loyalty oath to the United States government, Sam, a teacher at the school, files a suit challenging the law under the First Amendment. After the suit is filed, Dudleyville files a motion to dismiss based on the lack of state action. A reviewing court is most likely to:

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 man is subpoenaed to appear before the House of Representatives Armed Services Committee and answer certain questions. When he appears, he refuses to answer and is cited for contempt of Congress. Which of the following is the man's best defense to the charge of contempt of Congress?

He demonstrated that the questions asked him did not relate to any matter on which Congress could legislate. The man's best defense is to show that the questions did not relate to a matter on which Congress could legislate. The power to investigate to secure information as a basis for potential legislation is very broad, but the investigation must be for purposes within the scope of Congress's power.

After the U.S. Department of Transportation issued a new regulation allowing automakers to opt out of federal airbag requirements for certain vehicle models, the state of Idaho filed suit in federal court seeking to enjoin the regulation as a violation of the federal Administrative Procedure Act. Idaho'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 Idaho lacks Article III standing. A reviewing court is most likely to:

Hear the case, because Idaho has Article III standing. The correct answer is C. A is incorrect because Massachusetts v. EPA, the Court held that states like Idaho 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 Idaho'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 Idaho is asserting standing based on direct harm to its own state treasury, not based on injuries to third parties or Idaho residents.

Delighted with the success of the Oneida Herkimer solid waste, the county decides to create a number of county-owned hamburger stands called "..". To ensure their success, the county requires that all hamburgers be purchased at the stand. No other hamburger restaurants are permitted. what is strongest argument?

Herkimer County is not engaged in a traditional governmental function.

What is an example of a factually neutral law?

Hunt v. Washington Apple: The North Carolina statute is invalid under the Pike discrimination analysis because it has a practical effect of discriminating against Washington growers. By imposing a new labeling system for out-of-state apple growers that was already used by North Carolina growers, the state is requiring out-of-state growers to spend money to comply with the new labeling regulations.

The State of Ames 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 an Ames state park ranger, however, one must be a resident of the State of Ames. A recent applicant was rejected for an open ranger position because he was a resident of the nearby State of Barr. He sued in federal court, claiming that the Ames law is unconstitutional. A reviewing judge should:

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 Ames 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.

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:

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.

The State of Ames has a freedom of information act that permits citizens of Ames to file requests for particular types of information that the state must then provide. A citizen of Barr, a neighboring state, files a FOIA request and is denied because she is not a citizen of Ames. 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:

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.

Shelly v. Kraemer

Judicial enforcement= state action. Here, the court enforced covenants that racially discriminated. the judicial enforcement was state action. A 1948 Supreme Court decision that outlawed restrictive covenants on the occupancy of housing developments by African Americans, Asian Americans, and other minorities. Because the Court decision did not actually prohibit racial discrimination in housing, unfair practices against minority groups continued until passage of the Fair Housing Act in 1968.

Congress has appropriated money for the award of 25 presidential scholarships chosen by. the president and an advisory board. Upon reading that one of the recipients intends to attend a sectarian college and study to be a missionary, Tom taxpayer sues, claiming that the expenditure of federal funds violates the Establishment Clause. Does taxpayer have standing to bring the suit?

NO, because the appropriation is to the president to award the money at his discretion. There is a distinction between money spent by congress itself and that which it delegated to the president to spend at his discretion.

Are appointments by the president reviewable by court?

No!

Can the President substitute his policy judgment for that of congress?

No,

City ordinances allow bars and taverns to serve liquor. Billys bar is notified that the city has cited six times in a single month. City laws make provision for contesting the revocation. Has the city acted constitutionally?

No, b/c it did not afford him pre- or post deprivation hearing on the revocation.

Congress authorizes fed gov to exercise eminent domain to acquire property for new post office. Filburn claims that the statute is unconstitona. Points out that nothing in article 1 gives Congress power of eminent domain. Will farmer filbert prevail?

No, because eminent domain would be helpful to the government in exercising its constitutional power to establish pose offices, give in article 1 section 8.

A man from a foreign country obtained a doctorate in political science from a state university and applied to teach there. The man was denied employment at the university under a state law requiring all teachers within the state to be United States citizens. Is the state's citizenship requirement constitutional as it applies to the man?

No, because the citizenship requirement is not necessary to achieve a compelling state interest. A state generally may not discriminate against aliens absent a compelling state interest, and no compelling interest is served by prohibiting aliens from teaching at a state university.

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?

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."

A foreign student who had entered the United States on a student visa four years ago was notified by federal immigration authorities that he was subject to being deported because his visa had expired. Federal law provided that an alien who is subject to being deported has the right to appear before an administrative officer appointed by the Attorney General's office for a hearing on whether he should be deported. This officer, appointed by the executive branch of the government, has the right under law to make a final order concerning whether the alien should be deported. After a hearing, the administrative officer entered an order allowing the student to remain in the United States as a permanent resident. However, a congressional rule permitted the House of Representatives, by resolution, to deport "undesirable aliens." After the administrative judge entered his order, the House passed a resolution that the student should be deported. The student petitioned the federal court to declare the legislative resolution invalid. Should the court find the resolution to be valid?

No, because the federal law removed congressional power with regard to aliens in this circumstance, and the resolution of the House violates the separation of powers doctrine. The court should find the resolution invalid. While Congress has broad power to delegate, the separation of powers doctrine forbids Congress from trying to control the exercise of the power delegated in various ways, such as by overturning an executive agency action without bicameralism (i.e., passage by both houses of Congress). By enacting the federal law allowing the administrative law judge to enter a final order with regard to aliens, Congress has given up any control it may have had previously in these situations. The resolution by the House here is an unconstitutional legislative veto that violates the separation of powers doctrine.

A state legislature adopted a statute requiring that state school districts be funded equally on a per capita basis, because the previous method of funding school districts based on the amount of taxes paid by residents of the district resulted in schools in the state's wealthiest district receiving twice as much funding per pupil as did schools located in poorer districts. A resident of the wealthy district whose children attend public schools brought an action in state court to have the new statute declared invalid. He established at trial that the disparities in the previous funding system were not based in any way on racial or ethnic discrimination. Nevertheless, when the case reached the state supreme court, it ruled that, based on a provision in the state constitution similar to the Fourteenth Amendment Equal Protection Clause of the United States Constitution, all school districts in the state must be funded equally on a per capita basis. Subsequent to this decision, a taxpayer in a neighboring state sued in federal court, demanding equal per capita funding in his state's school districts. The taxpayer's case eventually reached the United States Supreme Court, which ruled that the Fourteenth Amendment does not compel equal funding, provided there is no probable racial discrimination in the funding. After that decision, the resident of the wealthy district who had lost his state court case filed a petition for a writ of certiorari to have the decision by his state supreme court overturned. Is the resident likely to prevail?

No, because the state decision turned on state law grounds. The resident will not prevail because the state decision was based on state law grounds. The Supreme Court will hear a case from a state court only if it turned on federal grounds. If it finds adequate and independent state grounds for the decision, it will refuse jurisdiction. Here, the facts state that the state decision was based on a provision of the state constitution. The fact that the state provision is similar to the federal Equal Protection Clause is irrelevant to determining whether the decision here was based on state law, since the state court did not base its decision on interpretation of the federal provision, but rather interpreted the state provision. Therefore, the Supreme Court will refuse jurisdiction, and the resident will not prevail.

Congress enacted a statute appropriating money to the states on condition that the states use the money to support "public performances of classical ballet open to the public." The statute provided that the money was not to be used to support any other type of dance, and that tickets to any performance paid for with these funds were to be distributed to the public on a first come, first served basis. A state that accepted a grant of $500,000 under the federal statute gave half of the grant to a state-sponsored ballet company. The company had been started 20 years earlier as part of a state effort to bring culture to poor, inner-city areas. By state law enacted when the company was formed, no less than 35% of the tickets to each performance of the ballet company must be distributed to the inner-city school systems to be given to minority school children. Is the state's method of distributing tickets to the state ballet company's performances constitutional?

No, because the state distribution system violates the supremacy clause. The state ticket distribution system is unconstitutional because of the Supremacy Clause. A valid act of Congress supersedes any state or local action that conflicts with it. The act here is valid because Congress has the power to spend for the general welfare, and in so doing may place conditions on grants as it sees fit. The state law directly conflicts with the federal law because the federal law requires that tickets be distributed on a first come, first served basis, and the state law requires that 35% of the tickets be given to minority school children.

A state law provides that all persons who have been residents of the state for more than three years shall be entitled to free tuition at the state's main university. It further provides that persons who have resided in the state for three years or less shall pay the nonresident tuition rate, which is significantly higher. A student at the state's university who had been a state resident for less than three years filed a class action in federal court on behalf of himself and other similarly situated university students, seeking a declaration that the state statute is unconstitutional. When the case came to trial, the student had been a resident of the state for more than three years and was no longer required to pay tuition. By that time, a number of amicus curiae briefs had been filed in the case, some supporting and some opposing the student's position. Nevertheless, the state moved to dismiss the case as moot. Should the state's motion to dismiss be granted?

No, because there is a live controversy. a class action is not moot, and the class representative may continue to pursue it—even if the representative's own controversy has become moot—because the claims of others in the class are still viable. Here, the student filed his suit as a class action for university students with less than three years' residency; undoubtedly some of those students will still have a real controversy at this time. Thus, the case is not moot.

Is impeachment a justiciable political question?

No.

Can Congress abrogate start sovereign immunity under the commerce clause?

No. The only time is the 14th amendment- section 5 when using enforcement power.

if government is acting to prevent a nuisance, is it a taking?

No. Ex: the Miller v. Schoene case: - tree had disease- took tree- stated not a taking because the tree was a nuisance.

Can states tax instrumentalities of the federal government?

Not unless congress consents. May lay indirect taxes.

State of Ames has banned all employment of children under 17. Employment is defined as any job or service or undertaking for which the child receives compensation in cash. Which of the following parties would have the greatest chance of successfully challenging the statute?

Parents of 15 year old who require their son to do housework and yard work in exchange for a weekly cash allowance. -fundamental right to raise children.

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?

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 areincorrect. 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.

what is presentment?

President must sign.

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?

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.

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?

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 D are incorrect.

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:

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. The State of Ames 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 Ames 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 Ames government contracts, sues, claiming that the Ames law is invalid. If a reviewing court invalidates the Ames law, it would likely be because:

The Ames 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; Ames's regime, on the other hand, thwarts those goals, at least for businesses operating in the country that make contracts with Ames. The facts don't indicate states are expressly preempted from having a sanctions regime

State Green passed a statute requiring all commercial trucks passing through the state to use Type A tires, even though all other states permit the use of either Type A or Type B tires on commercial vehicles. The United States Supreme Court struck down the state Green statute and stated in its opinion that Type A and Type B tires are equally safe. Subsequent to the Supreme Court decision, the legislature of state Yellow enacted a statute requiring the use of Type B tires by commercial vehicles and banning the use of Type A tires by commercial vehicles. The statute states that the reason for the prohibition is that Type A tires are dangerous. Which of the following would be the basis for the best argument for striking down the state Yellow statute as unconstitutional?

The Commerce Clause. The best argument for striking down the statute as unconstitutional is the Commerce Clause. Under the Commerce Clause, states may regulate local aspects of interstate commerce as long as the regulation does not discriminate against interstate commerce or unduly burden interstate commerce. The statute here does not discriminate against interstate commerce because it treats all trucks alike. To determine whether the statute unduly burdens interstate commerce, the court will balance the incidental burden on interstate commerce from the statute against the benefits produced by the legislation. Here, the burden on commerce is great, because the statute will force everyone who wants to travel through state Yellow to have Type B tires. The Supreme Court, in its opinion on the benefit produced by the statute from the previous case, found Type A tires and Type B tires equally safe. Thus, the statute provides little, if any, benefit. Because the burden on interstate commerce outweighs the benefits of the statute, the statute will be struck down.

A city council and park board announced joint plans to tear down some old buildings and erect a park. Before the contracts were made, in order to garner the greatest political benefit from such projects, the city council adopted an ordinance requiring that 35% of the work force of contractors working on city-funded projects be residents of the city. One of the contractors working on the park project employed several people from the city, but he and most of his employees came from a town in a neighboring state that was a few miles west of the city. When the city projects inspector discovered that the contractor did not employ the required 35%, he told the contractor that if he did not hire a sufficient number of city workers within 20 days the contractor would forfeit the opportunity to work on the project. The contractor immediately filed an action in federal court seeking to have the employment requirement declared unconstitutional. Of which party should the court should rule in favor?

The Contractor, because the requirement interferes with his rights under the P&I clause of Article IV. The court should rule in favor of the contractor because the pursuit of a livelihood is a right protected by the Privileges and Immunities Clause, and the requirement here substantially interferes with that right. The Privileges and Immunities Clause of Article IV prohibits states and municipalities from discriminating against residents of other states. Not all discrimination is prohibited—only that which substantially interferes with important commercial activities or civil liberties. The Supreme Court has held that the right to pursue a livelihood is a right protected by the Privileges and Immunities Clause, and also has held that a requirement that private contractors on city projects employ a certain percentage of city residents substantially interferes with the right. [See United Building & Construction Trades Council v. Mayor of Camden (1984)]

Norwood v. Harrison- state action.

The Court held loaning state-purchased textbooks to students in discriminatory private schools constitutes state action via the 14th amendment because by supplying textbooks, the state was directly supporting the private school discrimination.

Does the president need Senates approval to remove?

The Court held that the president had the sole power to remove executive officers.

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. CoalCo., 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:

The Department, because the act contains an intelligible principle that limits the Department's discretion. The Department, because the act contains an intelligible principle that limits the Department's discretion.

The United States was involved in a dispute with a small island nation over the ownership of an archipelago. On discovering that the archipelago was rich in oil, the President announced that he would appoint an ambassador to negotiate a treaty with the island nation to jointly exploit the oil reserve. A majority of Senators believed that the island clearly belonged to the United States and did not want to negotiate with the island nation. They passed a resolution requiring the President to include a Senator in his diplomatic mission to ensure that the Senate's view was presented in any negotiation with the island nation. What is the strongest constitutional ground for the President's refusal to do so?

The President has the exclusive power to select diplomatic representatives of the US. The President's strongest argument is that the power to select ambassadors is vested by the Constitution in the President, and the Senate's only power in this respect is to advise and give (or withhold) its consent. The Senate is not given the power to force ambassadors on the President. (A) is not a strong argument because the President's power as commander in chief is not involved here. That power involves the President's role as the supreme military leader, and military issues are not involved under the facts.

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:

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."

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 Ames 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:

The State of Ames, 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.

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. Andy sues, claiming that the legislation exceeds Congress's Article I powers. Which of the following statements is most likely true?

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.

A state statute provides that no alien may own a restaurant within the state and that it is unlawful for anyone to give, sell, or otherwise convey a restaurant to an alien. A citizen of Canada who legally resides in the state has entered into a contract to buy a restaurant located within the state from a restaurant owner. If the buyer and the seller join in a declaratory judgment action to test the state statute in a federal court, which of the following is true?

The burden of proof is on the state to show that the statute is necessary to achieve a compelling state interest. Because the state statute is based on alienage, it is subject to strict scrutiny and, thus, the state has the burden of proof. State laws based on alienage are subject to the strict scrutiny test, except when the law concerns alien participation in the functioning of the state government (and possibly "illegal" alien adults), in which case the rational basis test is applied. Under the strict scrutiny test, the government bears the burden of showing that the law is necessary to a compelling state interest. The state law here does not concern alien participation in the functioning of state government (or illegal aliens), and thus the strict scrutiny test will be used. The state thus has the burden of proof.

what is the strongest argument in favor of the presidents position on rescinding or abrogating treaties?

The constitution is silent on rescinding or abrogating treaties.

A civilian contract employee working for the United States Army was suspected of copying classified army documents onto a flash drive and selling the files to foreign governments. After a short investigation, the employee was arrested by military police. The employee was brought before a court martial, convicted of espionage, and sentenced by the court to 20 years' hard labor. The employee appeals his conviction and sentence on constitutional grounds. How should the court rule?

The conviction is unconstitutional because the court martial did not have jurisdiction to try the employee. The conviction is unconstitutional because of lack of jurisdiction. Court martial of a civilian generally is prohibited as long as actual warfare has not shut down the civilian courts. The employee is a civilian and nothing in the facts indicates that warfare has shut down the civilian courts.

Congressional approval for DCC: (Western & Southern Life v. State Board of Equalization.

The dormant Commerce Clause does not limit the additional authority of Congress to regulate commerce among the states however it sees fit. Congress passed the McCarran-Ferguson Act which specifically authorized individual states to pass regulations governing their insurance industries. California, in requiring a tax on insurance activities occurring within its borders, was acting pursuant to the authority Congress granted it.

The State of Ames'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. Ames sues the federal government, claiming that the law is unconstitutional. Which of the following statements is true?

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 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. The State of Ames sued, claiming that the federal law could not constitutionally be applied to states. Which of the following statements is likely true?

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.

The State of Ames 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 of Barr sought to have the law declared unconstitutional. It preferred to ship the produce out of Ames and have it packed in Barr before being distributed. Which of the following statements about the law is likely true?

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 Ames 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 Ames economically.

Ames City in the State of Ames recently barred the sale and possession of ammunition within the city limits. A homeowner challenged the ban in a suit filed in Ames district court. If the reviewing judge enjoined the law, it would likely be because:

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.

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?

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.

The State of Ames recently passed a law limiting the length of freight trains that passed through the state. The limits in the Ames law are stricter than those of any other state. A group of railroads challenged the law, claiming that the Ames 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 Ames law is invalidated it would mostly likely be because:

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.

Congress passes a law under its commerce power giving Indian 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 Ames is sued by an Indian tribe wishing to negotiate a compact to open a casino on reservation land located in Ames. Which of the following statements about the federal legislation is true?

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 Indian 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.

Ames City in the State of Ames recently decided to invest in city-wide Wi-Fi. As part of its investment, it required equipment be installed on the roofs of many office and apartment buildings in Ames City. One office building owner sued, claiming that the city had taken part of his property. A reviewing court should find for:

The owner, because there has been a permanent, physical occupation of his property. The paradigmatic compensable taking is a permanent physical occupation of privately owned land for a public purpose. Such occupation, regardless how small, requires fair market value compensation to the owners.

Congress passed a law requiring agencies that compile financial info about individuals and sell it to banks to verify the accuracy. Plaintiff files suit seeking damages after discovering an agency profile claim contained several inaccuracies. If a court dismisses his lawsuit, it would likely be because:

The plaintiff has failed to prove injury in fact. must be a concrete and particularized injury. Must be harmed in a tangible way, not merely that the agency ran afoul of the statute.

The States of Ames and Barr both produce beef cattle. The State of Ames 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. The State of Barr 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, the State of Barr passed a law that prohibits the display of beef for sale of any grade other than that of the USDA. Ames beef producers sue in federal court, claiming that the Barr law is unconstitutional. A reviewing court should rule for:

The plaintiffs, because the law effectively discriminates against Ames 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 Barr cattle by depriving Ames 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.

The State of Ames 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 Ames's waters but are not citizens of Ames. A commercial fisherman from the neighboring state of Barr 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?

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.

After the release of various news stories about the President's possible violation of political campaign funding laws, a federal grand jury investigation and an investigation by a special Senate subcommittee were initiated. The Senate subcommittee subpoenaed documents and records from several top officers of the executive branch. Learning of the subpoenas, the President ordered all executive officials to refuse to turn over materials, claiming "executive privilege." Which of the following statements is most accurate?

The presidential papers are presumptively privileged, but the privilege must yield to a demonstrated specific need for evidence in a pending legislative proceeding. Executive privilege is an inherent privilege necessary to protect the confidentiality of presidential communications. Under this privilege, presidential documents and conversations are presumptively privileged, but this privilege must yield to a demonstrated need for such materials as evidence in a criminal case in which they are relevant and otherwise admissible. [United States v. Nixon (1974)] Although the Supreme Court has not expressly decided that the privilege must also yield to a demonstrated need for evidence in a pending legislative proceeding, such an extension of Nixon is likely, and none of the other alternatives is at all accurate.

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:

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 protect its citizens from the fluctuating price of energy, a state formed a state-owned electric company that operated exclusively within the state. The company provided electricity to residents of the various cities within the state on the basis of a rate schedule that reflected the historic costs associated with servicing each city. Under the schedule, electricity rates for citizens of a particular city were 15% higher than the premiums for any other city in the state. A group of residents from that city brings suit in state court to require the state electric company to make the premiums equal for everyone. What is the most likely result?

The state electric company will prevail, unless the residents show that there is no rational basis for higher rates. The legislation here is merely economic in nature and economic legislation will be upheld as long as there is a rational basis for the legislation. The residents would have the burden of proving that there is not a rational basis for the higher premiums here.

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. The State of Ames 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:

The state law presents an obstacle to congressional goals. 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).

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:

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 state statute provides: "Any merchant desiring to sell within this state any product or goods manufactured outside of the United States must (i) obtain a special license from the state for $50 and (ii) clearly mark the goods as to specify their country of origin." The statute makes it a misdemeanor for any merchant to willfully sell goods without complying with these statutory requirements. Which of the following statements is correct regarding the constitutionality of the statute?

The statute is unconstitutional in its entirety. The statute is an unconstitutional violation of the Commerce Clause. Regulation of foreign commerce is exclusively a federal power because of the need for the federal government to speak with one voice when regulating commercial relations with foreign governments. The existence of legitimate state interests underlying state legislation will not justify state regulation of foreign commerce. The state statute, in imposing requirements for a license costing $50 and for a clear marking of goods as being from a foreign country, clearly is an attempt by the state to restrict or even eliminate the flow of such goods in foreign commerce. Thus, the statute is unconstitutional.

Alabama is home to an environmentally friendly manufacturer of paper products. To encourage environmentally responsible packing and to promote the consumption of alternatives to all out-of state paper products. Assume that Alabamas state purpose to preserve the environment, is sincere. Alabama regulation is likely:

Unconstitutional, because Alabama could limit the use of all paper products in the state.

Two years ago, President Jones nominated Angelica Smith to be Secretary of Education. Due to an ongoing political dispute, the Senate refused to hold a confirmation vote on Smith'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 Smith as Secretary of Education. If subject to a constitutional challenge, a reviewing court reviewing would likely conclude that Smith's appointment is:

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 Smith's appointment is unconstitutional because she did not receive the Senate's consent, which is required under the Appointments Clause.

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. The Governor of New Jersey challenges the constitutionality of the grant program. A reviewing judge is most likely to declare the grant program:

Unconstitutional, because the grant program impermissibly coerces states to comply with federally mandated standards. 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.

In an effort to reform federal criminal justice policy, Congress enacts the Sane Criminal Justice 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:

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.

The year is 1910. In response to skyrocketing prices for baseball tickets, the City of New York passes an ordinance setting a maximum price for tickets to professional baseball games. The ordinance is challenged in federal court by a New York professional baseball team as a violation of the 14th Amendment. A reviewing judge would most likely find that the ordinance is:

Unconstitutional, because the ordinance infringes on the economic liberties protected under the Due Process Clause. The correct answer is C. Here, the key fact is that the case takes place in 1910 during the heart of the Lochner era. During this period, the Court adopted a more aggressive approach to striking down state and local economic regulations under the Due Process Clause under the "freedom of contract," including efforts to regulate maximum prices for goods and services. While this law would likely be upheld as constitutional today (with the demise of the Lochner era), a reviewing court in 1910 would view it with a much more skeptical eye towards the constitutionality of economic regulations like this one.

Congress enacts a law establishing a new Federal Privacy Administration, an 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 Federal Privacy 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 Federal Privacy Officer is subject to a constitutional challenge, a reviewing court is likely to hold that the process is:

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 Federal Privacy 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 Officer.

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 the State of Ames 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 Ames, and that there was no connection to interstate commerce. The defendants were convicted and appealed their conviction. A reviewing judge should:

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.

The State of Ames, 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, the State of Ames 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 Ames-produced widgets are more expensive than those made overseas and sues in federal court to have the law declared unconstitutional. A reviewing court should:

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.

To stabilize state corn prices, a state purchased large quantities of corn from resident farmers and converted the corn into biodegradable plastics. The state then sold the plastics to state residents at cost and to out-of-state residents at cost plus 25%. An out-of-state corporation purchased biodegradable plastics from the state at a cost substantially below the price other companies charge. Nevertheless, the corporation believes that it is unconstitutional for the state to charge out-of-state purchasers more than resident purchasers. The out-of-state corporation, therefore, brings suit in federal court challenging the state pricing scheme. Assuming that the court has jurisdiction, should it uphold the constitutionality of the pricing scheme?

Yes because as a market participant the state is free to charge nonresidents more than residents. The court will likely reject the company's challenge to the state pricing scheme. Although the Commerce Clause generally prohibits states from discriminating against out-of-state businesses to benefit local economic interests, the market participant exception applies here. The Commerce Clause does not prevent a state from preferring its own citizens when the state is acting as a market participant (e.g., buying or selling products, hiring labor, giving subsidies, etc.). Because the pricing scheme here involves the sale of goods, the state can constitutionally charge whatever prices it desires to whomever it desires.

Congress passed a law imposing a 50% excise tax on each pack of cigarettes manufactured for sale in the United States. An amendment was successfully added to the original bill requiring that all proceeds from the tax be used for antismoking advertisements. The amendment included severability language (indicating that if the amendment were stricken for some reason, the remainder of the law should stand). The various tobacco companies were required to pay the tax directly to the federal government. A tobacco company filed suit in the appropriate federal court, contending that the tax should be struck down as a violation of the freedom of speech protected by the First Amendment. Is the court likely to find the tax constitutional?

Yes because the tax does not force the tobacco companies to speak. The tax is constitutional because it represents a proper exercise of the power of Congress to tax and spend for the general welfare. Pursuant to the Constitution, Congress may tax and spend to provide for the general welfare. A congressional tax measure will be upheld if it bears some reasonable relationship to revenue production or if Congress has the power to regulate the taxed activity. Congress may spend for any public purpose, not merely the accomplishment of other enumerated powers. The tax at issue here bears a reasonable relationship to revenue production. Also, the purchase and sale of cigarettes in the United States is subject to congressional regulation, as an activity having a substantial economic effect on interstate commerce. Thus, the tax itself is valid. The amendment to the original tax bill is also valid, as a reflection of a congressional determination to use the proceeds of the tax for the promotion and implementation of an antismoking program, presumably in furtherance of public health. This is a public purpose for which Congress can spend pursuant to the General Welfare Clause. Although people (and corporations) cannot generally be forced to convey a message with which they disagree, they can be forced to pay taxes that fund messages with which they disagree.

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?

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.

A state enacted a law banning the use within the state of computerized telephone solicitation devices, and requiring that all telephone solicitation calls within the state to in-state numbers be dialed by human beings. Federal legislation and administrative regulations control only the rates to be charged for telephone calls. Is the legislation valid?

Yes, because the statute does not conflict with federal legislation or the negative implications of the CC. The legislation is valid because the statute does not conflict with federal legislation or violate the Commerce Clause. The states may regulate local aspects of interstate commerce as long as Congress has not adopted regulations concerning the subject matter or preempting the entire area of regulation. Even absent federal legislation, under the negative implications of the Commerce Clause the state regulation must not discriminate against interstate commerce or unduly burden it. Here, there is no federal legislation directly conflicting with the state law, as the facts state that the federal government only regulates the rates that may be charged by phone companies. Neither has Congress preempted the field. Field preemption occurs when Congress shows an intent to occupy an entire field, thus precluding any state regulation. If the law does not state whether state law is to be preempted, the Court will look to the comprehensiveness of the scheme and whether Congress has created an agency to administer over the area. Here, the legislative scheme does not seem comprehensive, and although the facts indirectly mention the existence of an agency (since there are relevant administrative rules), the Court will presume that historic state police powers are not superseded unless that was the clear and manifest purpose of Congress. Finally, nothing in the facts indicates that the state law discriminates against out-of-state competition, and the law does not unduly burden interstate commerce, because the incidental burden on interstate commerce does not appear to outweigh the legitimate local benefits produced by the regulation.

A state statute makes it a felony for anyone in the corridors or on the grounds of any building in which a court may be in session to make a speech or carry a sign intended to improperly influence judicial proceedings. During a murder trial, a friend of the defendant was arrested under the statute for carrying a sign on the steps of the courthouse bearing the message: "Free the defendant or the judge will die." Can the friend constitutionally be convicted under the statute?

Yes, because the statute does not violate the freedom of expression guaranteed by the First Amendment. The friend can constitutionally be convicted because the statute does not violate the First Amendment. Certain public property (e.g., public streets or parks) is so historically associated with the exercise of First Amendment rights that speech thereon can be regulated only by content neutral proscriptions. Other places controlled by the government, however, are not so historically linked to speech activities, and in such locations free speech might interfere with the intended use of such locations. Thus, the government can regulate access to these limited public forums and nonpublic forums based on the subject matter of the speech, as long as the regulation is reasonably related to the purpose served by the property and is not designed merely to suppress a particular point of view. A courthouse and its grounds is not a public forum. (The surrounding sidewalks are, but that is not in issue here.) The statute, although based on the subject matter of speech, is viewpoint neutral and reasonably related to the courthouse purpose of promoting a stable, orderly atmosphere in which judicial proceedings can take place free of improper outside influence or coercion. Thus, the statute is valid and the friend can be convicted for her actions.

A package delivery service that operates throughout the United States is based in a southwestern state. The company specializes in transporting packages to airports, where air freight companies or commercial airlines transport the packages to their cities of destination. However, the company's entire fleet of trucks operate only in the state in which it is based. The company purchased the trucks from dealers within the state. The company's drivers pick up packages from shippers within the state and the packages are then delivered to an airport located in the state, where employees of the airlines load the packages onto their planes. Each shipper is charged a service fee by the company. The state wishes to impose a 5% transaction tax on each of the fees collected by the company for the services that the company renders in the state. Would the federal courts probably rule that such a tax is constitutional?

Yes, because the tax is severable from any effect it might have on interstate commerce. The transaction tax in this case, which is being applied to the local activities of an interstate company, is valid because it is not discriminatory and does not unduly burden interstate commerce. A "transaction tax" is essentially a privilege or occupation tax—i.e., a tax on the privilege of doing business in the state. This type of tax is constitutional if: (i) it does not discriminate against interstate commerce; (ii) the activity taxed has a substantial nexus to the taxing state; (iii) the tax is fairly apportioned; and (iv) the tax fairly relates to services provided by the taxing state. Here, there is nothing in the facts to indicate that the tax is being imposed only on shipments being made in interstate commerce or only on interstate shippers; thus, no discrimination against interstate commerce exists. The transaction tax is on fees paid by shippers in the state to the company for transport of the packages within the state using its state-registered trucks; hence, a substantial nexus exists between the taxed activity and the state. The tax is fairly apportioned because it is a percentage of the service fee that the company sets for its purely local activity (in other words, it is severable from any effect it might have on interstate commerce). Finally, the company's use of the state's transportation network (e.g., roads and airport) in operating its business indicates that the transaction tax fairly relates to the services provided by the state. Therefore, this tax is valid.

Can Congress override the DCC?

Yes, default rule that Congress may override.

Can there be an injury, but just not redressibility?

Yes, for example, a parents claim for child is an injury just not redressable (Allen v. wright)

Do executive branch officials other than the President enjoy qualified immunity?

Yes, meaning they are immune if their actions were reasonable in light of the state of the law at the time of the actions.

Would a state law be upheld if it is not motivated by a desire to discriminate against non-citizens?

Yes, probably

do public contracts have stricter scrutiny?

Yes, those in which the state or political subdivision is a party, are tested by the same test, however they will likely receive stricter scrutiny, especially if the legislation reduces the contractual burdens on the state.

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?

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.

The President of the United States and the king of a foreign nation entered into a treaty agreeing that citizens of the foreign nation who reside in the United States would not be taxed by the United States and that United States citizens who reside in the foreign nation would not be taxed by it. The treaty was ratified by the United States Senate and the royal council of the foreign nation. One year after the treaty became effective, the foreign nation began to tax United States citizens within its borders. The President immediately declared the tax treaty to be void and ordered the Internal Revenue Service to tax citizens of the foreign nation living in the United States. Is the President's action constitutional?

Yes, under the foreign policy powers of the President. The President's action is constitutional pursuant to his power over treaties and foreign relations. The power to enter into treaties is vested in the President, and his power to act for the United States in day-to-day foreign affairs is paramount. Even as to foreign relations that require congressional consent, the President's powers are much broader than in the realm of internal affairs. No significant judicial control has been exercised over such declarations. Thus, this action is allowable under these broad powers.

Congress enacted a statute that purported to ban all discrimination against African-Americans in any commercial transaction taking place within the United States. Would the statute most likely be held constitutional?

Yes, under the thirteenth Amendment provision barring badges or incidents of slavery. The statute is constitutional as a legitimate exercise of congressional enforcement powers under the Enabling Clause of the Thirteenth Amendment. The Thirteenth Amendment prohibits slavery. The Enabling Clause of the amendment has been held to confer on Congress the authority to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident of slavery. Because the statute at issue bans all discrimination against African-Americans in commercial transactions, it necessarily reaches private conduct. Such congressional action is constitutionally permissible pursuant to the Thirteenth Amendment.

is a Peremptory Challenge a state action?

Yes.

Does the president have exclusive authority to formally recognize a foreign sovereign?

Yes. - sole organ over foreign policy.

Does the Constitution give the president the discretion to veto or to sign a piece of legislation?

Yes. The decision whether to veto a bill or not is within the presidents discretion.

Must the president consult with Congress before sending troops into war?

Yes. and the president is obligated to terminate their use within 60-90 days, unless congress has declared war.

AZ passed bill. Federal law had no comparable federal penalties, owning to Congress decision not to impose penalties.

a. the state is an obstacle to congressional aim.

What does the Contract Clause Limit?

ability of states to enact laws that retroactively impair contract rights. - does not affect contracts not yet made.

Fed law prohibits states from taxing the income of corporations who's only connection with the state is to send members of their sales forces into the state. Ames alleged that this was unconstitutional because it impinged on its state sovereignty. How should the court rule?

against the state, because the law is an example of express preemption. It looks like this prohibits the state from taxing, but what it really does it confer on corporations a federal right to engage in certain types of interstate commerce free from state inference.

What is a taking for public use? (eminent domain)

as long as the government acts out of reasonable belief that the taking will benefit the public. Ex: Eminent Domain: Kelo case- town economically depressed. took title away from home owners. took and sold to other private home owners. Sc said this was for public because they thought this would lead to more jobs and economic growth.

When the president acts contrary to express will of congress, it is?

at its lowest ebb.

if law is not discriminatory?

balancing test: 1) how burdensome is the law 2) does the burden outweigh the benefit of the law?

What is bicameralism?

both houses of congress must sign

What is a possessory taking/per se ?

confiscates or physically occupies property.

A town with a population of 30,000 merged with a city of 60,000. To protect voting rights of the citizens of the former town, a proposal was made that for a period of 20 years, beginning at the date of the merger, the city council of the merged city would consist of six persons. Each formerly separate municipality would be divided into three council districts. Each district from the former town would have approximately 10,000 residents, and each district from the former city would have 20,000 residents. A mayor would be elected at large. Before this proposal was placed on the ballot, the state attorney general issued an advisory opinion stating that the proposal was not in violation of any state statutory or constitutional provision. The proposal was placed on the ballot and was carried by large majorities in both the town and the city, and the districts were carved out. Three taxpayers filed suit to enjoin the holding of an election with council districts of such disparate proportions. The suit reached the state supreme court, which ruled that the governmental formula was constitutional under both the state and United States Constitutions. The plaintiffs wish to take the case to the United States Supreme Court. How should the Supreme Court proceed?

hear the federal issue involved, but decline to rule on state issue. The Supreme Court may grant certiorari to review a case from the highest court in a state that can render an opinion on the matter if a state statute's validity is called into question under the federal Constitution. [28 U.S.C. §1257] The Court may decide the federal issues, but cannot rule on the state law issues. B.(not hear the case, because it was decided below on an independent state ground)is incorrect even though the state supreme court may have had an independent state ground for finding the law constitutional under its state constitution. The Supreme Court will refuse to hear the case only if the state ground is adequate by itself to support the decision as well as independent, so that the Court's review of the federal ground for the decision would have no effect on the outcome of the case (such as if the state court had found the law invalid under both the state and federal Constitutions). Here, the Supreme Court's review of the state court opinion on the law's federal constitutional status may have an outcome on the case regardless of the state court's decision on the state constitutional issue; the Court therefore will hear the federal issues involved.

What is an intelligible principal?

it guides the exercise of discretion when delegating power to executive branch.

When would a violate of second amendment be upheld?

law would be upheld if substantially exalted to important government interest.

How can congress limit the presidents removal power?

may make removal possible for 'good cause shown'. but it must be an officer where independent from the president is desirable.

What does the necessary & proper clause need?

more than a rational connection between power claimed and article I power.

Does the taking clause use traditional levels of scrutiny?

no it does not use traditional levels.

Is temporarily denying an owner development of property a taking?

no, it is not a taking if it is reasonable. ex: Lake Tahoe- three year moratorium or development. the delay was reasonable- therefore, no compensation.

Can a person bring suit because they are a citizens/taxpayer?

no, that is a generalized grievance.

what is the intelligible principle standard?

only guidance provided by Congress was that the standards in question be 'fair and equitable' or in the 'public interest'. - must provide clear policy standards.

What is P&I of the 14th amendment used for?

only used to protect right to travel. (protect people from their own state)

When will the federal court hear a pending state court case?

only will hear it if being conducted with bad faith (merely to harass) ect.

Is a discriminatory effect not present merely because a state law's regulatory burden falls on out of state firms....therefore has to be more. Increase market share used in cars for in-state

pg. 117

Do executive agreements prevail over conflicting state laws? what about conflicting federal laws or the constitution?

prevail over state laws. do not prevail over federal laws.

What is a public function?

private entity performing a task that has been traditionally by the government.

What is the takings clause?

private property shall not be taken for public use without just compensation.

Treaties agreement with the US and a foreign country that is negotiated by the president and is effective when ratified by the_____

ratified by the Senate.

If law is discriminatory?

strict scrutiny test: 1) the law is necessary to achieve an important state purpose, 2) there are no other reasonable alternatives.

A state enacted a statute to provide financial aid for residents of the state who attend public or private colleges and universities in the state. Under this statute, eligible students receive varying amounts of money, depending on need. A student living in the state who has never paid taxes applied for a grant of funds under this statute to attend a private college in a different state. His application was denied because the college was outside of his home state. The student filed suit in federal court against the appropriate state official, challenging the constitutionality of the denial on equal protection grounds and to compel the granting of his application. Which of the following statements is most correct?

the student has standing to maintain the action despite the fact that he never paid taxes in state. The student has standing. A person challenging the constitutionality of a government action must have standing to raise the issue. To have standing, a person must show that he is injured by a government action (injury in fact) and that a favorable decision will eliminate the harm. Generally, a taxpayer does not have standing to challenge the way tax money is spent because any alleged injury is too remote. However, here the student is not bringing suit as a taxpayer; rather he is alleging that the state policy of providing financial aid only for residents who attend schools in the state injures him by depriving him of such aid solely on the basis of attending a college outside the state, thus violating his right to equal protection. A ruling in the student's favor will eliminate the harm to him. Therefore, the student has a concrete stake in the outcome of this controversy, entirely independent of whether he has ever paid taxes in the state.

Legislative vitos and line item vitos are..?

unconstitutional must be bicameralism and presentment.

Federal statute states, "anyone who crosses state lines for the purpose of selling a controlled substance shall be subject to five years"

uphold law, Because Congress can close the channels of interstate commerce to particular use.

what is a congressional goal?

when a state law poses and obstacle to the attainment of certain congressional objectives.

When can the Supreme Court decline merits?

when facts indicate the state courts decision rested on adequate and independent state grounds.

If there is a conflict between a federal law and a treaty, what controls?

whichever one was adopted last.

What affects Congress tax power?

who is collecting it. is it intended to change behavior?

Can a property owner bring a taking challenge even as to regulations that were already in place when the property was acquired?

yes!

In an effort to protect the dwindling California condor population, Congress enacted the Condor Preservation Act, which made it illegal to take or sell any part of a California condor. The constitutionality of the Act is challenged by a seller of gifts and artifacts, including artifacts made out of California condor feathers. Is the statute valid?

yes, because the statute is rationally related to interstate commerce. The statute is valid because it is rationally related to interstate commerce. Regulating the sale of an item made from a California condor clearly affects commerce. Thus, Congress can act under its broad commerce power. The regulations do not compel surrender of the artifacts, and there is no physical invasion or restraint on them. Neither does the statute prohibit all economic uses of the property (e.g., the artifacts can be displayed in the store, admission can be charged to view them, etc.). Thus, there is no taking of a property right without just compensation. Therefore, Congress's power to regulate is proper, even though it diminishes the opportunity to make a profit.

Can Congress, by statute apply constitutional norms to private conduct?

yes, can require private actors meet same standards that the constitution imposes.

Can congress authorize state action that would otherwise violate the CC?

yes.

Can congress impose ministerial reporting on state & local authorities?

yes.