ConLaw MBE Questions

Congress enacted a statute directing U.S. ambassadors to send formal letters to the governments of their host countries, protesting any violations by those governments of international treaties on weapons sales.  The President prefers to handle violations by certain countries in a less formal manner and has directed ambassadors not to comply with the statute.

Is the President's action constitutional?

Answer: Yes, because the President and his subordinates are the exclusive official representatives of the United States in foreign affairs.

Article II vests the President with authority over a wide array of domestic and foreign policy areas.  When the President shares authority with Congress over a particular area (eg, federal agencies), the validity of the President's actions is determined by the Youngstown framework.  But when the President does not share authority with Congress, the President can exercise that exclusive Article II power without adhering to congressional directives.

One exclusive Article II power is the authority to communicate and negotiate with foreign governments as the official U.S. representative in foreign affairs.  The President can exercise this power directly or through his/her subordinates—including ambassadors and other executive-branch officials.  Therefore, it was constitutional for the President to direct the ambassadors not to comply with the federal statute regarding formal letters to foreign governments.

A man contracted with a moving company to ship household goods from the man's old home in State A to his new home in State B.

A federal statute provides that all liability of an interstate mover to a shipper for loss of or damage to the shipper's goods in transit is governed exclusively by the contract between them.  The statute also requires the mover to offer a shipper at least two contracts with different levels of liability.

In full compliance with that federal statute, the moving company offered the man a choice between two shipping agreements that provided different levels of liability on the part of the moving company.  The more expensive contract provided that the moving company was fully liable in case of loss or damage.  The less expensive contract limited the moving company's liability in case of loss or damage to less than full value.  The man voluntarily signed the less expensive contract, fixing the moving company's liability at less than the full value of the shipment.

The moving company's truck was involved in an accident in State B.  The accident was entirely a product of the negligence of the moving company's driver.  The man's household goods were destroyed.  In accordance with the contract, the moving company reimbursed the man for less than the full value of the goods.

The man then brought suit against the moving company under the tort law of State B claiming that he was entitled to be reimbursed for the full value of the destroyed goods.  The moving company filed a motion to dismiss.

In this suit, what action should the court take?

Answer: Dismiss the case, because the federal statute governing liability of interstate carriers is the supreme law of the land and preempts state tort law

The federal government and states share many powers, so they often regulate the same subject matter.  But under the supremacy clause, the U.S. Constitution, federal laws, and treaties are the supreme law of the land.  As a result, they preempt (ie, supersede) conflicting state laws, state constitutions, and local laws.

Here, the man and the moving company entered into a contract that limited the moving company's liability.  The man then sued under state tort law to hold the moving company fully liable.  But a ruling in the man's favor would conflict with a federal statute requiring that such disputes be governed exclusively by their contract.  And since the federal statute is the supreme law of the land and preempts state tort law, the court should dismiss the case.

An unconstrued state law prohibited the distribution within the state of "seditious propaganda."  The state prosecuted United States Post Office letter carriers under this law for delivering propaganda from a foreign country to state residents.

Which of the following statements is an INACCURATE description of the state's law as applied to the letter carriers?

Answer: It is an unconstitutional bill of attainder.

The Constitution bars the federal and state governments from enacting bills of attainder—i.e., legislative acts that punish specified persons (or an easily identifiable group of persons) without a judicial trial.  Here, the state law prohibits the distribution of seditious propaganda by all persons—not just specified letter carriers.  And since the state prosecuted the letter carriers under this law, it afforded them a trial prior to imposing any punishment.  Therefore, the law is not an unconstitutional bill of attainder as applied to the letter carriers.

A newly enacted federal statute appropriates $100 million in federal funds to support basic research by universities located in the United States.  The statute provides that "the 10 best universities in the United States" will each receive $10 million.  It also provides that "the 10 best universities" shall be "determined by a poll of the presidents of all the universities in the nation, to be conducted by the United States Department of Education."  In responding to that poll, each university president is required to apply the well-recognized and generally accepted standards of academic quality that are specified in the statute.  The provisions of the statute are inseverable.

Which of the following statements about this statute is correct?

Answer: The statute is constitutional, because Congress has plenary authority to determine the objects of its spending and the methods used to achieve them, so long as they may reasonably be deemed to serve the general welfare and do not violate any prohibitory language in the Constitution.

The taxing and spending clause gives Congress the power to spend federal revenue for the general welfare—ie, for any public purpose.  Aside from this narrow constraint, Congress has plenary (ie, absolute) authority to determine the objects of its spending and the methods used to achieve them.  But when doing so, Congress cannot violate any prohibitory language in the Constitution (eg, equal protection clause).

Here, the federal statute appropriates $100 million in federal funds to support basic research by universities located in the United States.  Such research may reasonably be deemed to serve the general welfare, and the statute does not violate any prohibitory language in the Constitution.  And since Congress has plenary authority to determine its spending goals and the methods for achieving them, the statute is constitutional.

Congress can delegate legislative power if it provides intelligible guidelines for the delegates to follow.  This standard is met here since Congress has clearly directed the Department of Education to conduct a poll of university presidents and specified the standards that must be applied in responding to that poll.

A Senate investigative committee released a report identifying three U.S. citizens as individuals who were organizing support for terrorist activities.  All three were employed by the U.S. government as park rangers.

In response, Congress enacted a statute naming these three individuals and providing that they could not hold any position of employment with the federal government.

Which of the following constitutional provisions provides the best means for challenging the constitutionality of the statute?

Answer: The bill of attainder clause.

The Article I bill of attainder clauses prohibit federal and state legislative acts that inflict civil or criminal punishment on named persons—or easily identifiable groups of persons—without a judicial trial.  Here, the federal statute bars three named park rangers from federal government employment.  And since this constitutes a civil punishment that is imposed without a trial, the statute is an unconstitutional bill of attainder.

(Choice B)  The Fifth Amendment due process clause requires the government to provide persons with notice and a meaningful opportunity to be heard before depriving them of a life, liberty, or property interest.  Public employment is a property interest when the employee (1) has an ongoing employment contract, (2) can only be fired for cause, or (3) receives assurances of continued employment—none of which apply here.

Twenty percent of a city's residents are members of minority racial groups.  These residents are evenly distributed among the many different residential areas of the city.  The five city council members of the city are elected from five single-member electoral districts that are nearly equally populated.  No member of a minority racial group has ever been elected to the city council.

A group of citizens who are members of minority racial groups files suit in federal district court seeking a declaratory judgment that the single-member districts in the city are unconstitutional.  The group claims that the single-member districting system in that city diminishes the ability of voters who are members of minority racial groups to affect the outcome of city elections.  The group seeks an order from the court forcing the city to adopt an at-large election system in which the five candidates with the greatest vote totals would be elected to the city council.  No state or federal statutes are applicable to the resolution of this suit.

Which of the following constitutional provisions provides the most obvious basis for the group's claim in this suit?

Answer: The Fifteenth Amendment.

The Fifteenth Amendment prohibits state and federal governments from abridging the right to vote—which includes the right to have that vote meaningfully counted—on the basis of race, color, or previous condition of servitude.  As a result, the Fifteenth Amendment provides a basis to challenge both:

• direct limitations on the ability to register to vote or cast a ballot (eg, only whites are allowed to vote) and

• dilutions of voting power (eg, districting system purposely limits minority voters' ability to affect election outcomes).

Here, the group of citizens is challenging the city's districting system on the ground that it diminishes the ability of racial minority voters to affect the outcome of city elections.  Since this alleges dilution of voting power based on race, the Fifteenth Amendment provides the most obvious basis for the group's claim.

A city in State X is a center for businesses that assemble personal computers.  Components for these computers are manufactured elsewhere in State X and in other states, then shipped to the city, where the computers are assembled.

A city ordinance imposes a special license tax on all of the many companies engaged in the business of assembling computers in that city.  The tax payable by each such company is a percentage of the company's gross receipts earned in the state.

A State X statute that authorizes municipalities to impose this license tax has a "State X content" provision.  To comply with this provision of the state statute, the city license tax ordinance provides that the tax paid by any assembler of computers subject to this tax ordinance will be reduced by a percentage equal to the proportion of computer components manufactured in State X.

A company assembles computers in the city and sells them from its offices in the city to buyers throughout the United States.  All of the components of its computers come from outside State X.  Therefore, the company must pay the city license tax in full without receiving any refund.  Other computer assemblers in the city use components manufactured in State X in varying proportions and, therefore, are entitled to partial reductions of their city license tax payments.

Following prescribed procedure, the company brings an action in a proper court asking to have the city's special license tax declared unconstitutional on the ground that it is inconsistent with the negative implications of the commerce clause.

In this case, should the court rule in favor of the company?

Answer: Yes, because the tax improperly discriminates against interstate commerce by treating in-state products more favorably than out-of-state products.

The commerce clause gives Congress extensive power to regulate interstate commerce, which encompasses nearly all activities that affect two or more states.  As a result, the negative implication of this clause—ie, the dormant commerce clause—prohibits states and municipalities from unduly burdening interstate commerce.  A state or municipal tax on interstate commerce is an undue burden unless the tax:

• is applied to persons or activities with a substantial nexus to the taxing state or municipality

• is fairly apportioned to avoid taxing interstate activities performed in other states

• does not discriminate by favoring local over out-of-state entities and

• is fairly related to services and benefits provided by the taxing state or municipality.

Here, the city's license tax applies to all companies that assemble computers in the city (substantial nexus) at a percentage of their gross receipts (fairly apportioned).  The tax is likely reasonable compared to the services provided by the city (fairly related).  But it discriminates against interstate commerce by allowing companies to reduce their taxes by using computer components manufactured in the state, thereby treating in-state products more favorably than out-of-state products (Choice B).  Therefore, the court should rule in favor of the company.

In the wake of massive terrorist attacks carried out inside the United States by foreign citizens, Congress declared war on the terrorists' nation of origin.  It also passed a statute requiring every permanent resident who is a citizen of the enemy nation to either immediately leave the United States voluntarily or be subject to deportation.  An inseverable provision of the new statute provides that the United States Supreme Court will have original and exclusive jurisdiction over any action brought to challenge the validity of the statute.

Is the new statute constitutional?

Answer: No, because cases brought under the statute do not fall within the categories of cases specified in Article III as those over which the Supreme Court shall have original jurisdiction.

Original jurisdiction is a court's power to hear and decide a case first—ie, before any appellate review.  Article III provides that the U.S. Supreme Court (SCOTUS) has original jurisdiction over:

• cases involving foreign ambassadors, public ministers, or consuls and

• cases in which a state is a party.

And though Congress has the power to limit SCOTUS's appellate jurisdiction, Congress cannot alter SCOTUS's original jurisdiction (Choice D).

Here, Congress passed a statute requiring every permanent resident who is a citizen of the enemy nation to leave the United States voluntarily or be subject to deportation.  The statute provides that SCOTUS will have original and exclusive jurisdiction over any action challenging the statute's validity.  Since this inseverable provision purports to expand SCOTUS's original jurisdiction beyond the categories of cases specified in Article III, the statute is unconstitutional.

Congress passed a statute providing that parties could no longer seek review in the U.S. Supreme Court of final judgments in criminal matters made by the highest court in each state.

What is the best argument supporting the constitutionality of the statute?

Answer: Congress has the power to make exceptions to the appellate jurisdiction of the Supreme Court

The U.S. Supreme Court (SCOTUS) has appellate jurisdiction to review a final judgment of lower federal courts and the highest state courts when the judgment turns on federal law.  But the Article III exceptions clause gives Congress almost unlimited power to regulate or make exceptions to this jurisdiction.  Therefore, that is the best argument supporting the constitutionality of the statute prohibiting SCOTUS from reviewing final judgments in criminal matters made by the highest court in each state.

SCOTUS jurisdiction
Type	Definition	Applicability
Original (Congress cannot adjust)	Case filed directly in SCOTUS	Cases involving either: ambassador/public minister/consul or  state as party
Appellate (Congress may limit)	Case filed after decision by either:  lower federal court or highest state court	All other cases by either: writ of certiorari or    direct appeal (rare)

A state adopted a rule denying admission to its bar to anyone who was currently or had previously been a member of a subversive group.  The state's bar-application form was then modified to ask applicants whether they were or had previously been members of any subversive organization.  An applicant refused to answer the question and was denied bar admission on that basis.  The applicant challenged the decision, arguing that the question infringed upon his freedom of association.

Is the applicant likely to prevail?

Answer: Yes, because a broad inquiry into an applicant's association with a subversive organization as a possible basis to deny bar admission violates the First Amendment unless it is necessary to protect a legitimate state interest.

The First Amendment protects the right to freely associate with any group or organization—including subversive organizations.  As such, the government cannot inquire about a person's associations for the sole purpose of withholding a right or benefit because of that person's beliefs.  Instead, the government must show that the inquiry is necessary (i.e., the least restrictive means) to protect a legitimate state interest.  As a result, a state may deny bar membership to a candidate who refuses to answer questions about her knowing membership in a subversive group only if that refusal obstructs the investigation of the candidate's qualifications.

Here, an applicant was denied bar admission for refusing to answer whether he was or had been a member of any subversive organization.  This question—like the associated rule—relates to the state's legitimate interest in ensuring that applicants have the requisite character and professional competence to practice law.  But that interest can be protected through less restrictive means—e.g., requiring a list of references and other professional information.  Additionally, the broad inquiry is not limited to the applicant's knowing membership in a subversive group.  As a result, he is likely to prevail.

A state statute requires each insurance company that offers burglary insurance policies in the state to charge a uniform rate for such insurance to all of its customers residing within the same county in that state.  So long as a company complies with this requirement, it is free to charge whatever rate the market will bear for its burglary insurance policies.

An insurance company located in the state files suit in federal district court against appropriate state officials to challenge this statute on constitutional grounds.  The insurance company wishes to charge customers residing within the same county in the state rates for burglary insurance policies that will vary because they would be based on the specific nature of the customer's business, on its precise location, and on its past claims record.

How should the court rule in this suit?

Answer: Hold the statute constitutional, because the statute is a reasonable exercise of the state's police power.

Under the Tenth Amendment, any power that the Constitution does not expressly grant to the federal government is reserved to the states.  This includes the broad police power to enact and enforce laws that are reasonably related to protecting public health, safety, and welfare—eg, requiring insurers to charge uniform rates to residents is reasonably related to protecting their financial welfare (as seen here).  But when exercising this power, states cannot violate other constitutional provisions like the due process and dormant commerce clauses.

The Fourteenth Amendment due process clause prohibits state deprivations of life, liberty, or property unless adequately justified.  A deprivation impacting an ordinary right (eg, an economic right—as seen here) is justified if it satisfies mere rational basis scrutiny.  Here, the statute satisfies this standard because it is reasonably related to the state's legitimate interest in protecting its citizens from varying insurance rates.  As a result, the statute does not deprive the insurance company of due process of law (Choice C).

Additionally, the Article I dormant commerce clause prohibits states from discriminating against or otherwise unduly burdening interstate commerce.  A nondiscriminatory law is unduly burdensome if its burden on interstate commerce clearly exceeds its local benefits.  Here, the statute is nondiscriminatory since it applies to all insurance companies.  And it is not unduly burdensome because there is no indication that it has any effect outside the state (Choice D).  Therefore, the statute is a constitutional exercise of the state's police power.

The President issued an executive order in an effort to encourage U.S. citizens to use the metric (Celsius) system of temperatures.  Section 1 of the executive order requires the U.S. Weather Bureau, a federal executive agency, to state temperatures only in Celsius in all weather reports.  Section 2 of the executive order requires all privately owned federally licensed radio and television stations giving weather reports to report temperatures only in Celsius.  No federal statute is applicable.

Is the President's executive order constitutional?

Answer: Section 1 is constitutional, but section 2 is not.

Article II gives the President, as the country's chief executive, the authority to direct the actions of federal executive agencies (eg, the U.S. Weather Bureau).  However, Congress also has authority over these agencies under the nondelegation doctrine, so the President must act with congressional approval or in a manner consistent with an act of Congress.  And since there is no applicable statute that conflicts with the executive order, section 1 of that order is constitutional (Choices B & D).

Additionally, the President generally has no Article II authority to direct the actions of persons outside of the executive branch (eg, privately owned companies) without congressional approval.  There are no circumstances presented in the facts that might justify an exception to this general rule (eg, a sudden attack on the United States).  Therefore, section 2 of the executive order is unconstitutional (Choices B & C).

A company wanted to expand the size of the building it owned that housed the company's supermarket by adding space for a coffeehouse.  The company's building was located in the center of five acres of land owned by the company and wholly devoted to parking for its supermarket customers.

City officials refused to grant a required building permit for the coffeehouse addition unless the company established in its store a childcare center that would take up space at least equal to the size of the proposed coffeehouse addition, which was to be 20% of the existing building.  The city officials' action was authorized by provisions of the applicable zoning ordinance.

In a suit filed in state court against the appropriate city officials, the company challenged this childcare-center requirement solely on constitutional grounds.  The lower court upheld the requirement even though the city officials presented no evidence and made no findings to justify it other than a general assertion that there was a shortage of childcare facilities in the city.  The company appealed.

How should the appellate court rule on the constitutionality of the requirement imposed by the city on the issuance of this building permit?

Answer: The requirement is unconstitutional, because the burden was on the city to demonstrate a rough proportionality between this requirement and the impact of the company's proposed action on the community, and the city failed to do so.

An exaction occurs when a local government conditions the issuance of a building or development permit on a landowner's promise to dedicate part of the property for public use.  And an exaction amounts to a Fifth Amendment taking requiring just compensation unless the government establishes:

• an essential nexus – the imposed condition substantially advances a legitimate government interest and

• rough proportionality – individualized and quantifiable findings show that the proposed development's impact on the community is roughly proportional to the imposed condition's impact on the landowner.

Here, the city conditioned the grant of a building permit on the company's promise to establish a childcare center in its store without just compensation.  This condition substantially advances its legitimate interest in alleviating the shortage of childcare facilities.  But the city failed to present any evidence to establish a rough proportionality between that condition and the impact of the company's proposed action on the community.  Therefore, the appellate court should rule that this exaction amounts to an unconstitutional taking.

A federal statute prohibits the construction of nuclear energy plants in this country without a license from the Federal Nuclear Plant Siting Commission.  The statute provides that the Commission may issue a license authorizing the construction of a proposed nuclear energy plant 30 days after the Commission makes a finding that the plant will comply with specified standards of safety, technological and commercial feasibility, and public convenience.  In a severable provision, the Commission's enabling statute also provides that Congress, by simple majorities in each house, may veto the issuance of a particular license by the Commission if such a veto occurs within 30 days following the required Commission finding.

Early last year, the Commission found that an energy corporation met all statutory requirements and, therefore, voted to issue the corporation a license authorizing it to construct a nuclear energy plant.  Because they believed that the issuance of a license to the corporation was not in accord with the applicable statutory criteria, a majority of each of the two houses of Congress voted, within the specified 30-day period, to veto the license.  On the basis of that veto, the Commission refused to issue the license.

Subsequently, the corporation sued the Commission in an appropriate federal district court, challenging the constitutionality of the Commission's refusal to issue the license.

In this suit, how should the court rule regarding the congressional veto of the energy corporation's license?

Answer: The veto is invalid, because Article I, Section 7 of the Constitution has been interpreted to mean that any action of Congress purporting to alter the legal rights of persons outside of the legislative branch must be presented to the President for his signature or veto.

Article I grants all federal legislative power to Congress, which consists of the House of Representatives and the Senate.  Article I also prescribes the method Congress must use to take legislative action—ie, any action that alters the legal rights of persons outside of the legislative branch.  Under this method, all legislative action must be:

• approved by both houses of Congress (ie, bicameralism) and

• presented to the President for approval or disapproval (ie, presentment).

As a result, congressional vetoes are always invalid since they attempt to overturn agency actions without adhering to the proper method of bicameralism and presentment.

Here, the federal statute authorizes an agency to issue licenses for the construction of nuclear energy plants.  Pursuant to this statute, the agency voted to issue a license to an energy corporation.  But the statute also includes a provision allowing Congress, by majority vote of both houses, to veto the agency's issuance of a license.  And though a majority of each house of Congress voted to veto the corporation's license (bicameralism), the veto was not presented to the President (no presentment).  Therefore, this legislative action is invalid.