ConLaw Themis Questions

A potential candidate for city council publicly expresses his opinion to the media that although he has not yet officially declared his candidacy, he is not optimistic about his chances of winning if he were to run for a city council position within a particular political party.  Because he has an interest in both running and winning, he therefore publicly declares that he would like to be placed on the ballot as a member of "every party possible" in order to increase his chances.  The elections commissioner publicly declares that if the potential candidate attempts to "spread his luck around the ballot," he will be prohibited from being placed on the ballot at all.  The potential candidate sues in federal court, stating that such a prohibition is unfair.

How should the court proceed?

Answer: Dismiss the case, because the commissioner has not prohibited the potential candidate's inclusion on the ballot

Article III of the Constitution limits the jurisdiction of federal courts to actual cases or controversies.  An actual case or controversy exists when a dispute between adverse parties is capable of judicial resolution—i.e., ripe for adjudication.  A suit is ripe when the plaintiff has suffered actual harm or an immediate threat thereof.  But a suit based on potential future harm is unripe and should be dismissed.

Here, the commissioner made a statement of his future intentions, but he has not actually prohibited the potential candidate's inclusion on the ballot.  Additionally, execution of the commissioner's threat is contingent upon the potential candidate officially declaring his candidacy and seeking placement on the ballot for every possible party.  These contingencies show that there is no immediate threat of actual harm.  Therefore, this unripe case should be dismissed.

In response to growing concerns about the overcrowding of landfills with scrap metal nationwide, Congress passed a statute requiring all unwanted vehicles to be disposed of at federally licensed auto-recycling facilities.  These facilities were able to recycle more components of vehicles than most other recycling facilities.  However, due to the high operating costs of these facilities, the cost of disposing of the vehicles was much higher than the cost of disposing of them at general-purpose recycling facilities.  A state wants to dispose of its fleet of decommissioned trucks at a state-operated recycling facility.  However, this facility is not federally licensed.

Is the state permitted to dispose of its decommissioned trucks at the state-operated facility?

Answer: No, because the federal statute regulates interstate commerce

The commerce clause gives Congress broad regulatory authority over most activities involving two or more states.  This includes the power to regulate:

• the channels of interstate commerce (e.g., airports)

• the instrumentalities of interstate commerce (e.g., planes)

• people and things moving in interstate commerce (e.g., commercial shipments) and

• in-state activities that, singly or in the aggregate, substantially affect interstate commerce (presumed when activity is economic in nature).

Here, a federal statute requires the disposal of all unwanted vehicles at auto-recycling facilities licensed by the federal government.  A state wants to dispose of a fleet of its decommissioned trucks at a state-operated recycling facility, but this activity, in the aggregate, likely has a substantial effect on interstate commerce.  This means that the federal statute is a valid exercise of Congress's commerce powers.  Therefore, the state must comply with the federal statute and cannot dispose of its decommissioned trucks at the state-operated facility.

Due to the rising cost of water, Congress enacted a statute that allocated $20 million to fund a consortium of independent nonprofit water organizations.  The purpose of the consortium was to address the various issues causing a rise in the cost of water and water shortages across the United States and to fund research into solutions.  The statute provided clear guidelines about what the consortium should research and what it could spend, and it specified that the remaining funds would be allocated for infrastructure improvements.  In addition, the statute delegated to the Department of the Interior the power to select the water organizations to participate in the consortium.

Is the statute constitutional?

Answer: Yes, because Congress has the power to spend for the general welfare of the public.

The taxing and spending clause has been broadly interpreted to give Congress the power to spend for the general welfare—i.e., for any public purpose—not just to carry out its other enumerated powers.  Therefore, spending money to figure out ways to cut the cost of water and reduce water shortages is a proper use of Congress's power to spend for the general welfare.

A state anticipates a possible reduction of its native oyster population due to a variety of factors, including noncustomary weather patterns and polluted waters.  To discourage excessive fishing until oyster numbers are confirmed for the season, the state enacts a statute raising the cost of oyster-fishing licenses for all out-of-state residents to 20 times that of in-state residents.  The statute does not distinguish between commercial and recreational oyster fishing.  An out-of-state commercial oyster fisherman files suit in federal court to have the statute struck down.

Is the statute constitutional?

Answer: No, because the statute violates the privileges and immunities clause of Article IV.

The Supreme Court has recognized that a state has ownership over wildlife and other important resources within its boundaries and may therefore preserve these resources for its own citizens.  However, the state must still comply with the Constitution when doing so.  For example, the Article IV privileges and immunities clause, also known as the comity clause, prohibits states from discriminating against citizens of other states by denying them a right of state citizenship—including the right to practice a commercial trade or business.

Here, the statute seeks to limit oyster fishing by charging out-of-state residents more for fishing licenses.  Access to recreational activities is not a right of state citizenship, so the privilege and immunities clause is not violated by charging nonresidents more for recreational oyster-fishing licenses (Choice D).  However, the right to practice commercial fishing is a right of state citizenship.  Therefore, the statute wrongfully discriminates against nonresident commercial fishermen by charging them a higher fee in violation of the Article IV privileges and immunities clause.

In response to recent unusual earthquake activity, a large city has enacted an ordinance requiring the permanent placement of seismographic equipment in the basements of 20 randomly selected commercial buildings throughout the city as part of the creation of an early-warning network.  Although the owners of the buildings will not be compensated, the cost of the purchase and installation of the equipment is to be borne by a private university that will operate the early-warning network.  The owner of one building that has been randomly selected as a site for this equipment has challenged this law as unconstitutional, though the actual impact on him would be negligible.

Should the court rule in favor of the owner?

Answer: Yes, because the equipment will reside permanently in the owner's building.

A physical taking occurs when the government (or a third party authorized by the government) permanently and physically occupies private property—regardless of the public interest it may serve.  The Fifth Amendment takings clause, which is applicable to the states through the Fourteenth Amendment due process clause, bars the government from taking private property unless (1) the taking is for a public use and (2) the owner receives just compensation—i.e., the property's fair market value.

Here, the ordinance authorized a private university (third party) to place seismographic equipment on the owner's land (permanent and physical occupation) to create an early-warning network for earthquake activity (public use).  Although installation of the equipment serves the public interest by warning of earthquake activity and the economic impact on the owner will be slight, the city's action constitutes a taking.  And since the owner will not be compensated for this taking, the ordinance is unconstitutional.  Therefore, the court should rule in the owner's favor.

A state with heavy snowfall each winter sought to prevent accidents and injuries on the road caused by snow falling off of the roofs of large trucks.  To further this interest, the state enacted a statute that requires state-employed road maintenance crews to set up random checkpoints at highway on-ramps and state border crossings during the winter months.  At these checkpoints, every truck above a certain size is required to stop so the maintenance crews can make sure that any snow on its roof is brushed off.  The statute has caused significant traffic delays, but the effect on the rate of accidents on highways in the winter has been minimal.

An out-of-state company that ships its goods across the state has started losing business because this program has made it nearly impossible to estimate delivery times due to the delays.  As a result, the out-of-state company has brought an action challenging the constitutionality of the state statute.

Is the company likely to succeed in its constitutional challenge to the state statute?

Answer: Yes, because the state statute imposes an undue burden on interstate commerce.

The commerce clause gives Congress broad power to regulate interstate commerce.  The negative implication of this clause (i.e., the dormant commerce clause) is that states cannot unduly burden interstate commerce.  An undue burden can arise from a discriminatory law—i.e., a law favoring in-state over out-of-state economic interests—or a nondiscriminatory law.  Under the Pike balancing test, a nondiscriminatory law will be upheld unless the challenger shows that the law's burden on interstate commerce clearly exceeds its local benefits.

Here, the statute is nondiscriminatory because it requires every truck above a certain size traveling in the state to stop at random checkpoints.  But the statute imposes a heavy burden on interstate commerce since the checkpoints have caused out-of-state companies to lose business due to significant traffic delays.  Such a heavy burden clearly exceeds the local benefits of the statute, which has minimally reduced winter highway accidents.  Therefore, the company's challenge is likely to succeed because the statute unduly burdens interstate commerce.

A municipality that owned a public swimming pool normally uses government funds to hire lifeguards and other staff and to maintain the pool.  During hours when the pool is closed, the municipality allows private parties to reserve the pool, so long as they provide proof of appropriate liability insurance and arrange their own lifeguards and other staff.  A private group reserved the public pool in order to host an "All-American" swim competition to raise funds for veterans.  The competition was open to the general public.  However, because the group wanted to promote patriotism, all participants in the competition were required to be U.S. citizens.  A resident noncitizen wanted to participate in the swim competition, but he was refused entry.  The man has sued the group in the appropriate court for violating his rights to equal treatment under the Fourteenth Amendment.

Is the man likely to prevail in his action?

Answer: No, because the group is not a state actor and is therefore not subject to the Fourteenth Amendment.

The Constitution generally only protects against wrongful conduct by the government, not private persons.*  As a result, government action is necessary to trigger constitutional protections.  Under the state-action doctrine, a private actor qualifies as a government actor when (1) the private actor performs a traditional government function or (2) the government is significantly involved in the private actor's activities.  Significant involvement exists when the government:

• has a mutually beneficial relationship with the private actor (e.g., joint venture)

• creates a nexus by affirmatively facilitating or authorizing private action (e.g., through a police officer acting under color of law) or

• is pervasively intertwined in the private actor's management or control.

When the state-action doctrine applies, the private actor can be sued for violating the Constitution—including the Fourteenth Amendment equal protection clause.

Here, the private group is not performing a traditional government function by hosting a swim competition.  And merely allowing the group to reserve the pool does not affirmatively facilitate the group's actions or entwine the municipality in the group's management.  Nor does it create a mutually beneficial relationship since any private party can reserve the pool if it provides proof of insurance and arranges its own staff.  Therefore, the man is unlikely to prevail because the group is not a state actor (Choice D).

A proposed federal statute would make it a crime for an employer to compel an employee to continue working for the employer until the employee paid off a debt to the employer anywhere in the United States.

Is this proposed statute likely unconstitutional?

No, because the Thirteenth Amendment gives Congress the power to eliminate involuntary servitude.

Section 1 of the Thirteenth Amendment prohibits all government and private entities from engaging in slavery or involuntary servitude—e.g., forcing an employee to continue working until the employee paid off a debt owed to the employer.  And the Section 2 enforcement clause gives Congress the power to enact legislation to eliminate involuntary servitude.  Therefore, the proposed federal statute is likely constitutional.

A small, struggling, formerly industrial city in one state was only 30 miles from the border of a neighboring state and only 40 miles from a booming city in the neighboring state.  In an effort to entice more citizens of the neighboring state to come to the small city to shop, dine, and otherwise spend money, the small city passed an ordinance relieving out-of-state citizens from paying the small city's sales tax.  A group of small-city citizens properly brought a suit against the city, challenging the ordinance.

Of the following constitutional provisions, which would be the basis on which the citizens could most effectively challenge the ordinance?

Answer: The equal protection clause of the Fourteenth Amendment

All state and local laws must comply with the equal protection clause of the Fourteenth Amendment.  The equal protection clause is a constitutional safeguard that individuals or groups can use to challenge laws that treat similarly situated people differently (i.e., discriminate).  Here, the small city's ordinance is discriminatory because out-of-state citizens are relieved from paying the small city's sales tax while in-state citizens are not.  Therefore, the small city's citizens can most effectively challenge the ordinance on the basis of the equal protection clause.

(Comity Clause) The Article IV, Section 2 privileges and immunities clause prohibits states from treating citizens of other states in a discriminatory manner by denying them a right of state citizenship.  But this clause does not prohibit states from discriminating against their own citizens (as seen here).

A state highway administration, acting pursuant to statutory authorization by the state legislature, has promulgated rules for large electronic billboards located along roads maintained by the state.  These rules stem from concern about the potential for driver distraction and the ensuing adverse consequences for highway safety.  Among the rules is one that bans the graphic display of violence.  The producer of a movie wants to promote the movie through a short clip from the movie on billboards subject to this rule.  The clip contains a graphic display of violence.  The producer has filed an action in the appropriate federal court challenging the state highway administration's rule as a violation of the First Amendment as applicable to the states through the Fourteenth Amendment.

By which of the following standards should the state highway administration's rule be judged?

Answer: As a content regulation, it must be necessary to achieve a compelling governmental interest.

The First Amendment free speech clause prohibits the government from unduly restricting an individual's right to freely communicate information and ideas.  Regulations based on the content of speech (i.e., its message, subject, or ideas) are presumptively invalid and will be upheld only if they survive strict scrutiny.

Here, the state highway administration's rule prohibits the graphic display of violence on large electronic billboards, so it should be judged as a content regulation.  This means that strict scrutiny applies, and the rule will be upheld only if the government proves that the rule is necessary and narrowly tailored (i.e., the least restrictive means) to achieve a compelling governmental interest.

(Choice B)  Although the movie clip is commercial in nature, the rule itself does not regulate commercial speech.  That is because the rule applies to any display that appears on a large electronic billboard, even those that have a noncommercial purpose (e.g., public service announcements).

Concerned with the proliferation of signs about upcoming events and the failure to remove those signs after the event, a city enacted an ordinance specifying that "all signs concerning upcoming events may not be placed more than 14 days before the event and must be removed within 7 days after the event; no more than 10 signs per event are allowed on city property."

A social organization wants to display signs about its monthly dinner, which is held to attract new members, in greater number and for a longer period than permitted by the ordinance.  The organization has filed a lawsuit challenging the constitutionality of the ordinance.

Of the following, by which standard will this ordinance be judged?

Answer: It must be necessary to achieve a compelling governmental interest and narrowly tailored to meet that interest.

The First Amendment free speech clause protects the right to freely communicate and receive information and ideas.  To ensure such protection, content-based restrictions on speech are presumptively unconstitutional and subject to strict scrutiny.  This means that the government can restrict speech based on what is being said (i.e., its messages or ideas) only if it can prove that the restriction is necessary and narrowly tailored to achieve a compelling governmental interest—a nearly impossible task.

Here, the ordinance restricts the time period during which signs about upcoming events may be placed.  It also restricts the number of those signs that may be placed on city property.  Since the ordinance imposes these restrictions on one subject (upcoming events) but no others (e.g., candidacy for public office), it is a content-based restriction that is subject to strict scrutiny review.  Therefore, the city must prove that the ordinance is necessary and narrowly tailored to achieve a compelling governmental interest.

(Choice A)  Content-neutral restrictions that regulate the time, place, or manner of speech—e.g., no signs allowed on city property—are constitutional if they satisfy intermediate scrutiny review.  This standard of review requires that the restriction be narrowly tailored to serve a significant government interest and leave open alternative channels of communication.  However, since the ordinance here is a content-based restriction, strict scrutiny applies.

A defendant in a criminal trial wore a shirt depicting a political symbol.  The judge ordered the defendant to remove the shirt and wear it inside out, explaining that the clothing constituted a political statement that could improperly influence the jury and thereby undermine the fairness of trial.  When the defendant, contending that he had a right to make a political statement, refused, the judge held the defendant in contempt.

Can the defendant successfully challenge the contempt order on the grounds that the court's order to remove his shirt violated his First Amendment Free Speech Clause rights?

Answer: No, because the courtroom is a nonpublic forum.

The First Amendment protects the right of free expression to encourage the free flow of ideas—even on government property.  A traditional or designated public forum (e.g., sidewalk, civic auditorium) requires that speech restrictions be content neutral and satisfy intermediate scrutiny (see image above).  In contrast, speech restrictions in nonpublic forums—i.e., public property that is has not traditionally been associated or designated as a forum for speech (e.g., government offices, jails, military bases, courtrooms, polling places)—must be:

• viewpoint-neutral—i.e., the government may prohibit speech on certain issues altogether but may not allow only one side of an issue to be presented and

• reasonably related to a legitimate governmental interest—i.e., satisfy rational basis scrutiny.

Here, a courtroom is a nonpublic forum because it is government property that is not held open for the free expression of ideas.  And the judge banned the defendant from wearing the shirt based on its political content—not based on its specific political point of view (viewpoint neutral).  The judge did so because the shirt's political statement could undermine the fairness of the trial, which is reasonably related to the government's legitimate interest in providing a fair trial to the defendant.  Thus, the defendant cannot successfully challenge the contempt order.

A woman and her ex-husband shared joint custody of their children in State A.  Without court approval, the woman took the children and moved to State B.  The woman was arrested, convicted of kidnapping in a State B court, and imprisoned for two years.  After completing her prison sentence, the woman returned to State A, where she, her ex-husband, and their children currently reside.

Last month, the legislature in State A enacted a statute that requires individuals convicted of kidnapping to register with local law enforcement and provide it with the individual's name, current address, and place of employment.  The information provided by the individual is maintained in a database that is accessible to the public.  The purpose of the database is to protect the public by providing basic information about individuals who have been convicted of kidnapping.

The woman has filed suit in a court in State A, challenging the constitutionality of the statute.

Is she likely to succeed?

Answer: No, because the statute's punitive effect does not clearly override its nonpunitive purpose.

The ex post facto clauses prohibit federal and state governments from enacting criminal laws that have a retroactive punitive effect (i.e., ex post facto laws).  As a result, this clause generally does not apply to civil laws because their purpose is nonpunitive.  However, a civil law will be deemed to be an ex post facto law when its retroactive effect is so punitive that it clearly overrides its nonpunitive purpose.

Courts weigh several factors to determine whether the punitive effect of a retroactive civil law clearly overrides its nonpunitive purpose.  These include whether the law:

• imposes an affirmative disability or restraint (e.g., imprisonment) (not seen here)

• has historically been regarded as punishment (e.g., public shaming)

• promotes the traditional aims of punishment (e.g., retribution)

• is rationally related to its nonpunitive purpose*

Here, the statute requires convicted kidnappers to register with law enforcement so that their personal information can be maintained in a public database.  The statute's purpose is to protect the public from convicted kidnappers—not to punish or shame them for their past illegal conduct.  And since the statute's registration requirement is rationally related to protecting the public, the statute's retroactive punitive effect does not clearly override its nonpunitive purpose.  Therefore, the statute is constitutional 

A state legislature enacted a statute that created strict requirements for obtaining a license to operate a taxi within the state.  It was passed in response to a number of serious accidents involving taxi drivers in the state's major cities.  The statute requires a person to pass three road tests, pass a difficult written examination, and pay a $150 licensing fee to receive a license.  The statute also requires yearly recertification.  The statute affects men disproportionately to women because 90 percent of the taxi drivers in the state are men.  Two male taxi drivers have filed suit, challenging the statute's constitutionality.

Is the statute constitutional?

Answer: Yes, because it is rationally related to a legitimate state interest

Discriminatory laws can be challenged under the equal protection clause and are generally subject to rational basis review, which requires that a law be rationally related to a legitimate government objective.  But heightened scrutiny is used when a law substantially impacts a fundamental right or intentionally discriminates against a suspect or quasi-suspect class.  A law can intentionally discriminate:

• on its face – the language of the law distinguishes between different classes (intent presumed)

• in its application – a facially neutral law is purposefully applied differently to different classes or

• in its motive – an otherwise neutral law was enacted to disproportionately impact a protected class.

Here, although the statute disproportionately affects men (quasi-suspect class), it is not subject to heightened review since there is no evidence that this discrimination was intentional.  That is because the statute:

• requires that all taxi drivers satisfy rigorous licensing requirements (no facial discrimination)

• is applied equally to men and women (no discriminatory application) and

• was not enacted to target men (no discriminatory motive).

And since the statute is rationally related to the government's legitimate interest in the health and safety of the public, it is constitutional.

A federal statute established a life insurance exchange that allowed U.S. citizens and noncitizens to purchase affordable life insurance policies through it.  U.S. citizens were immediately eligible to participate in the exchange, but resident noncitizens were not eligible to participate in it until they had resided in the U.S. for at least five years.  A resident noncitizen who has resided in the U.S. for four years was denied eligibility pursuant to the statute and has filed suit in federal court challenging the statute on constitutional grounds.  Specifically, the resident noncitizen claims that the statute violates the equal protection component of the Fifth Amendment due process clause.

Is the resident noncitizen likely to prevail?

Answer: No, because Congress has plenary authority over immigration and naturalization under Article I of the Constitution.

Under Article I of the Constitution, Congress has plenary (i.e., exclusive) authority over immigration and naturalization, so federal laws based on U.S. citizenship are presumptively constitutional.  To rebut this presumption and show that such a law violates the equal protection component of the Fifth Amendment, a challenger must show that the law is not rationally related to a legitimate government interest—i.e., that the law is arbitrary or unreasonable.

Here, the federal statute makes U.S. citizens immediately eligible to participate in the life insurance exchange.  But resident noncitizens are not eligible to participate until they have resided in the U.S. for at least five years.  The U.S. Supreme Court has repeatedly held that Congress has a legitimate interest in providing benefits only to citizens because U.S. citizens have closer ties to the U.S. than noncitizens.  Since the federal statute is rationally related to this interest, it is likely constitutional, and the resident noncitizen is unlikely to prevail.

A man was on trial in state court for child trafficking.  Due to the sensitive nature of the case, the prosecution requested that the judge issue a gag order prohibiting the publication of information about the proceedings.  The judge denied the prosecution's request, even though his ruling was likely incorrect per the state's rules of criminal procedure.  At trial, the man testified that a friend was involved in the child-trafficking scheme.  Although the man's allegation was later proven to be false, it irreparably damaged the friend's reputation and caused her to be terminated from her job.

The friend has filed a suit for negligence against the judge, arguing that he is liable for the damages she suffered as a result of his erroneous decision to deny the gag order.  The judge has moved to dismiss the action.

Is the court likely to dismiss the action?

Answer: Yes, because the judge is immune from liability.

Judges possess absolute immunity from civil liability for official judicial actions—including rulings that are grave procedural errors—unless the court clearly lacked subject-matter jurisdiction at the time the action was taken.  This ensures that judges are free to issue decisions during judicial proceedings without fear that they will later be personally liable for them.

Here, the judge likely committed a grave procedural error when—contrary to the state's rules of criminal procedure—he denied the prosecution's request for a gag order (Choice C).  As a result, the friend suffered irreparable damage to her reputation and was terminated from her job after the man testified to her involvement in the child-trafficking scheme.  But since there is no indication that the court lacked subject-matter jurisdiction at the time the ruling was made, the judge is immune from liability and the action will likely be dismissed.

A tenured professor who had been employed for 30 years at a state university was dismissed.  A week before the dismissal took effect, the professor was informed that she was being dismissed due to allegations of plagiarism in several of her published works.  The professor was not given the opportunity to respond to the allegations against her prior to her dismissal.  Shortly after her dismissal, the professor contested her termination in a post-termination evidentiary hearing, at which her termination was upheld.  The professor then filed an action in federal court, arguing that her termination was unconstitutional as she was denied due process of law.

Was the professor's termination constitutional?

Answer: No, because the professor was not provided with a pre-termination opportunity to respond to the allegations of plagiarism.

When a state attempts to deprive an individual of life, liberty, or property, the Fourteenth Amendment requires that the state provide the individual with procedural due process.  To determine the process due, courts balance the government's interest against the individual's interest.  Since a public employee who can only be terminated for cause has a property interest in such employment—and termination is a serious deprivation of that interest—due process requires that the employee receive:

• notice of his/her alleged misconduct

• a pre-termination opportunity to respond to that allegation and

• a post-termination evidentiary hearing to determine if the termination was warranted.

Here, the state-university professor had a property interest in her job because she was tenured and therefore could only be terminated for cause.  The university provided the professor with notice and a post-termination evidentiary hearing.  But since the professor was not given the opportunity to respond to the allegations of plagiarism against her prior to her dismissal, her termination violated due process and was unconstitutional (Choices C & D).

Several national newspapers ran stories about a dramatic increase in the number of licensed pharmacists who prescribed controlled substances illegally because they had lied about their educational background.  In response, Congress enacted a statute requiring state health officials to conduct background checks on pharmacists involved in the sale of controlled substances that had been previously transported in interstate commerce.

Is the federal statute constitutional?

Answer: No, because Congress has no authority to require state governments to enforce federal law.

The commerce clause grants Congress broad power to regulate interstate commerce, including:

• channels of interstate commerce

• instrumentalities of interstate commerce

• persons/things moving in interstate commerce and

• activities that substantially affect interstate commerce.

But Congress must comply with other constitutional provisions when exercising its commerce power.  This includes the Tenth Amendment, which prohibits Congress from commandeering state or local governments by requiring them to enforce federal laws (or enact state or local laws).

Here, the federal statute requires state health officials to conduct background checks on pharmacists involved in the sale of controlled substances that had been previously transported in interstate commerce.  Even if Congress can regulate this conduct under its commerce power, it has no authority to require state governments to enforce federal law.  Therefore, the federal statute violates the Tenth Amendment and is unconstitutional.

Due to an increasing number of students at public schools who suffered allergic food reactions, a city enacted an ordinance that prohibited certain ingredients that caused allergic reactions from being used in lunches prepared and served in public schools.  To prevent allergic food reactions, only students who purchased lunch from the school's cafeteria were permitted to eat lunch in the school's commons area.  Students who brought their lunches from home were required to eat them in a designated room that was separate from the commons area.

A student whose diet was based on his religious beliefs brought his lunch from home.  Although his lunch did not contain any of the prohibited ingredients listed in the ordinance, the student was required to eat it in the designated room separate from the commons area.  The student's parents have filed suit and challenged the constitutionality of the ordinance, arguing that it violated the equal protection clause of the Fourteenth Amendment.

Is the ordinance likely constitutional?

Answer: Yes, because it is rationally related to a legitimate government interest.

Government actions that treat similarly situated persons differently (i.e., discriminate) can be challenged under the Fourteenth Amendment equal protection clause.  These challenges are typically subject to rational basis review.  This standard of review presumes that the government's actions were constitutional.  As a result, the challenger must show that the law has no rational relation to any legitimate government interest—i.e., that the law is arbitrary or invidiously discriminatory.

Here, the city enacted an ordinance to further its legitimate interest in preventing students from suffering allergic food reactions.  The ordinance was discriminatory because it required students who brought lunches from home to eat them in a designated room that was separate from where students who purchased lunches at school ate theirs.  But the court will likely rule that the ordinance is constitutional since there is a rational basis for this separation—that lunches brought from home are more likely to contain ingredients that cause allergic reactions.

A student joined a small national organization during her freshman year of college after several of her friends, who were active in the organization, told her about the organization's annual all-expenses paid ski trip for its card-carrying members.  The student attended a recruitment drive, signed a pledge of loyalty, paid her annual dues, and received an organization pin.  The student later joined other members of the organization at the ski resort.  During a meeting around the ski lodge fireplace, the student learned for the first time that the organization was a radical organization.  The organization's members were preparing to use subversive means to achieve their objective of installing the organization's spiritual leader as Supreme Dictator of the United States.  To this end, the organization was stockpiling mind-control serum and planned to poison the nation's water supply.  After returning home, the student consciously avoided members of the organization and never participated in the organization's activities again.  However, the student's name remained on the organization's active-member roster, and she did not report the organization's illegal objectives to the authorities.

Three years later, the student was offered employment at a federal agency.  However, the agency rescinded the offer before the student accepted it because a background check revealed that she was still an active member of the organization.

Was the agency's action constitutional?

Answer: No, because the student did not intend to install the organization's spiritual leader as Supreme Dictator of the United States.

The First Amendment protects against government interference with a person's right to associate with any group or organization.  But since this right is not absolute, the government can punish (i.e., deny public employment to or criminally prosecute) persons who:

• are active members of a subversive organization

• know of the organization's illegal objectives and

• specifically intend to further those objectives.

Here, a background check revealed that the student was listed as an active member of the subversive organization.  The student knew of the organization's illegal objective to install its leader as the Supreme Dictator of the United States.  However, she never specifically intended to further that objective since she ceased participating in the organization upon learning about its subversive nature (Choice C).  Therefore, the federal agency's rescission of its employment offer to the student was unconstitutional.

An employee of a large nondenominational church served five years as the minister for the church's youth program.  During the past year, the minister regularly missed work because he suffered from chronic migraine headaches.  As a result of his frequent absences from work, the church's governing body voted to terminate the minister's employment.  The minister filed suit against the church for monetary damages, alleging that its decision to terminate him violated a federal law that prohibits discrimination against public and private employees based on disability.  In response, the church has filed a motion for summary judgment.

Answer: Grant the motion, because the free exercise clause requires dismissal of the suit.

The First Amendment free exercise clause prohibits government interference with a religious organization's right to shape its faith and mission.  As a result, the Supreme Court has recognized the ministerial exception, which protects religious organizations from civil liability for employment discrimination when they hire or fire employees who serve in ministerial roles.  This exception applies to any employee whose primary function is to advance the organization's religious mission (e.g., pastor, parochial school teacher).

Here, the minister filed an employment discrimination claim against the church for violating federal law when it terminated him because his medical condition caused him to regularly miss work.  However, since the minister's primary function was to advance the church's religious mission, the church was immune from civil liability for its decision to terminate him.  Therefore, the court should grant the church's motion for summary judgment and dismiss the suit.

A state legislature enacted a statute that prohibits anyone convicted of a felony from voting in state elections.  A group of released felons who had completed their sentences and paroles filed a class action in federal court, seeking a declaration that the statute violated their constitutional rights.

Is the court likely to uphold the statute as constitutional?

Answer: Yes, because it is permitted by Section 2 of the Fourteenth Amendment.

Under the Fourteenth Amendment equal protection clause, a discriminatory law that substantially impacts the fundamental right to vote is only justified if it survives strict scrutiny (Choice A).  This occurs in the rare instance that the state proves that the law is necessary to achieve a compelling state interest.  However, the U.S. Supreme Court has held that, under Section 2 of the Fourteenth Amendment, states may prohibit felons—even those unconditionally released from prison—from voting in elections.  Therefore, the court will likely uphold the statute as constitutional.

A legal representative of a resident in a state-owned and state-operated mental health facility sued an official of the facility in federal court.  The representative, who is a citizen of another state, seeks an injunction to compel the official to comply with a state law that requires the least-restrictive-environment approach to be used in mental health facilities.  The state official has moved to dismiss the action as unconstitutional under the Eleventh Amendment.

Should the court grant the official's motion?

Answer: Yes, because the action seeks to enforce state law rather than federal law.

The Eleventh Amendment prohibits foreign governments and private parties from suing a state in federal court without the state's consent.  This immunity extends to suits against state officials for a violation of state law—even if the remedy that is sought is injunctive relief instead of monetary damages (as seen here) (Choice A).  Therefore, the Eleventh Amendment applies to the representative's suit against the state official, and the federal court should grant the official's motion to dismiss.

A man was charged with violating a state criminal statute in state court.  While prosecution was pending, the man filed a civil action under 42 U.S.C. § 1983 in federal district court, alleging that the state statute as applied to him violates the U.S. Constitution.  The man sought an injunction against the state's prosecution of him.

Should the federal district court hear the man's claim?

Answer: No, because the man seeks an injunction against a pending state criminal proceeding

A federal court may invoke a variety of reasons to abstain from deciding a case properly before it.  One situation arises under the Younger abstention doctrine, which applies when declaratory or injunctive relief is sought in federal court.  This doctrine requires abstention when such relief would interfere with a pending state proceeding on any criminal matter or a particular civil matter* that:

• involves an important state interest and

• provides an adequate opportunity to litigate the federal issue(s).

Here, the man asked the federal court to enjoin the pending state criminal proceeding against him.  However, the state has an important interest in enforcing its own criminal law, and the man has an adequate opportunity to litigate his constitutional claim in state court.  The federal court must therefore abstain from hearing the man's claim.

To address a budgetary shortfall in the judiciary, a state legislature passed a statute that increased various court fees, including the fee to file an appeal.  The statute provided that the filing fee could only be waived for defendants who have been convicted of a capital crime and sentenced to death.

A defendant who was convicted and imprisoned for a noncapital criminal offense has filed an appeal with the state's appellate court.  At the time the appeal was filed, the defendant requested that the court waive the filing fee because he was indigent and unable to pay it.  The appellate court denied the defendant's request on the basis that the state statute limited the waiver to defendants who had been convicted of a capital crime and sentenced to death.  The appellate court then dismissed the defendant's appeal because he had not paid the filing fee.

The defendant has properly filed suit in a federal court to challenge the constitutionality of the state appellate court's ruling.

Should the federal court uphold the state appellate court's ruling?

Answer: No, because the defendant was indigent.

State laws that discriminate against individuals based on wealth (e.g., ability v. inability to pay a court fee) can be challenged under the Fourteenth Amendment equal protection clause.  Since an individual's wealth is not a suspect class or quasi-suspect class, such laws are generally subject to rational basis scrutiny and upheld.  However, courts will depart from this test and apply strict scrutiny when a state law prohibits the exercise of a fundamental right (e.g., the right to appeal) based on an individual's wealth.

Under strict scrutiny, a discriminatory statute is unconstitutional unless it uses the least restrictive means (i.e., is necessary) to achieve a compelling government interest.  Here, the state may have a compelling interest in adequately funding the state's judicial system, but this statute is unconstitutional since there are less restrictive ways to achieve that interest—e.g., raising taxes, reducing spending in other areas.  Therefore, the federal court should overturn the state appellate court's(D2012) ruling.

A policyholder sued her casualty insurance company for failing to timely pay a claim.  The case reached the highest court of the state.  The sole issue before the court was whether the policyholder was entitled to punitive damages.  The company timely moved to recuse one of the appellate judges on the ground that the judge was pursuing a similar action against the insurance company seeking punitive damages in a state district court.  Relying upon a recent U.S. Supreme Court decision to interpret state law, the judge determined that she did not need to recuse herself.  As a result, the company's motion was denied.  The judge later cast the deciding vote in the court's punitive damages decision in favor of the policyholder.

The company timely and properly filed a petition for a writ of certiorari in the U.S. Supreme Court, seeking a review of the judge's decision not to recuse herself.

Is the U.S. Supreme Court likely to review the state court's judgment?

Answer: Yes, because the judge's refusal to recuse herself violated the due process clause of the Fourteenth Amendment.

The Fourteenth Amendment due process clause requires that the government provide a meaningful opportunity to be heard before a neutral decision-maker when depriving persons of life, liberty, or property.  As a result, a judge must recuse him/herself from a case when (1) the judge has a direct, personal, substantial, pecuniary interest in it or (2) a serious, objective risk of actual bias exists.  A failure to do so violates due process.

Here, the company moved to recuse a judge from the case before the state's highest court because the judge was pursuing a similar action (i.e., punitive damages) against the company in a state district court.  The judge's refusal to recuse herself likely violated due process since any decision she rendered would impact her case—creating a serious, objective risk of actual bias.  And since SCOTUS has appellate jurisdiction over a state-court decision that turns on federal law, it will likely review the state court's judgment.

A professional basketball player who was a citizen of one state sued an artist who was a citizen of another state.  The artist had created multiple oil paintings of the player's image from which limited-edition prints were created and sold without the player's permission or consent.  The player sought damages in excess of $80,000 for violation of his state statutory right to publicity.

The state trial court ruled in the player's favor, but the state appellate court overturned this decision on the basis that the free speech clause of the state constitution created a privilege that protected the artist from this action.  In making its decision, the appellate court relied on a recent decision issued by the U.S. Supreme Court.  The appellate court decision denied the player recovery on his state-based cause of action.  The state's highest court declined to hear the appeal.  The player then filed a petition for writ of certiorari with the U.S. Supreme Court.

Can the Supreme Court grant this petition?

Answer: Yes, because the state court decision relied on a recent decision issued by the U.S. Supreme Court.

The Supreme Court of the United States (SCOTUS) may use its discretionary appellate jurisdiction and grant a writ of certiorari to review final state-court judgments.  But since SCOTUS may only review such judgments if they are based on federal law, it cannot review a judgment based on adequate and independent state grounds.  This occurs when:

• state law fully resolves the matter, so the outcome of the case is not affected by federal law (adequate) and

• the state court did not rely on federal law to reach its decision (independent).

Here, the state appellate court's ruling rests on an adequate state ground because the court found that the state constitution's free speech clause protected the artist from liability.  However, this ruling does not rest on an independent state ground because the court relied on federal law (a SCOTUS decision) to interpret the state's free speech clause.  Therefore, SCOTUS may grant the player's petition for writ of certiorari.

The constitution of State X grants the state legislature the power to redraw state legislative districts every 10 years.  In the last redistricting cycle, the legislature created a "majority-minority" district for the state senate in which the black population comprised a majority of the voters who resided in the district.  The legislature's intent in creating this district was to increase the representation of black voters in the state senate because they had historically been disenfranchised in the state.  A white resident of the legislative district is a registered voter.  He filed suit in the appropriate court against the state legislators who drafted the redistricting map, challenging the district's creation as a violation of the equal protection clause of the Fourteenth Amendment.  Seventy percent of the state's population is white.

If the court agrees to hear the plaintiff's claim, is strict scrutiny the appropriate standard of review for the court to apply to this constitutional issue?

Answer: Yes, because race was the predominant factor in creating the majority-minority district.

Article I of the Constitution grants states the power to draw state and federal legislative districts.  However, when exercising this power, states must comply with other constitutional provisions.  This includes the Fourteenth Amendment equal protection clause, which requires that race not be the predominant factor used to draw boundary lines for state or federal legislative districts.  If it is, then the boundary lines will be subject to strict scrutiny review and likely deemed unconstitutional.

Here, the legislature created a legislative district for the state senate in which the black population comprised a majority of the voters who resided in the district.  Since the legislature's intent in creating this district was to increase the representation of black voters in the state senate, race was the predominant factor used to draw the boundary lines for the district.  Therefore, strict scrutiny is the appropriate standard of review for the court to apply.

The District of Columbia government has the power to levy an income tax.  In an effort to encourage nonresidents to conduct business in the District of Columbia, Congress enacted a federal statute that prohibits the District of Columbia from imposing an income tax on individuals who work there but reside elsewhere.

Is the statute likely to be found constitutional?

Answer: Yes, under the enclave clause in Article I, Section 8

Congressional legislation must stem from Congress's enumerated powers.  The enclave clause gives Congress plenary (i.e., exclusive) legislative power over the District of Columbia.  As a result, a federal statute that prohibits the District of Columbia from imposing an income tax on persons who work there but reside elsewhere is likely to be found constitutional

During a criminal trial in state court, the prosecutor sought and obtained a dismissal of the case.  When the prosecutor subsequently attempted to try the defendant again in state court, the trial court ruled that the prosecutor was barred from doing so.  The state appealed this decision.  The double jeopardy provision in the state constitution is identical to the double jeopardy clause in the Fifth Amendment of the U.S. Constitution.  Therefore, the state appellate court relied on case law of the U.S. Supreme Court that interpreted the Fifth Amendment double jeopardy clause to interpret the meaning of the state constitution's provision.  Based on this case law, the state appellate court ruled that the state constitution prevented the retrial of the defendant.

The state's highest court has declined to hear an appeal of the state appellate court decision.  The prosecutor then petitioned for review in the U.S. Supreme Court.

Is the U.S. Supreme Court likely to review the state appellate court judgment?

Answer: Yes, because the state appellate court relied on the U.S. Supreme Court's interpretation of the federal double jeopardy clause in interpreting state law.

The Supreme Court of the United States (SCOTUS) has appellate jurisdiction over most final state-court decisions that present a federal question.  But SCOTUS cannot exercise jurisdiction over, or review the merits of, such decisions if they are based on adequate and independent state grounds.  This occurs when:

• state law fully resolves the issue and the outcome of the case is not affected by federal law (i.e., adequate state grounds) and

• the final state-court decision is reached without relying on federal precedent (i.e., independent state grounds).

Here, the state appellate court ruled that the double jeopardy clauses of both the federal and state constitutions prevented the retrial of the defendant (adequate state grounds).  However, that decision relied on SCOTUS case law to interpret the state constitution (no independent state grounds) (Choice A).  Therefore, SCOTUS has jurisdiction to review the state appellate court's judgment and will likely do so.

In order to discourage the transfer of electrical products that could threaten national security and to raise revenue, Congress enacted a statute that imposed a tax on the export of electrical products containing military-grade technology to countries that were determined to be hostile to the United States.

Is the federal tax likely constitutional?

Answer: No, because Congress does not have the power to tax exported goods

The taxing and spending clause gives Congress broad power to tax and spend for the general welfare (i.e., any public purpose).  However, this power is not unlimited and must be exercised in compliance with other constitutional provisions—including the export clause.  The export clause prohibits federal taxation of:

• exported goods, which are goods leaving the U.S. and shipped to foreign countries and

• services and activities closely related to the export process.

Here, Congress enacted a federal statute that imposed a tax on any product containing military-grade technology that was shipped to foreign countries hostile to the United States.  Although the purpose of the tax was to protect national security and raise revenue, it is not within Congress's power to tax exported goods (Choice D).  Therefore, the federal tax is unconstitutional.

A state agency that issues licenses to real estate agents adopted a rule setting aside 10% of all licenses approved by the agency to racial minority groups.  The purpose of the rule was to help redress the historical discrimination against these groups and to help them achieve economic parity with other groups in society.  An applicant who is not a racial minority and whose license application was denied has filed suit in federal court, arguing that the rule is unconstitutional.  Assume that no federal statute applies.

Is the agency's rule constitutional?

Answer: No, because it only remedies a general societal injustice.

All race-based classifications imposed by the government are subject to strict scrutiny under the equal protection clause—even when those classifications are designed to promote racial equality.  That is because race is a suspect class that has historically faced discrimination.  As a result, the government must prove that its racially discriminatory actions are necessary to achieve a compelling government interest.

Here, the state agency developed an affirmative action rule that set aside a percentage of the licenses it issued for racial minorities (i.e., minority set-asides).  In Richmond v. J.A. Croson Co., the U.S. Supreme Court held that these discriminatory programs can only survive strict scrutiny if the government proves that:

• it has a compelling interest in remedying its own history of discrimination against the favored group and

• the discriminatory program is necessary because race-neutral methods are unavailable or insufficient to further that interest.

But here, the agency created this rule to address society's broad history of discrimination against racial minority groups—not the state's own specific history of racial discrimination.  Therefore, the agency's set-asides cannot survive strict scrutiny and its rule is unconstitutional (Choice C).