Congress passes law eliminating the Supreme by jennyyingdi


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1. Congress passes a law eliminating the 1995-1997 U.S. Supreme Court term. How
might you argue that this is unconstitutional?

1. Congress does not have the express power in the Constitution to eliminate the term of the
Supreme Court. In fact, Art. III, § 2 states that “the judicial power of the United States shall be
vested in one Supreme Court.” Combined with the structure of the other enumerated powers of
the other branches, this statement indicates that the framers’ intent was that the powers of the
three branches of government be separate. Although Congress eliminated the 1801 Supreme
Court term, this was before the decision in Marbury v. Madison. In Marbury, Justice Marshall
stated that “It is emphatically the province and duty of the judicial department to say what the
law is.” Thus, a law eliminating the Supreme Court term would prevent it from saying “what
the law is.” Thus, this is against the separation of powers doctrine because it effectively, though
temporarily, reduces the number of branches of government to two.

2. Marshall’s decision in Marbury has been criticized as being based on an assumption
that the judicial branch should be the ultimate interpreter of the Constitution. Even
though the power of judicial review is not expressly stated in the Constitution, what
arguments can be made that judicial review of Congressional legislation is nevertheless
required in our system of government?

2. The Constitution is silent on the issue of what branch of government should be the ultimate
interpreter of the Constitution. Clearly, any branch of the federal government is free to interpret
the Constitution. However, in the event of a conflict, for practical reasons there must be some
body who is the ultimate arbiter. In a constitutional government based on limited powers, it does
not make sense for the branch who makes the laws to be able to interpret their own acts to
determine constitutionality. Presumably, this self-review would not be effective since it would be
biased and subject to political pressures leading to inconsistency. Supreme Court judges, since
they are appointed for life, are not as influenced by the term-to-term political pressures on the
Congress. Thus, they can make more consistent determinations of the law, and better protect the
interests and rights of the minority (although some might feel they are not counter-majoritarian
enough). Also, they are more trained in the law. Thus, review by the Supreme Court tends to
lend legitimacy to the governing process as viewed by the population.

3. Assume that Congress passes legislation that eliminates the appellate jurisdiction of
the Supreme Court in reviewing state court applications concerning affirmative action.
How might this be unconstitutional?

3. Art. III, § 2 states that the appellate jurisdiction of the Supreme Court is subject to “such
exceptions, and under such regulations as the Congress shall make.” A broad reading of Ex Parte
McCardle would seem to indicate that this power is very broad. However, there are limits on this
power, as are evidenced by Klien and Plaut. Specifically, under Klien, Congress may not alter the
appellate jurisdiction of the Supreme Court as a “means to an end” of altering the outcome of a
particular case. Also, Plaut seems to say that even if the restriction is to a general class of cases,
and not ostensibly to a particular case, it could still be an unconstitutional means to violate the

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separation of powers doctrine. Here, the legislation affects a whole class of cases. However, it is a
very important class of cases that has far reaching implications for several sections of the
constitution, including due process and equal protection. Thus, precluding the Supreme Court’s
power to decide these cases significantly affects the power of the Supreme Court to “say what the
law is.” Marbury. This would prevent the Supreme Court from ensuring uniformity and
supremacy of federal law because the states would then be the only interpreters of the
Constitution in these areas. Martin.

4. Congress passes federal legislation that would require that the school year in all
states be lengthened to 300 days per year (from a current 220-240 days). Congress rests
authority for this legislation on the commerce clause. Specifically, Congress finds that
the United States is suffering at home and abroad in economic competitiveness. They
find that a substantial cause of this disadvantage is poor educational level of American
workers when compared to that of the Japanese, who have a 300 day school year.
Congress finds that an increased educational level would lead to greater productivity,
export volume and product quality. Furthermore, Congress states that due to a need for
national uniformity in this area, all states must comply. Is this legislation a
constitutional exercise of the commerce power?

4. The commerce power has been described as a broad, plenary power that is “complete in itself,
may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed
by the Constitution.” Gibbons. As such, Congress has been able to regulate any activity, even a
local one, if it has a “close and substantial” relationship to, or affect on, interstate commerce.
Wickard. For purposes of determining what is a “substantial” affect, small local affects may be
“aggregated” in order to give effect to a larger regulatory policy that would otherwise be defeated
if each of the actions were viewed in a purely “local” sense. Id. Furthermore, Congress can
regulate totally local activities in order to effectuate its regulation of interstate commerce
(bootstrap argument), so long as the means used are “rationally related” to the legitimate end of
protection of interstate commerce. Darby. Here, the activities of individual schools appears to be
purely local in character. However, viewed in the aggregate, local school activities become a large
force. Thus, if they were found to have a “substantial affect” on interstate commerce, it is likely
that they could be regulated as a means of effectuating a valid exercise of the commerce power.
Typically, in a commerce power case, the Supreme Court will give deference to Congressional
findings of fact, in order to determine whether there is a “substantial affect” on interstate
commerce, and whether the means bear a “rational relationship” to the legitimate end of
regulation. E.g., Perez, and the civil rights cases. However, with the recent decision in Lopez, (
gun free school zone act unconstitutional because it does not have a “substantial affect” on
interstate commerce), it is likely that the 300 day school year provision will be struck down as
lacking the required “nexus” to interstate commerce. Specifically, the length of the school year is
not, on its face, a commercial activity. Also, Congress’ findings of the relationship between the
school year and commerce, like the government arguments in Lopez, rely on a long string of
inferences. This cuts against a “rational relationship.” Also, this legislation is an attempt to
regulate an area which has traditionally been under the police power of the states, leading to a
possible 10th amendment conflict. Specifically, since it requires uniform application, this

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legislation is counter to the federalist idea of allowing the states autonomy to experiment as
“laboratories.” As was seen in New York, Congress may not simply “commandeer the legislative
processes of the States by directly compelling them to enact and enforce a federal regulatory
program.” Thus, this legislation appears to be beyond Congress’ power to regulate interstate
commerce under the commerce clause. As a side note, perhaps Congress could implement the
same policy by offering federal monetary or other economic incentives to encourage states to
institute this extended school year without compelling them to do so.

5. Suppose Congress places a 10% tax on the profits of companies that hire illegal aliens
as part of their work force. Is this law constitutional under the Taxing Power?

5. Congress has the substantive power to tax and spend (on equal footing with the commerce
power), limited by the requirement that it be exercised to “provide for the general welfare.”
Butler. However, Congress may not impose a tax on an industry as a means of regulating it,
where the purpose of raising revenue is merely a “pretext” for accomplishing an illegitimate end
(i.e. regulating a local activity that may not be regulated under the commerce power). Bailey.
Nevertheless, a federal excise tax is not invalid merely because it deters the activity taxed, or
generates negligible revenue, as long as its regulations are “reasonably related” to collection of
the tax for a valid tax need. Kahriger. Thus, the answer to this question turns on whether the
Congress would have an independent power, for example under the commerce clause, to regulate
the hiring of illegal aliens. Assuming that sufficient nexus (“substantial affect”) with interstate
commerce can be found, this tax could be sustained under the “necessary and proper” clause.
Alternatively, if it generates sufficient revenue, the Supreme Court may simply refuse to do a
“pretext” analysis because there appears to be a “not irrational” relationship between the means
of the tax and a valid tax need. However, if Congress did not otherwise have the power to
regulate a company’s hiring of illegal aliens, this legislation would appear to be a “penalty” (as
in Bailey) rather than a tax. Specifically, the tax imposes a heavy burden (10% of profits is very
large tax) for departure from a “moral” standard, imposed without regard to how many illegal
aliens were employed, but simply whether they were employed at all. As in Bailey, the Court
would frown heavily on an apparent attempt to use the taxing power to accomplish an
illegitimate end that could not be reached by the commerce power.

6. Assume that Congress passes a permanent nationwide mandatory gasoline rationing
law. Congress bases authority for this law on the War Power. Congress reasons that
since most of the Saudi Arabian oil fields were torched during the war, and much of the
infrastructure supporting the middle-eastern oil industry was destroyed in the war, the
result has been a substantial increase (about 40%) in the price of gasoline. Thus,
Congress feels this legislation is necessary to correct the adverse affect that gasoline
prices are having on the economy, and ensure that it won’t happen in the future. Is this
law constitutional under the War Power?

6. Congress has the power, under the “necessary and proper” clause as applied to the War
Power, to “remedy the evils which have arisen from [a war’s] rise and progress,” even if the
formal hostilities had already ceased. Woods. Here, the Supreme Court would likely have no

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problem finding the rational relationship between the means of rationing gasoline and the
legitimate end of correcting the adverse affects of war-caused, high gasoline prices on the
economy. However, the war power may be limited by the rest of the constitution, namely the 9th
and 10th amendments, in the same way that the commerce power is bounded. Although the
Court in Woods did not have an opportunity to pass on this question, because the rent control
act was clearly needed, they felt that there were natural limits on the War Power due to political
influences on Congress. However, in his concurrence, Justice Jackson implied that a War Power
regulation probably can not last as long as the effects and consequences of war last because many
of the effects are permanent. Here, the gasoline rationing system probably does not need to be
permanent. It is likely that in time the price of oil will fall, or at least remain steady with
inflation, because the infrastructure destroyed in the middle-east will be rebuilt, resulting in a
more abundant supply. Thus, the Court might find that the “permanence” aspect of the
legislation is unconstitutional as not being “rationally related” to a legitimate end.

7. Suppose Congress signs an official treaty with Ireland which guarantees that the U.S.
will take all steps necessary and proper to assist Ireland in locating an prosecuting
members of the IRA for terrorist acts. Pursuant to this treaty, Congress passes a national
law requiring that all local law enforcement agencies round up and confine suspected
IRA terrorists in the United States, pending determination of their involvement in
international terrorism. What is wrong with this legislation under the Treaty Power?

7. Congress has the authority, pursuant to the necessary and proper clause as applied to the
Treaty Power, to enact legislation which regulates local activities as a means of giving effect to a
valid treaty. Missouri v. Holland. Here, Congress has signed a valid treaty. Thus, it becomes the
“supreme law of the land.” However, the means used to give effect to the valid treaty are subject
to the limitations of the constitution itself. Reid v. Covert. Specifically, a treaty can not confer
power on the Congress which is repugnant to the constitution. Id. Here, the legislation which
requires rounding up of a “suspected” IRA members is clearly a violation of the due process
clause of the 5th amendment. Also, it may violate equal protection, although we haven’t studied
that yet. Thus, the legislation, but not the treaty, is unconstitutional.

8. Assume that California passes a state statute which allowed private companies to
collect recyclable materials, but requires them to use a certain in-state processing
companies to convert the recyclables into raw material before taking the material out of
the state. Further assume that Congress has been completely silent with respect to state
recycling regulation (no pre-emption problems). The state justifies this law under the
general police power, stating that the shipment of un-processed recyclables out of the
state causes littering of the highways, as well as endangers highway travelers because
the loads are generally uncovered and unstable. How might this pose a constitutional
problem with respect to the dormant commerce clause?

8. In general, in the absence of Congressional action, the states are free to regulate (under their
general police power reserved by the 10th amendment) those aspects of interstate commerce that
are of such a local nature as to require different treatment from state to state, but not those which

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required uniform national treatment (which only Congress can provide). Cooley. However, the
modern courts also look to the extent of the burden that an otherwise valid exercise of police
power would put on interstate commerce. Thus, the modern approach is basically to 1) determine
if the state law is a substantial burden on interstate commerce; 2) determine the state’s interest
in the law; 3) 3. determine the federal interest in preventing the burden and protecting interstate
commerce with respect to the activity; and 4) balance the state and federal interests. Here, the
recycling law appears to put a burden on interstate commerce, because it requires an extra
processing step to be performed in-state, where it may be more efficient to ship the recyclables out
of state for processing. This may result in increased cost. The state’s interest in the law is
purported to be one of health, safety and welfare. However, since the regulations appear to
discriminate against out-of-state processors, this would trigger a less deferential review of the
purpose and means of the regulation, similar to that in Southern Pacific v. Arizona and Dean
Milk. In both of these cases, the Supreme Court found that the safety improvement brought by
the particular local regulation was small at best, meaning that although there may have been a
“rational relationship” between the regulation and the legitimate state interest in promoting
health and safety, it was shaky. In such a case, the balancing of the state and federal interests
must go in favor of the federal interest in protecting interstate commerce, particularly if there are
“less burdensome alternatives” available to effectuate the same health and safety ends. Dean
Milk. Here, the legitimate state interest in reducing litter may be accomplished by the “less
burdensome” means of requiring a particular type of shipping container. Also, in the absence of
statistics to the contrary, the safety interest of protecting other drivers on the highway appears to
bear no rational relation to recycling. Thus, this statute is likely to be unconstitutional as being
an undue burden on interstate commerce.

9. Suppose that California passed legislation banning all private citizens from owning
handguns and requiring that all citizens turn their handguns into local law enforcement
authorities for destruction. If a private citizen brought an action to the Supreme Court
claiming that it was a violation the 2nd amendment right to keep and bear arms, how
might the Supreme Court analyze the case?

9. Clearly, the Bill of Rights does not directly apply to the states. Barron. Unless the specific
right is incorporated into the 14th amendment under the “due process” clause, it is not made
applicable to the states, because the 14th amendment does not create additional rights that were
not already “privileges” of citizens of the United States. Slaugherhouse Cases. In order to
determine whether a specific guarantee of the bill of rights is incorporated by the 14th
amendment, the modern court performs “selective incorporation” of “fundamental” rights.
Whether a right is “fundamental” for purposes of procedural due process is based on whether
that right is of “the very essence of a scheme of ordered liberty.” Palko. In applying this standard,
the court looks to the bill of rights to determine if a particular “fundamental” right is implicated
by this case, and if so, it becomes incorporated into the 14th amendment along with all of its
relevant federal jurisdiction “baggage.” Duncan. So the issue is whether the right to keep and
bear arms, specifically handguns, is “fundamental” in the concept of “ordered liberty.”
Historically, the private ownership of handguns has been instrumental in preserving civilized
order. Handguns have been a equalizing force between law-abiding citizens and criminals. The

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law enforcement system relies in part on the deterrence caused by a criminal knowing that a
potential victim might be armed in his own home. Thus, ownership of handguns is at “the very
essence of a scheme of ordered liberty.”

10. Suppose the state of Tennessee were to enact legislation prohibiting the manufacture
and sale of tobacco. Assume that there are several cigarette manufacturers in Tennessee,
as well as tobacco growers. Is there a compensable taking with regard to the tobacco
growers? With regard to the cigarette manufacturers?

10. This question implicates the 14th amendment’s due process clause, which has been held to
provide for “just compensation” for a governmental taking for public use, although that specific
language is absent. There are two ways that this could be implied by the 14th amendment: 1) the
14th amendment incorporates 5th amendment’s “just compensation” clause (procedural due
process), or 2) “just compensation” is a “fundamental” right of liberty and thus springs out of
the 14th amendment itself. Here, there is not a complete “physical taking” of the tobacco or
cigarettes themselves. However, a taking does not have to be a complete “physical” taking; while
property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a
taking. Pennsylvania Coal. Since the value of a crop of tobacco depends on the ability to sell it for
cigarettes, this is a possible reduction in value of the tobacco farms. However, it is not destroy
profitable use of the land for other farming purposes. Thus, it is not a denial of “all economically
viable use” of the land, which would be a per se taking under Lucas. As for the current stock of
cigarettes on hand by the manufacturer, they would be diminished in value slightly because they
would have to be shipped out of state. However, this is probably not a substantial enough
reduction to make the sale of cigarettes outside of the state “commercially impracticable” under
Pennsylvania Coal. Also, the cases tend to indicate that reduction in value of land is protected,
but do not mention property (such as cigarettes). Thus, there is probably not a compensable
taking with regard to either manufacture or sale.

11. Suppose that a San Diego passes a construction regulation that requires an exaction
of all developers who construct new housing in Del Mar. Specifically, the developer
must pay $1,500 per house for local schools, and also donate “free” labor and materials
to build low-cost housing in East San Diego. The local city council states that the
purpose behind the exaction is 1) to provide adequate new schooling for the children
who will live in the new housing, in order to prevent the overcrowding of existing
schools which results in poor education, and 2) to prevent the deterioration of the
communities of East San Diego due to abandonment by a stable population. Will these
provisions pass constitutional muster under Dolan?

11. Under Dolan, to obtain an exaction from a private business, a city must show that there is a
an “essential nexus” between the exaction and a “legitimate state interest”, and the exaction
must bear a “rough proportionality” to the interest. Although Dolan specifically dealt with
exactions of land, it is still persuasive in this case where we are dealing with exactions of money.
We will assume that the need for schools is a “legitimate state interest” by accepting the findings
of the council as to the adverse affects of school overcrowding. Here, there is a nexus between the

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construction of new houses and the need for new schools. Also, the amount of the exaction,
$1,500/home, appears to bear a rough proportion to the need for schools. With regard to the
low-cost housing, we can again assume that there is a “legitimate state interest” by accepting the
councils findings regarding the need for a stable population. However, the nexus appears to be
very weak here. Specifically, there appears to be no relationship between housing in Del Mar and
housing in East San Diego. Thus, the absence of an “essential nexus” precludes this portion of
the exaction.

12. Assume that the state of Arizona passes an abortion regulation statute that has three
main facets: 1) an requirement that the mother wait 72 hours after initial consultation
with a doctor to have a discretionary (non-emergency) abortion performed, 2) that the
mother be required to watch a video entitled “Safe Alternatives to Abortion” which
contains some graphic scenes of aborted fetuses, and 3) a complete ban on all
post-viability abortions that are not “medically necessary.” Are each of the provisions of
this statute constitutional?

12. Although the landmark case of Roe v. Wade held that a woman’s right to choose to terminate
her pregnancy was “fundamental,” triggering “strict scrutiny” of the regulation of abortion
before viability, the Supreme Court has since abandoned the fundamental/strict scrutiny
approach of Roe and substituted an “undue burden” standard in it’s place. Casey. The present
state of the right to an abortion, as stated in Casey, is that 1) a woman has a constitutional right
to seek abortion before viability without undue interference from the state; 2) the state has the
power to restrict, and even proscribe non-life threatening abortions after viability; and 3) the
state has legitimate interests in the health of the mother and the life of the fetus from conception.
According to Casey, an undue burden exists, and therefore a provision of the law is invalid, if its
purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion
before the fetus attains viability.” This is a fairly high standard, given that a 24 hour waiting
period was found to be burdensome, but not unduly burdensome. Implicitly the right to seek an
abortion before viability is now something less than “fundamental,” but still requiring special
constitutional protection. With regard to the 72 hour waiting period, it is clearly more
burdensome than the 24 hour waiting period in Casey. However, the rationale behind Casey’s
upholding that provision, namely that the woman would only be required to make two trips to
the doctor, seems to apply here. The absolute time between initial consultation and performance
of the procedure does not appear to be significant. Thus, it will probably be sustained. With
regard to the mandatory viewing of a graphic video, Casey held that an informed consent
requirement, which required mothers to be advised of the alternatives to abortion, was
constitutional. However, the information provided to the mother in Casey was not as graphic as
that required by this statute. As Justice Stevens stated in his concurrence, there may be an
undue burden when the state attempts to “wear down” the resistance of the mother in order to
further its interest in preserving the life of the child. Thus, this provision is probably not
constitutional. As to the complete ban on non-”medically necessary” abortions after viability,
even Roe conceded that the state interest was compelling enough to proscribe discretionary
abortions after viability. Although the meaning of “medically necessary” is unclear, it is

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probably broader than “non-life threatening,” and thus not an undue burden on a woman’s right
to seek an abortion.

13. Suppose San Diego passed a law forbidding co-habitation of non-related adults out
of marriage. The city states that the purpose behind the regulation is to reduce the
number of illegitimate children who are born, thus reducing the heavy burden on the
state when the couples break up and can no longer support the child. What
issues/problems does this pose and how might the Supreme Court resolve them?

13. In Moore v. East Cleveland, the Supreme Court held that a city can not pass zoning laws
forbidding “extended” family members from living together. The Court applied a “more than
deferential review,” indicating that the right of distant-related persons to live together was not
“fundamental” and so did not trigger “strict scrutiny.” Here, the co-habitating couple is even
less related than those in Moore. However, one can analogize to the reasoning in Eisenstadt,
which extended the right of contraception to non-married couples. In Eisenstadt, the Court
stated that there was no logical distinction between married and non-married couples when it
came to birth control. Thus, the same reasoning could apply here - there is no logical distinction
between distant-relations and un-married cohabitating couples when it comes to the right choose
who to live with. The resulting right would probably not be “fundamental,” (not “implicit in the
concept of ordered liberty”) and would probably be even less important than that of Moore.
However, it would still probably trigger more than a “rational relationship” review. Here, the
city’s reasoning may not even pass the rational relationship review because whether unmarried
couples physically reside together or not does not have any logical affect on pregnancy rates. It is
well known that people who live apart often become pregnant. Thus, the law is likely to be

14. Assume that the divorce rate for couples in California is 50%. The state has found
that divorces are a heavy burden on the judicial system, as well as the economy because
they lead to population instability. In an effort to reduce the divorce rate, California
passes a law that requires couples seeking a marriage license to take a 2-hour, written
personality compatibility test. The test would rank each person in several different
areas of personality (shy vs. outgoing, loud vs. quiet, etc.). The individual results would
be provided to the couple, along with a statistical comparison of their answers. The test
will be used for informational purposes to the couple only, not to deny a marriage
license. The state hopes that this practice will bring incompatibility to the attention of
potential married couples, and cause them to reconsider marriage if the test indicates
incompatibility. What constitutional issues does this raise, and how might the Supreme
Court resolve them?

14. In Zablocki, the Court held that a state may not pass a law which “directly and
substantially” interferes with the “fundamental” right to marry in the absence of a “sufficiently
important” state interest. Although they found the right to marry was “fundamental,” the Court
did not use a “strict scrutiny” review, but rather a “critical examination” review, which is
something less than strict scrutiny. “Critical examination” means that the law cannot be upheld

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unless it is supported by sufficiently important state interests and is closely tailored to effectuate
only those interests. Here the state interest in preventing divorce appears to be legitimate, and
sufficiently important. Thus, one key issue is whether the test “directly and substantially”
interferes with the right to marry. Since the results of the test are used only for informational
purposes of the couple, and not for denial of a marriage certificate, it probably does not
substantially interfere with the right to marry. (Similar to the information provided to a woman
seeking an abortion in Casey, which was found not to be “unduly burdensome.”) However, the
test takes two hours to complete, and so might be seen to deter some people from getting married
who might otherwise be compatible and never divorce. If it is found to be a substantial
interference, the test requirement must be found to be closely tailored to effectuate only the
state’s interest in preventing divorce. If the state had statistics to show the cause-effect
relationship between divorce and test results, it would have a good argument that the test was
closely tailored. However, it seems intuitive that personality compatibility is only one small
factor in the success of a marriage. Thus, the regulation seems to be underinclusive. Also, if the
test would deter people from getting married who would otherwise have a successful marriage, it
would be overinclusive. Thus, unless the state can show a valid statistical correlation between
test results and divorce rate, the means-end fit is probably not close enough to pass the “critical
examination” level of review.

15. Hawaii has a statute that bans same sex marriages. The state’s justification is that to
allow same sex marriages would have a harmful affect on tourism because families
would be deterred from vacationing in a “refuge for homosexuals.” What constitutional
problems does this implicate?

15. Although the right to marry was found to be “fundamental” in Zablocki, the Court in
Bowers v. Hardwick stated that there is no constitutionally protected fundamental right of
homosexual sodomy. The Court in Bowers reasoned that homosexuality has been banned and
discouraged for so long that it can not be said to be “implicit in the concept of ordered liberty”
(Palko) or “deeply rooted in the Nation’s history and tradition.” (Moore). Bowers marked an
explicit reluctance by the court to recognize new “fundamental” rights that are not found in the
Const. because of the “slippery slope” which might lead to finding a fundamental right to
adultery, incest, etc. Here, the slippery slope argument might lead to bigamy. If the same
reasoning is applied, the Court would find that there was not a “fundamental” right to
homosexual marriage, and the statute would stand. However, there is a chance that the Court
might frame the issue more broadly, as a privacy right to make intimate personal decisions
without undue interference from the government (similar to Blackmun’s dissent in Bowers).
Phrased in this manner, the right might be found to be fundamental, triggering something close
to “strict scrutiny” (like in Zablocki). In that event, the Court would almost certainly strike
down the statute as being tailored to broadly. For instance, even if a relationship between
tourism and the ban on homosexual marriage can be shown, it is likely that it will actually
increase tourism among the gay population.

16. The fire department of a large metropolitan city is considering instituting some new
uniform regulations. One of these new regulations is that no firefighter, male or female,

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shall be allowed to wear an earring of any kind while on duty. The fire department
states that wearing of earrings while on duty interferes with the readiness of the fire
department because it prevents rapid donning of fire-fighting headgear. Also, the fire
department is considering another regulation that off-duty female firefighters may wear
only a “tasteful stud” earring, and that off-duty male firefighters may not wear any
earrings whatsoever. The fire department reasons that this latter requirement will
promote esprit de corps, as well as promote a professional image to the public. What
constitutional issues do these regulations raise?

16. The right of personal appearance by police officers was addressed in Kelley v. Johnson, where
the court held that police officers do not have a fundamental right to wear their hair long. The
court reasoned that although the government might not have the right to regulate the personal
appearance of private citizens, an exception for police officers existed. As such, the regulations of
a police officer’s personal appearance need only meet the “mere rationality” standard. A fire
fighter is probably indistinguishable from a police officer in this regard. Both professions involve
public service, high level of training, danger, and unique public trust. As such, the arguments of
Kelley appear to be applicable here. With regard to the wearing of earrings when on-duty, the
department’s interest in safety is clearly legitimate. Banning earrings on-duty is a rational way
to accomplish safety because of the delay that might ensue if the earring gets stuck on the
headgear, or the burn that might occur in a fire if the earring becomes too hot. With regard to the
off-duty regulation of earrings, it is harder to justify the rational relationship. For instance, it is
unlikely that a fire fighter must keep a certain appearance to be more visible to the public (as was
the case in Kelley). Also, it is doubtful that the public image of fire fighters relies much on
whether they wear an earring off-duty. However, it the department were to introduce credible
evidence to the contrary, it is likely that the Court would simply defer to their findings, and
uphold the regulation.

1. A local school enacts a “tracking” policy by which students that test above a certain
score on a standardized test, or maintain their GPA above a predetermined level, are
allowed to take advanced college prep classes, whereas all other students are required
to take remedial level courses. Does this policy pose a procedural due process problem
for a student who does not otherwise qualify for the advanced classes, yet still wishes to
take them?

1. Education, like welfare benefits in Kelly, is not a mere charity but a means to promote the
general welfare. It affects future education, and ultimately the ability to work. Thus, there would
be a “liberty” or “property” interest in education. Assuming that the state constitution has been
interpreted to provide a “fundamental” right of education, there would be a “legitimate claim of
entitlement” to education. Roth. Thus, this interest in education is strong enough to trigger
procedural due process under the 14th amendment. However, here the state is not denying
education to the non-qualifying children, it is merely denying them an advanced level of
education. So there would probably not be a procedural due process problem since there is no real
“taking” here. As a side note, there may be an equal protection problem if the program can be
shown to discriminate based on a forbidden classification.

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2. Andrew is arrested for shoplifting. He is not charged, but instead is released, and his
name is put on a police blotter list as being arrested for shoplifting. The list is published
in the local newspaper, and Andrew, who is a respected businessman, is greatly
embarrased. He maintains that he is innocent. Andrew brings a defamation action
against the city for having his name published as being a shoplifter. One of the grounds
of the suit is that publishing his name as a shoplifter, without conducting an evidentiary
hearing first, violated his procedural due process rights under the 14th amendment.
What is his likelihood of success on this count?

2. Negligible. Although the court in Roth indicated that damage to reputation may be a sufficient
infringment on a person’s “liberty” interest to trigger procedural due process protection, the
court has since stepped away from that view in Paul v. Davis. Thus, the damage to Andrew’s
reputation does not give rise to a cause of action for violation of due process.

3. What must the court consider in a procedural due process case when determining
what type of hearing is required before the state may “take” a person’s liberty or

3. According to the court in Matthews, “due process is flexible and calls for such procedural
protections as the particular situation demands.” Thus, a balancing approach is necessary. The
court must balance 1) the private interest that will be affected by the official action, 2) the risk
of an erroneous deprivation of such interest throught the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards, and 3) the government’s interest
including the function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirements would entail.

4. Hollandia Dairy is a local dairy that is dedicated to the production of local milk in an
environmentally safe and friendly manner. The dairy uses only cardboard milk cartons
to distribute its milk. The state passes a law requiring all milk manufacturers to package
the milk in plastic containers. As a justification for this law, the state claims the purpose
is to “promote the safety and integrity of the milk supply,” and “to conserve natural
resources.” Hollandia Dairy brings an equal protection action, claiming that the law
arbitrarily discriminates against manufacturers who choose to use paper product
cartons. What is their likelihood of success?

4. This is a case of equal protection with respect to economic issues. In this arena, the court
normally gives wide deference to the purpose and findings of the legislature, subjecting the law
to a mere rationality standard. Railway Express. Here, the avowed purposes stated by the state
appear to be legitimate. The state, under its general police power, has an interest in maintaining
the health of the food products produced there, as well as preserving natural resources. Use of
plastic (hermetically sealed) cartons may result in better preservation of the milk. The banning of
paper product cartons would tend to preserve trees. Thus, there appears to be a rational
relationship between the classification (paper vs. plastic) and the legitimate state interest. As a

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side note, there may be a privileges and immunities problem if this discriminates against out of
state manufacturers.

5. Suppose the state of California were to pass a law requiring all government
employees having greater than 28% body fat (for males) or 32% body fat (for females)
enroll in a state-sponsored physical fitness program (at no cost). If the overweight
employees did not come down below the maximum body fat percentage in one year,
they would be laid off. If they are medically diagnosed as “obese” (a medical
condition), then they will be offered limited medical treatment for obesity for a period
of one year after being laid off. The state gives as the purpose for this law “preserving
the dwindling funds available for medical insurance for state employees.” Comment on
the constitutionality of this law with regard to equal protection.

5. This law is one of social/economic welfare. An important threshold issue is whether the
overweight people are members of a suspect class, because that will determine the level of
scrutiny applied. According to the Carolene Products footnote, a suspect class may be comprised
of a “discrete and insular minority” who has a history of past discrimination, is subject to
frequent stereotyping, and share an immutable characteristic. Here, the overweight people do
have a history of discrimination and are subject to frequent stereotyping. However, they are
probably not an under-represented minority that keep to themselves and are politically
disenfrancished. Also, the characteristic of being overweight is not strictly immutable. Thus,
they are not a suspect class. As such, the standard of scrutiny is mere rationality. The state has a
legitimate interest in preserving the medical insurance fund, and is reason to believe that
overweight persons are a disproportionate drain on that fund. Thus, the classification is
rationally related to the legitimate state interest. Although the cut-off for weight may seem
somewhat arbitrary, and that other persons may have serious medical conditions, there is no
requirement that all of the evils be regulated or none at all. Railway Express.

6. The selective service act, as it now stands, requires all males between the ages of 18
and 27 to register for the draft in case of national emergency. It does not require females
to register. What are the arguments for and against the constitutionality of the Act?

6. Discrimination based on sex has been held to trigger an intermediate level of scrutiny. Hogan.
This is true whether the discrimination is against males or females. Id. For intermediate level
scrutiny of gender discrimination, the classification must be “substantially related” to the
acheivement of an “important governmental interest.” Craig. The first challenge to this law
failed because the court held that the important governmental purpose was to prepare the nation
for combat, and since females were not allowed in combat roles at the time, the classification was
substantially related to the important purpose. Goldberg. However, since 1980, when Goldberg
was decided, women’s roles in combat have increased dramatically. Women are now able to fly
combat planes, drive combat vehicles, sail on combatant ships, and perform limited ground
support roles. Thus, the classification would seem to bear a less substantial relation to the
interest in raising combat troops because men and women are more similarly situated with
respect to military service today.

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7. Suppose New York passed a law allowing the state to prosecute a pregnant woman
for smoking cocaine based on the damage to her unborn child. What constitutional
issues of equal protection are presented here, and how would the court likely resolve

7. The court has held that gender based discrimination is subject to an intermediate level of
review where the classification must be “substantially related” to the acheivement of an
“important governmental interest.” Craig. However, the court has also stated that a
classification that is not based on gender, as such, is subject only to a lesser standard of review.
Aiello. In Aiello, the court stated that a classification such as this was not invidious
discrimination against females because the classification was between “pregnant females” and
“non-pregnant persons.” Here, the classification could be characterized as “pregnant female
crack smokers” and “non-crack smokers.” Since the latter category comprises an equal number of
men as women, the classification is not one of gender, per se. Thus, a mere rationality standard

8. Assume that the city of San Diego is considering implementing a plan in which black
children at certain elementary schools will be paired with black teachers. The program
is intended to provide the students with positive role models from their own cultural
background, and improve their interest in school. What constitutional problems does
this program raise?

8. The court has held in Brown that separation/segregation in state schools is inherently
unequal. The court reasoned that separation of races solely because of their race tends to
stigmatize them as being inferior or needing special treatment. However, the reasoning of Brown
has been criticized as being based on outdated and inaccurate social science data. It is unclear
whether a segregation program would have the same effect today. Also, one may attempt to
justify it as a remedy for past discrimination if administered properly. In any event, the present
court is unlikely to look favorably on such a situation given the long history of unfavorable
segregation in the country.

9. Suppose California were to pass a law requiring all public school teachers to become
U.S. citizens after teaching for 7 years. The state defines the purpose of the law as
“promoting fundamental American democratic values in children.” What constitutional
issues does this law raise?

9. This law would raise an issue of equal protection based on the classification of teachers as
citizens or non-citizens, and discriminating against the latter. Under Graham, classifications
based on alienage normally trigger strict scrutiny. However, Dougall and Foley carve out a
limited exception for positions that carry out a “governmental function” or a “political
function.” If teachers are classified as carrying out a “governmental function”, as is implied by
the state’s avowed purpose for the law, then the law would only receive rational basis review. The
state has a strong interest in educating its children in democracy. Requiring teachers to be

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citizens (once they have met residence requirements) seems to be rationally related to that end
because a citizen teacher is likely to have a basic understanding of the democrating process, and
agree with it. However, if law were to have to withstand strict scrutiny, it would certainly fail
because it would be too underinclusive, and too overinclusive. That is to say that many citizen
teachers are ignorant as to civics, and many foreign teachers are able to teach the subject well.
Thus, it would not be narrowly tailored enough, even if the state interest in teaching democracy
was found to be compelling.

10. Suppose the federal government wished to enact a statute denying federal welfare
benefits (AFDC aid to families with dependent children) to families with illegitimate
children. Would this be constitutionally permissible?

10. No. Although the 5th amendment contains no explicit equal protection clause applicable to
the federal government, the court has held that there is an implied clause identical to that of the
14th amendment. Also, although the federal government might have more leeway with respect to
discriminating against alien children (due to the INS power), it does not have the same power
with respect to illegitimate children. The court has held that a standard of intermediate scrunity
applies in reviewing equal protection challenges to law discriminating on the basis of legitimacy.
Clark. Here, the federal interest may be to preserve the AFDC budget, to promote marriage, to
deter teen pregnancy, and to equalize benefits across state borders. None of these purposes seems
to rise to the level of “important governmental objective.” Even if they do, the classification is
not “substantially related” to the objectives. Parents probably do not take AFDC benefits into
account when getting pregnant out of wedlock. Also, divorces are not prevented due to the
absence of federal aid.

11. A state welfare benefit calculation law provides that persons receiving federal aid
(such as AFDC) are granted less “need” for purposes of determining the amount of
their monthly benefit check. The state purpose in this law is to conserve scarce welfare
resources at the state level, since the families in question are already receiving federal
help. Does this statute pose a constitutional problem if it can be shown that 87% of all
AFDC recipients are minorites?

11. For purposes of equal protection analysis, the constitution only provides protection against
purposeful discrimination. Washington v. Davis. Furthermore, naked statistics, without more
are insufficient to show purposeful discrimination, despite the disparate impact. Id. This law is
facially neutral, and there are no facts supporting a claim of inequitable administration. The only
claim is disparate impact. However, 87% minority composition of AFDC recipients appears to be
too ambiguous an indicator of purposeful discrimination. If there were statements in the
legislative history indicating that the law was based on a discriminatory motive, that would
suffice to show purposeful discrimination. Arlington Heights. However, a mere knowledge that
the statute might have a discriminatory impact as a side effect is not sufficient. Feeney. The equal
protection clause “guarantees equal laws, not equal results.” Id.

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12. Suppose that the local district court finds that the city of San Diego has redefined
school district lines such that almost no white students are included in the school
attendance zones for one particular inner city school. What reasoning must the court
follow in order to take remedial action? What remedial action would be proper? May
the court include suburban schools from the Poway school district (different than San
Diego City school district)? When would the remedies end?

12. The court, in order to create remedies, must find that there is de jure discrimination, and
then must eliminate it “root and branch”. Swann. The court may find evidence of this de jure
(purposeful) discrimination by the way in which the zone lines were gerrymandered to exclude
white students, if they concluded that there could be no other explaination for the zoning change,
which there probably isn’t. Keyes. Furthermore, if de jure discrimination is found within one
particular area of the district, here the one school, the court may presume that it exists elsewhere
in the district, and take remedial action district-wide. Id. The court may use busing, pairing of
schools, and realigning school attendance zones to even out the student race ratio. Swann.
However, the court may not force the state to spend money on a “magnet school” in the inner
city in order to attract white students from the suburbs unless there is a finding that the de jure
discrimination caused the “white flight” from the area. Jenkins. Also, the court may not force
integration and busing of other students from outlying areas in the Poway school district
because it is a different school district, and no de jure discrimination has been found. Milliken.
The remedies would continue to be court supervised until the San Diego City school district
could show that it has complied with the operation of a “unitary” school system for a reasonable
time, and provides evidence of a good faith effort to continue in the future. Dowell. Or, the court
could withdraw from one area of supervision if it is satisfactory, and continue to supervise in
other areas, even if the school district is not “unitary” yet. Freeman.

13. Suppose that the federal government instituted an affirmative action program for
admissions to the FBI academy. Under this program, 10% of the students admitted each
year were required to be “disadvantaged.” For the purposes of admissions, a white
student could prove that he was disadvantaged by providing evidence of his
background. However, minority races were presumed (rebuttably) to be disadvantaged.
Is this program constitutional?

13. No. The supreme court has held that the proper standard to apply to race based
discrimination, regardless of which race it discriminates against, is strict scrutiny. Croson.
Furthermore, the court has held that the equal protection clause of the 14th amendment is
implied into and coterminous with the 5th amendement. Adarand. Here, the program includes a
strict quota of 10%. Such a quota system in education admissions was held to be invalid in
Bakke. It has also been held to be unconstitutional in a commercial construction setting in
Croson. Furthermore, the federal government would have to prove actual past discrimination by
the FBI against minorities by means of specific proof in order to implement any remdial
measures. Id. Thus, the program as stated here is clearly unconstitutional. Perhaps the
government could consider race as one ingredient of the admission program, in order to promote
diversity in the FBI. Bakke.

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14. Suppose that the San Diego school board found that its budget was dwindling, and
it was unable to keep a high quality level of education in every school, but it was still
able to keep a minimum level of education in every school. As a measure intended to
subsidize schools, suppose the city plans to institute a plan in which certain schools are
“tuition based” schools. It would cost the parents money to send their children to these
public schools, which would, as a result, have better facilities, and higher skill level
teachers. If the parents are unable or unwilling to pay the tuition, they may still attend
their neighborhood school as normal. Comment on the constitutionality of this plan.

14. The court has held that the inequitable distribution of a fundamental right which is either
explicit or implicit in the constitution violates equal protection, regardless of which class of
persons it burdens. Rodriguez. However, it has also found that education, or at least the right to
a better-than-minimal education, is not a constitutionally guaranteed fundamental right. Id.
Furthermore, it has found that wealth, and thus poverty, is not a suspect class, and therefore
allowed a state to fund school districts with local property taxes. Id. Here, the situation is
similar, except that the subsidization comes only from the parents of the students, rather than
each homeowner in the school district. Also, since the students whose parents can not (or will
not) pay the tuition will still receive at least a basic level of education, there is no total
deprivation of education (which may trigger a more rigorous level of scrutiny - Plyler). There is
a permissible government objective here - providing a better level of education for its citizens.
And the means chosen, i.e. tuition, bear a rational relationship to the accomplishment of that
legitimate objective. As such, it should easily pass muster under Rodriguez.

15. In terms of case law, constitutional provisions, and good policy, should education be
found to be a “fundamental right” guaranteed by the federal constitution?

15. There are several persuasive arguments in favor of finding a fundamental right to education.
First, as was stated in Plyler v. Doe, education is not just a privilege. By depriving a student of
education, a law would foreclose any means by which the child may elevate himself into a
functioning member of society. Also, there is a fundamental right to educate your children as
you see fit - Society of Sisters. So it would not be a great leap to find that education itself is a
fundamental right. Furthermore, in constitutional terms, the 1st amendment right to free speech
is meaningless if the population is illiterate. Also, an educated populace is better able to exercise
the right to vote, and equal access to voting has been found to be a fundamental right. Harper.
Moreover, the government itself compels school attendance, which is evidence of its view of the
fundamental nature of education. Lastly, most states, and those whose constitutions were drafted
by the drafters of the federal constitution, have found their constitutions to provide a
fundamental right of education.

16. Suppose California were to pass a law denying free public education to children
who come into the state solely for the purpose of education, and who therefore live
apart from their parents. However, the child, once he reaches age 18, may apply for

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residency status after living in the state 1 year, and then be able to qualify for the free
(or at least subsidized) education. Comment on the constitutionality of this law.

16. Again, the supreme court has held that education is not a fundamental right. Rodriguez.
These students presumably have access to free education where their parents live, and are
moving to California only for the purpose of attending California schools. However, this law also
poses a problem with relation to the fundamental right to travel which was found to exist in
Shapiro. There, the court found that a state may not condition the reception of welfare benefits on
being a state resident for >1 year because it impermissibly burdened the fundamental right of
travel. Such a waiting period was deemed to be a “penalty” on the right of travel in Maricopa.
However, since education is not as basic a need as welfare or medical benefits, Shapiro and
Maricopa can be distinguished on their facts. The loss of free education in a foreign state for a
certain period, especially when it is available at home, is not a strong “penalty” which has been
defined as a denial of “vital government benefits and privileges.” Maricopa. Also, the state has a
strong interest in preventing itself from becoming the unreimbursed supporter of other state’s
children. Thus, the right to a free education here is only postponed, and not eliminated so it
probably passes constitutional muster, similar to the 1 year waiting period for use of the courts
to divorce an out of state resident in Sosna.

17. Suppose that the automobile union threatened to go on strike nationwide to stop
production of parts that are used in cars, and coincidentally used in combat vehicles.
Given the present situation in Bosnia, and the President’s interest in maintaining a
strong military presence abroad, could a seizure of the auto parts manufacturing by the
President (without prior consent of Congress) in order to avert the strike be
constitutionally permissible?

17. No. There is a separation of powers problem. The president’s domestic powers are limited.
Art II, § 1 states, “The executive power shall be vested in a President.” Thus, most of his power
is implied, however it must be “executive” (carrying out laws) in nature, rather than
“legislative” or “judical.” Here, the action seems to be more than executive in nature, and very
legislative - a function which. In the Steel Seizure Case, the supreme court held that the
President may not unilaterally order steel industry plants to be seized (without the consent of
Congress) and put under gov’t control in order to prevent a strike. As in that case, the present
seizure would not be justified under “commander in chief” power because the theater of war
connection is too remote. Justice Jackson has stated that where the president is acting in
opposition to Congress, his powers are at their narrowest, supported only by his expressly
granted constitutional powers, and then still limited by any overlap Congress may have. There is
an argument that a long-standing Presidential custom or habit of action over time in the face of
Congressional consent leads to a “gloss” on the enumerated or implied powers of the president,
unless Congress takes action to demonstrate their disagreement. However, that would be flatly
rejected here in the face of the Steel Seizure Case.

18. Suppose that American civilians in Bosnia are suddenly taken hostage by an
overrun of the U.S. Embassy. Would the president have the power to send in a covert

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rescue force without consultation with even the leaders of Congress? What of the War
Powers Resolution?

18. Probably. Although Congress has the exclusive ability to declare war, the President also has
brad foreign powers. - Curtiss Wright. The President is in the best position to make decisions
on rescue missions since he is the sole embodiment of U.S. foreign power. Id. Historically, the
President has acted frequently in this manner in the presence of initial silence by Congress,
usually justifying the action on his ability to protect the U.S. from foreign attack. The Prize
Cases. Also, the War Powers Resolution has explicitly delegated the President the power to
defend against hostile attack on U.S. forces, territories or possessions. It is unclear whether this
is such an attack because the embassy is not technically a U.S. territory or possession. Perhaps
the presence of U.S. Marines and government officers (Ambassadors) is sufficient. However, the
War Powers Resolution requires that the President consult with Congress before committing
troops to hostilities, if possible. Here, it would probably be possible to do so, since the attack has
already happened. However, there are several constitutional problems with the War Powers
Resolution that bring its legitimacy into question. For example, §5(b)(2) requires the president
to withdraw troops within 60 days, unless Congress extends that period. This appears to be a
legislative veto (no presentment) of the sort shot down in Chadha. Similar problems are
presented by §5(c) which allows Congress to jointly pull any troops out of any hostile zone at
any time. Thus, it is unclear that if the President committed troops that Congress could take any
action to prevent it. In any event, it is unlikely that the War Powers resolution will be
successfully challeged because of lack of standing, and political question.

19. President Clinton is being sued for alleged sexual harrassment of an aide while he
was Governor of Arkansas. Does the President have a general immunity from civil
liability from this charge? What about a general “executive privilege” from being
subject to service of a subpeona duces tecum to produce any records concerning this

19. No. Although the Supreme Court has held that the president has an absolute immunity for
civil liability arising from within the outer boundaries of his official acts, (Nixon v. Fitzgerald),
this only applies to acts during his pendency as President. The source of the immunity is “rooted
in the constitutional tradition of separation of powers and supported by our history.” Id. This
event happened before he became President. However, even if it did occur during his Presidency,
it is arguable that the immunity would not apply because the alleged act would fall clearly
outside of the outer boundaries of his official acts. Clearly, a person who sexually harrasses
another does not do it pursuant to any official authority. However, there is the counter argument
that it would divert his attention away from more pressing national and international matters,
and thus should at least wait until he is out of office. Also, civil liability is not necessary to keep
the President honest because of other concerns such as impeachment, the press, re-election, and
personal reputation. As to the tapes, the court has held that the President has “executive
privilege” to refuse to disclose confidential information related to his official duties, but it is
outweighed by interest of justice in a criminal proceeding. - Nixon Tapes Case. Although this is
only a civil proceeding, the same reasoning seems to apply. Since the requested tapes do not

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contain national secrets, there is no reason to allow the privilege here (other than perhaps
attorney client privilege if it applies).

20. Suppose that a local Big Bear market has decided that based on the recent level of
criminal activity involving black gangs, including several shooting deaths on its
premises, it will no longer serve any black males under the age of 30, and will
furthermore press charges for trespassing if any black male under 30 enters the store. Is
this constitutional?

20. There appears to be blatant racial discrimination here, the kind which would certainly fail
constitutional muster if practiced by the state or federal government. However, there must be
some state action for the law to apply, because the constitution does not protect against private
discrimination. It has been held that a private citizen that performs a traditionally public
function is subject to constitutional regulation. Marsh. However, grocery stores are not really
public functions, even though they are open to the public. If the grocery store were leasing the
land from the government, or taking advantage of any other mutually beneficial government
services, then there would be state action under the nexus theory of Burton. However, there are
also no such facts related here. The best argument for state action is a broad reading of Shelley in
which the court held that using the power of the courts to enforce a discriminatory policy may be
viewed as state action. Here, the grocery store wishes to use the courts to enforce trespassing
violations. That may be sufficient to constitute state action. If that were the case, this policy
would certainly fall under strict scrutiny as being overbroad.

21. Suppose that the Congress passes a statute subsidizing basic prenatal care for
pregnant illegal immigrants. Jim, a federal taxpayer, brings an action in federal court
challenging this law, claiming that it violates the immigration and naturalization power
of Congress. He claims that he has proper standing as a taxpayer because this will result
in an increase in his taxes. Is he correct?

21. No. For a taxpayer to have standing on the basis of being a federal taxpayer, he must show
that the statute being challenged rests on the taxing and spending power, and that it violates
specific constitutional limitations on the taxing and spending power (rather than just a general
limitation on the constitutional power). Flast. The policy behind this judicially based (not
constitutionally limited) rule is that we don’t want a nation full of private attorneys general
clogging up the courts challenging each and every law. Here, the challenge rests on an exercise of
the spending power. However, it does not allege violation of a specific constitutional limitation
on that power. This case is similar to Frothingham where the court held that an alleged violation
of the 10th amendment was too general, too non-individualized, and too remote to satisfy the
standing requirements.

22. Suppose California were to provide for a state educational voucher system, whereby
the parents are provided with a voucher good for up to $5,000 per year per student. The
parent could take this voucher to any school of her choosing, and use it to pay part of
the tuition. If the parent chose public school, then the voucher would be unused. The

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private school receiving the voucher would exchange it for cash from the state
government. Assuming that 95% of the existing private schools in California are
parochial schools, does this law present any constitutional problems?

22. Probably not. In developing its establishment clause jurisprudence, the supreme court has
held that a convenient measurement of whether a law may violate the establishment clause is: 1.
must have a secular legislative purpose; 2. the primary effect must be neither to advance nor
inhibit religion; and 3. it must not foster excessive governmental entanglement with religion.
Lemon. Using these guidelines, the court has held that a state may provide tax exemptions for
school tuition, books and transportation as long as the exemption is available to the parents of
public school students as well. Mueller. It would be only a small step to extend that to vouchers.
The voucher here is given to parents directly. Even though parochial school parents may receive
a greater statistical benefit from the law, it is neutrally applicable because the child may still go
to public school for free. Also, it appears to be part of a larger educational scheme. The only
counter-argument is that the parochial school would be required to become very involved with
the government in the exchanging of the vouchers for cash. This may be viewed as excessive
entanglement. However, it is probably not more entanglement than is necessary for the tax
administration of a tax-exempt organization. It also does not provide any direct savings to
parochial schools, because they are not getting paid any more, the parent is just paying less.

23. A fundamental Muslim sect practices total separation from Western influences. As
such, they raise their children inside their tight community. The children are home
schooled for their entire education, until they are 16 years old. Suppose the state of
California, due to concern about recent poor performance by students on standardized
tests, were to pass a law prohibiting home-schooling. The law would allow all parents
to send their children either to public or private school, but forbid home schooling.
What are the constitutional implications of such a law?

23. Although a particular religious “belief” may not be outlawed, religious “conduct” inspired
by that belief is afforded less protection. The traditional test for determining whether a state may
burden free exercise of religion is that free exercise may only be burdened when justified by a
compelling state interest. Sherbert. For example, a state may not force ahmish children to attend
public schools because the state interest in child education, although compelling, would not be
significantly prevented by the less restrictive means of granting an exemption for the ahmish
children, given that they receive adequate schooling at home. Yoder. Thus, given the holding in
Yoder, this law would appear to be an unconstitutional burden on free exercise if an exemption
was not granted for adequate religious home schooling.

24. Practitioners of a religion called “Hedonism” believe in the central tenent “Eat,
drink, and be merry, for tommorow you may die.” As such, they live each day to the
utmost excess, engaging in drunken parties and celebrations. In a small town in Kansas,
the local population is generally outraged by their hedonistic behavior, and takes steps
to curtail it. First, the city passes a law forbidding public assembly after midnight and
before 4 am without a special permit. This law is meant to cut down on the late night

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behavior of the hedonites, although it also has the general effect of a curfew. Second,
they pass a law forbidding the playing of loud music after 10 pm without a special
permit. Comment on the constitutionality of these laws as applied here.

24. Under the modern test for free exercise, if religious practice goes against neutral and
generally applicable criminal prohibition, it has no protection - Employment Div. v. Smith.
Although Smith was decided in the context of a criminal prohibition, it is likely that it would be
applicable to the civil statutes passed here. However, when a city acts for the primary purpose of
preventing the exercise of a specific religion, the law will be subjected to the “most rigid
scrutiny” because it is by definition neither neutral nor generally applicable - Lukumi. Both of
these laws appear to be enacted with the purpose of preventing the exercise of a particular
religion. For instance, with respect to the curfew law, it probably has no effect on anyone except
the hedonites. Furthermore, it appears to burden the additional constitutional right of assembly,
and so would not fall within the allowable criminal prohibitions of Smith. With respect to the
loud music law, it may possibly pass constitutional muster, because there would be no
less-restrictive means available. That is to say that if an exemption for the hedonites is granted,
the law which is otherwise valid (and which is motivated by the compelling interest of
maintaining peace) would be almost totally defeated. Thus, even though purposefully enacted, it
may survive strict scrutiny. Note that these laws also present an equal protection problem.

25. John is the leader of a militant minority group, with a central tenent of bringing
equality through violence. The group has about 100 members locally. They plan a
demonstration for the local public park, where John advocates “stockpiling arms” for
eventual “armed conflict with the local police to get our rights back.” Several shouting
matches erupt. John is whisked away by the police. As he is taken away, Bill, a white
supremacist, shouts racial epithets against him. Bill is also arrested. John is charged
with violation of a statute that prohibits “advocacy of violence against law
enforcement.” John is charged with violation of a statute that prohibits “the use of racial
epithets against a minority race for the purpose of arousing anger in the addressee.”
Are either of these two ordinances constitutional as applied here?

25. No. Although the early standard for dangerous speech was whether it posed a “clear and
present danger” to the government (Schenk), the court has since settled on a more balanced test
whereby a state may not proscribe advocacy of violence for political reform unless that speech is
advocating imminent lawlessness, and is likely to produce such violence - Brandenburg. With
respect to John’s advocacy of violence, it appears to be a mere abstract teaching of the correctness
of violence, and is probably not likely to produce armed conflict. Id. This is evidenced by his
advocating “stockpiling” of weapons (they don’t already have them). As for the hate speech,
historically “fighting words” (likely to cause an average addressee to fight) have been in a
category outside of 1st amendment protection. Chaplinski. However, the court has recently
provided even more protection for “fighting words” in that they are not subject to
“content-based” or “viewpoint based” regulation. R.A.V.. A state may not ban only fighting
words that are directed as hate speech against a minority, because this allows one side of the
conflict to use hate speech, but not the other. Id. Thus, the ordinance which prohibits “the use of

Roger W. Martin                              21
                             Printed: 4/5/2012
racial epithets against a minority race for the purpose of arousing anger in the addressee” has
criminalized hate speech solely for its content. Unless the city can show that this ordinance is
part of a broader ban of all fighting words, it is likely to fall under strict scrutiny. The state
certainly has a compelling interest in preventing racial violence. However, the less restrictive
means available is to ban all fighting words, in order to put all parties on an equal footing.

Roger W. Martin                              22

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