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									Chapter 5

CONSTITUTIONAL LAW

Practice Test
1. Michigan’s Solid Waste Management Act (SWMA) generally prohibited Michigan counties from
   accepting for disposal solid waste that had been generated outside that county. Fort Gratiot operated
   a sanitary landfill in St. Clair County, Michigan. The county denied Fort Gratiot permission to bring
   in solid waste from out of state, and Fort Gratiot sued. This case involves the negative, or dormant,
   aspect of the Commerce Clause. What is the difference between that aspect and the positive aspect?
   What is the evil that the dormant aspect is designed to avoid? How would you rule in this case?
    The positive aspect of the Commerce Clause grants Congress the power to regulate interstate
    commerce. The negative, or dormant, aspect severely restricts the power of the states to do so: a state
    statute that discriminates against interstate commerce is invariably unconstitutional. The dormant
    aspect is designed to prevent the states from taxing goods and services produced in other states, and
    thus turning the nation into 50 competing sovereigns. In this case, the United States District Court
    and the Court of Appeals both found that Michigan’s statute did not violate the Commerce Clause,
    but the Supreme Court reversed, finding a violation of the dormant aspect. There was no valid reason
    to limit the amount of waste that a landfill operator could accept from outside the company (and thus
    from outside the state) while placing no limit on locally created waste. Fort Gratiot Landfill, Inc. v.
    Michigan Dept. of natural Resources, 504 U.S. 353 (1992).
3. Dairy farming in Massachusetts became more expensive than in other states. In order to help its dairy
   farmers, the state began taxing all milk sales in the state, whether the milk was produced in state or
   out of state. The money went into a fund that was then distributed among Massachusetts milk
   producers as a subsidy for their milk. Discuss.
    The milk tax violates the dormant, or negative, aspect of the Commerce Clause. West Lynn
    Creamery, Inc. v. Healy, 114 S. Ct. 2205, 1994 U.S. LEXIS 4638 (1994). The Supreme Court found
    that this was a tax on interstate commerce. Although the tax is applied on all milk sales, it is redis-
    tributed to local producers. It is effectively a tax only on out-of-state producers, a major interference
    with interstate commerce.
5. In the early 1970s, President Nixon became embroiled in the Watergate dispute. He was accused of
   covering up a criminal break-in at the national headquarters of the Democratic Party. Nixon denied
   any wrongdoing. A United States District Court judge ordered the president to produce tapes of
   conversations held in his office. Nixon knew that complying with the order would produce damaging
   evidence, probably destroying his presidency. He refused, claiming executive privilege. The case
   went to the Supreme Court. Nixon strongly implied that even if the Supreme Court ordered him to
   produce the tapes, he would refuse. What major constitutional issue did this raise?
    The constitutional issue is judicial review. Since Marbury v. Madison, 5 U.S. 137 (1803), federal
    courts have insisted that they have the power to review acts of the other two branches. The Supreme
    Court ruled that while there was a limited executive privilege, it did not include the right to withhold
    evidence in a criminal investigation. When the Supreme Court did in fact order Nixon to produce the
    tapes, he hesitated . . . but obeyed. The tapes he produced destroyed his credibility and his political
    base, and he became the first president to resign his office. But the principle of judicial review was
    affirmed. Alternatively, students might note that, regardless of what power the president possesses
    under the Constitution as Commander and Chief of the armed forces (and as circumscribed by the
    War Powers Resolution), it is politically intelligent to obtain the public approval o Congress when
    sending our citizens into armed conflict.
7. You begin work at Everhappy Corp. at the beginning of November. On your second day at work, you
   wear a political button on your overcoat, supporting your choice for governor in the upcoming
   election. Your boss glances at it and says, “Get that stupid thing out of this office or you’re history,
   chump.” You protest that his statement (a) violates your constitutional rights and (b) uses a boring
   cliché. Are you right?
    Although wearing a button is expressive, i.e., speech, conduct, there is no constitutional violation.
    The First Amendment pertains to government restrictions on speech. Therefore, the First
    Amendment protects you only from the government, not from a private party such as a corporation.
9. A federal statute prohibits the broadcasting of lottery advertisements, except by stations that
   broadcast in states permitting lotteries. The purpose of the statute is to support efforts of states that
   outlaw lotteries. Edge Broadcasting operated a radio station in North Carolina (a nonlottery state) but
   broadcast primarily in Virginia (a lottery state). Edge wanted to advertise Virginia’s lottery but was
   barred by the statute. Did the federal statute violate Edge’s constitutional rights?
    The Supreme Court said that it did not. United States v. Edge Broadcasting, 509 U.S. 418 (1993).
    This is commercial speech and receives a lower level of protection than other speech. In order for a
    restriction to survive a First Amendment test, it need only “be tailored in a reasonable manner to
    serve a substantial state interest” (Edenfield v. Fane, quoted in text). Here, the purpose of giving
    support to states that oppose lotteries is a substantial one, and this restriction reasonably serves that
    purpose.
11. David Lucas paid $975,000 for two residential lots on the Isle of Palms near Charleston, South
    Carolina. He intended to build houses on them. Two years later the South Carolina legislature passed
    a statute that prohibited building seaward of a certain line, and Lucas’s property fell in the prohibited
    zone. Lucas claimed that his land was now useless and that South Carolina owed him its value.
    Explain his claim. Should he win?
    His claim is based on the Takings Clause of the Fifth Amendment. The Supreme Court was unable to
    make a final ruling because certain facts were unclear from the record. Nonetheless, the Court stated
    that when the owner of real property has been called upon to sacrifice all economically beneficial
    uses in the name of the common good, he has suffered a taking and is entitled to compensation. It
    appears very likely that Lucas's property has lost all beneficial uses. If South Carolina can demon-
    strate some unexpected common law right to prohibit Lucas from building, such as nuisance, it may
    prevail. In all likelihood, though, South Carolina will end up paying “just compensation” for Lucas's
    land. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

								
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