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					                                     Introduction to Constitutional Law
                                                Spring 2010
                                               Professor Levy

SAMPLE EXAMINATION QUESTIONS:

        The examination will consist of 60 multiple choice questions, divided into two parts. Part
I (40 questions) focuses on the content of constitutional doctrine and do not have a significant
factual component. Part II (20 questions) focuses on the application of doctrine to facts—there
are several factual scenarios, each of which is followed by a series of questions. Questions in
Part I will be worth 2 points each; questions in Part II will be worth 3 points each. These sample
examination questions include questions of both kinds.

In evaluating the questions and answers, the following rules apply B
    a. If more than one answer seems correct, choose the best answer. For purposes of this
       examination, the best answer is the one that is most detailed and specific, yet still correct.
    b. If an answer includes multiple statements and any one of them is incorrect, the answer is
       incorrect. For example, if the conclusion stated in an answer is correct, but an incorrect
       statement of the reasons for the conclusion is provided, the answer is not correct.
    c. If a general statement made without qualification is partially correct, but incorrect in
       some instances or respects, then it is not a correct answer.
    d. A litigant should or could make an argument or an argument is appropriate, if the
       argument is not foreclosed by or is consistent with current doctrine and plausible on the
       facts, regardless of whether the argument would probably or certainly succeed.
    e. A result may or might occur or an argument may or might succeed if such an outcome is
       possible under current doctrine, even if it is not likely or probable.
    f. A result is probable or an argument would probably succeed if that outcome is more
       likely than not to occur, assuming that current doctrine is applied to the stated facts.
    g. A result should occur if the neutral application of current doctrine on the stated facts
       would ordinarily produce that result, even if a court might come to a different conclusion.



                          Sample Doctrinal Questions (similar to those in Part I)

1. Which of the following statements concerning the separation of powers doctrine is correct?

    a. The Supreme Court generally views legislative, executive, and judicial powers as distinct, and
       therefore requires strict separation of powers.
    b. Under the separation of powers, the President has inherent authority to take whatever action he
       considers to be necessary to promote the national interest.
    c. When evaluating the extent of the President’s powers as commander in chief and representative
       of the United States in foreign relations, the Supreme Court often refers to historical practice.
    d. The scope of the President’s power is fixed by the Constitution, and therefore cannot be enlarged
       or restricted by Congress.
    e. None of the above.



Introduction to Constitutional Law                                                  Sample Exam Questions
Professor Levy, Spring 2010                                                                       Page 1
2. The “nondelegation” doctrine—

    a. Permits Congress to delegate legislative authority to administrative agencies so long as it
       provides an intelligible principle to guide and control agency discretion.
    b. Was repudiated by the Supreme Court in the wake of the “New Deal shift” that occurred in 1937,
       along with other constitutional doctrines that limited government regulation, such as a narrow
       construction of the commerce power and Lochner-era substantive economic due process.
    c. Was the basis for the Court’s invalidation of the Line Item Veto statute, which did not provide
       adequate standards for the application of the authority delegated to the President.
    d. Has been applied loosely to permit very broad delegations of authority to agencies under broad
       statutory standards.
    e. Is judicially applicable to the states because the delegation of excessive authority to agencies
       violates the Guaranty Clause, under which “The United States shall guarantee to every State in
       this Union a Republican Form of Government.”

3. Which of the following statements concerning the President’s power to enter into agreements with
   other countries is correct?

    a. Under the Treaty Clause, the President may only enter into agreements with other countries with
       the consent of the Senate.
    b. The Supreme Court has recognized that the President, as chief representative of the United States
       in foreign relations, may enter into whatever agreements he or she wants without Senate approval.
    c. The President has the authority to enter into executive agreements with other countries without
       Senate consent, at least when the agreement is connected to a specific presidential power
       recognized under the Constitution or historical practice and Congress has acquiesced.
    d. Although the President may enter into executive agreements with other countries without Senate
       consent, such agreements cannot preempt state law.
    e. Both “b” and “d” are correct.

4. Which of the following statement’s concerning the President’s appointment power is not correct?

    a. The Appointments Clause is the exclusive means of appointing “officers of the United States,”
       but it does not apply to employees who exercise no governmental authority.
    b. Under the Appointments Clause, only “principal officers” may be nominated by the President
       with the advice and consent of the Senate.
    c. Under the Appointments Clause, Congress may vest the appointment of inferior officers in the
       President alone, the courts, or the heads of departments.
    d. The Appointments Clause does not preclude Congress from vesting the appointment of inferior
       executive officers in the courts of law, even though they are a different branch of government.
    e. All of the statements above are correct.

5. If Congress and the President disagree with a constitutional ruling of the United States Supreme
   Court, all of the following responses are clearly permitted by the constitution except—

    a. Approving a constitutional amendment to reverse the result pursuant and submitting it to the
       states for ratifications, following the procedures specified in the Constitution.
    b. Appointing Justices who have a different view of the Constitution when vacancies on the
       Supreme Court occur.
    c. Attempting to persuade the Supreme Court to overrule its prior decision in subsequent cases.
    d. Stripping the federal courts of jurisdiction to decide the issue in any case in which it arises.
    e. All of the responses above are clearly permitted by the Constitution.

Introduction to Constitutional Law                                                Sample Exam Questions
Professor Levy, Spring 2010                                                                     Page 2
6. Which of the following statements concerning standing is not correct?

    a. In order to provide a basis for standing, an alleged injury must be “actual or imminent” and
       injuries that may or may not happen at some point in the future are insufficient to confer standing.
    b. A party ordinarily may not rely on injuries to others to provide a basis for standing, but rather
       must have suffered an injury himself or herself.
    c. Standing is not available unless the alleged injury is directly caused by a government, because
       allowing suit against the government when a private actor is the direct cause of an injury would
       violate state action doctrine.
    d. A plaintiff must have suffered a “concrete” injury in fact, which generally would not include
       ideological injuries or a general interest in ensuring compliance with the law.
    e. The doctrine of standing includes both constitutional components derived from the “case or
       controversy” requirement of Article III and prudential components that are not constitutionally
       required.

7. Which of the following circumstances or conditions would not be a basis for concluding that a
   question is a “political question”?

    a. The case involves a “direct conflict between the President and Congress in matters of significant
       political import.”
    b. There is a “textually demonstrable constitutional commitment of the issue” to another branch of
       government.
    c. There is an “unusual need for unquestioning adherence” to a political decision already made.
    d. It is impossible to decide the question without an initial policy determination of a kind clearly for
       nonjudicial discretion.
    e. The “lack of judicially discoverable and manageable standards” for resolving the issue.

8. The President’s executive privileges and immunity from suit—

    a.   Are governed by explicit provisions in Article II.
    b.   Do not apply when a civil suit, as opposed to a criminal prosecution, is involved.
    c.   Include the power to disregard the law when necessary for national security.
    d.   All of the above.
    e.   None of the above.


              Sample Application of Doctrine to Fact Questions (similar to those in Part II)

        Assume that the State of Nimby is a small, densely populated state that is bisected by a busy the
Thru-Nimby Tollway. The Tollway is operated by a public company created by the Nimby Legislature
and subject to legislative control. In response to public outcry and legislative pressure after a tragic
accident involving a truck carrying explosives, the Tollway company imposed a sizeable hazardous
materials surcharge on all hazardous materials using the Tollway. The surcharge, which was computed on
the basis of weight and assessed according to categories of risk, came to about five hundred dollars per
average truckload of explosives. The proceeds of the surcharge were devoted to safety-based
improvements in the Tollway and used to fund a victims= compensation insurance pool to protect against
otherwise uninsured losses from future accidents. A large volume of hazardous materials moved daily on
the Tollway, over 95% of which both originated out-of-state and was destined for out-of-state locations.
Following the adoption of the surcharge, the volume of hazardous material shipped using the Tollway was
cut in half. In addition, some explosive companies experienced a loss of business because increased

Introduction to Constitutional Law                                                   Sample Exam Questions
Professor Levy, Spring 2010                                                                        Page 3
shipping costs made it more cost effective to avoid purchasing from whose location required
transportation through Nimby. Finally, a study by safety experts concluded that rerouting explosives to
avoid the Tollway increased the net risks of accident because shipments were required to take longer
routes.

1.   On the facts described above, which of the following statements is correct?

     a. Even if the surcharge is neutral on its face, a court might conclude that it is discriminatory in
        practical effect because its burdens fall almost exclusively on out of state interests and the facts
        arguably suggest a protectionist purpose.
     b. Because the surcharge is neutral on its face, it is valid unless the companies prove it was adopted
        with the intent to discriminate.
     c. Even if the surcharge is neutral, it is probably per se invalid because it is nothing more than a
        direct tax on interstate commerce
     d. Because the surcharge is neutral, the court should apply the rational basis test, and the surcharge
        is valid if it is reasonably related to any legitimate state purpose.
     e. Even if the surcharge is neutral, the court should apply strict scrutiny because the law burdens
        interstate commerce, which is a fundamental right.

2. Assuming, without indicating the correct answer to any other question, that the surcharge
   discriminates against interstate commerce, which of the following arguments would not be
   appropriate on the facts and consistent with current doctrine?

     a. That under the Supreme Court’s precedents, the surcharge is subject to a nearly per se rule of
        invalidity.
     b. That the surcharge should be upheld because it is necessary to further the state’s legitimate non-
        protectionist purpose of providing for the public safety and inuring against catastrophic accidents.
     c. That the even if the purpose of promoting safety and insuring against catastrophic accidents are
        legitimate, non-protectionist purposes, the state could accomplish those goals without
        discriminating against interstate commerce.
     d. That the state is entitled to protect its citizens from the dangers imposed by interstate commerce
        by any rational means.
     e. All of the above arguments are consistent with current doctrine.

3. Assuming, without indicating the correct answer to any other question, that the surcharge is neutral as
   to interstate commerce, which of the following arguments should the parties make in support of their
   respective positions?

     a. Nimby should argue that the courts may not consider the study by safety experts because they
        must defer to the state legislature’s safety judgment.
     b. The companies should argue that the burdens on interstate commerce imposed by the surcharge
        are excessive, insofar as the surcharge impedes the interstate movement of goods by diverting
        traffic around Nimby.
     c. Nimby should argue that the courts must reject the challenge because recent United state Supreme
        Court decisions have limited the application of the dormant Commerce Clause to discriminatory
        measures.
     d. The companies should argue that the court should not defer to the safety judgments of the Nimby
        legislature because the burden of the law falls almost exclusively on nonresidents, so that the
        political process does not provide a check on improvident action.
     e. Both arguments “b” and “d” are consistent with current doctrine.


Introduction to Constitutional Law                                                   Sample Exam Questions
Professor Levy, Spring 2010                                                                        Page 4
4. Assuming for purposes of this question only, that here was a rebate of 75% of the surcharge, for
   hazardous material that originated in or was destined for a site within the State of Nimby—

    a. The surcharge would probably be considered neutral because everyone pays the toll and
       surcharge.
    b. The surcharge would probably be considered discriminatory because its effect when combined
       with the rebate is the same as a differential surcharge on interstate commerce.
    c. The surcharge would probably be upheld even if it is considered discriminatory, because the
       rebate is a subsidy and subsidies for in state interests do not violate the dormant Commerce
       Clause.
    d. If the challenge is brought by corporations, they probably could not claim the protection of the
       dormant Commerce Clause, because corporations are not citizens who can invoke the protection
       of the Clause.
    e. None of the above.

5. If the explosive companies and shippers challenged the surcharge as a violation of the Privileges and
   Immunities Clause of Article IV—

    a. The surcharge would probably be upheld even if it is considered discriminatory, because the
       “substantial reason” test that applies under the Privileges and Immunities Clause of Article IV is
       the functional equivalent of the rational basis test.
    b. The challenge should fail, because the Tollway company is acting as a market participant by
       selling use of the Tollway for a fee, and is thus probably exempt from the Clause.
    c. The surcharge would probably be invalid even if it is not discriminatory, because free interstate
       movement is part of the right to travel, which is a privilege and immunity of United States
       citizenship.
    d. If the companies are corporations, they probably could not claim the protection of the Privileges
       and Immunities Clause.
    e. Both “b” and “d” are correct.

6. If the explosive companies and shippers challenged the surcharge as a violation of due process, which
   of the following statements are not correct?

    a. The courts would probably apply the rational basis test, because property and contract rights are
       not fundamental rights subject to elevated scrutiny.
    b. If the court applies the rational basis test, it is unlikely to invalidate the surcharge, because the
       rational basis test is usually very deferential.
    c. The courts might apply elevated scrutiny because the law burdens truck drivers’ right to pursue a
       calling, which is a fundamental right for purposes of due process analysis.
    d. If the companies are corporations, they could nonetheless claim the protections of due process,
       because corporations are persons for purposes of the Due Process Clause.
    e. All of the statements above are correct.




Introduction to Constitutional Law                                                   Sample Exam Questions
Professor Levy, Spring 2010                                                                        Page 5

				
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