Which of the following is most accurate in describing how the U.S.
Constitution (CON) differs from an ordinary statute adopted by Congress, or a
rule adopted by a federal governmental agency, or a decision by a federal
court?
1.
2.
3.
4.
5.
CON deals only with matters fundamental to the
body politic, and not with more ordinary
matters of governance like those others.
CON is much more difficult to change, and thus
provides a kind of legal anchor or stabilizer in
the political system.
CON deals only with the basic structure of
government, unlike those others.
CON deals only with protection of individual
liberties, by defining and limiting what the
government can do.
CON defines the basic structure of the national
and state governments, and sets out the most
important limitations on their power.
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20%
2
3
4
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5
1
Which of the following is most accurate in describing the power of
the U.S. Supreme Court (SCOTUS) and lower federal courts to
refuse to enforce an act of another branch of government if it
finds the act inconsistent with the U.S. Constitution?
1.
2.
3.
4.
5.
It is expressly provided for in Article III of the U.S. CON.
It is necessarily implied in the CON, because if the courts
could not enforce the CON, it could not be enforced.
Because federal judges are appointed for life terms, and
not elected, the power is inconsistent with the
fundamental democratic principle -- that the government
is controlled by, and accountable to, the people through
elections.
It is consistent with the idea of democracy, because
federal judges are nominated and confirmed by elected
officials (the President, and the U.S. Senate), and court
decisions interpreting the Constitution can be overturned
by the people acting through democratic processes.
Regardless of the extent to which it is consistent with
democratic principles, this power has come to be
generally accepted as a useful check on the more
democratically accountable political branches.
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1
2
3
4
25
Would the CON have any legal force or authority if the federal
courts were obliged to carry out or enforce acts of Congress or
the Executive even if the courts believe they conflict with the
CON?
1.
2.
3.
4.
No, because only the courts have the expertise and
capacity to interpret the Constitution in a correct way.
Yes, because the President and members of Congress
and other public officials have equal expertise and
capacity to determine the CON’s meaning, and the
people can enforce the Constitution by voting out
elected officials who do not respect it.
No, regardless of # 2, because in any constitutional
political system there has to be an independent
tribunal with the final word on the CON’s meaning.
Yes, it could be enforced, but perhaps not as well as it
could if the courts were involved, especially in
situations where the popular will is at odds with the
CON.
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1
2
3
4
3
Suppose Congress approves by wide margins, and the President signs into
law, a federal statute that gives female victims of gender-motivated violence a
right of action in federal courts to seek damages from perpetrators. Is it
consistent with democratic principles for SCOTUS to refuse to enforce that
statute, on the ground that it beyond Congress’s constitutional power?
1.
2.
3.
Yes, because the “people” in the late 18th century
adopted the CON giving SCOTUS this power, and the
“people” more recently elected presidents and
senators who picked and confirmed Supreme Court
Justices to decide these matters.
#1, so long as, given the rather attenuated
connection to the “people,” SCOTUS, in considering
the matter, gives some benefit of the doubt to the
Congress, if the CON is not so clear on the breadth of
Congress’s powers.
No, but it is within SCOTUS’s authority as established
in Marbury.
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43
Suppose SCOTUS is confronted with a case where it could fairly interpret an
ambiguous statute (or another action from another branch of the federal
government) in a way that does not raise a constitutional question, or it could
fairly interpret it in a way that does raise a constitutional question. Other
things being equal, which path should it choose?
1.
2.
Interpret it in the way that avoids the constitutional
question, because the courts should conserve their
power to decide constitutional issues to situations
where they have no way to escape the task, in order
to avoid unnecessary confrontations with the other
branches of government.
Interpret it in the way that raises the constitutional
question, and resolve that question, because it is
important to have constitutional issues settled
wherever possible, so as to provide as much guidance
as possible to the other branches and the people on
the meaning of the CON.
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State courts have no jurisdiction (that is, no authority
or power) to address and decide federal constitutional
questions that arise in cases otherwise properly
brought before them.
1.
2.
3.
Correct, because nothing in the U.S. CON gives
state courts (as opposed to federal courts)
jurisdiction over such questions.
Incorrect, because the U.S. CON establishes
and lays out the duties and responsibilities of
state courts (including how they are selected
and their tenure).
Incorrect, because the U.S. CON’s so-called
Supremacy Clause, and its requirement that
state judges to take an oath to support the
CON, mean that they have not only the
jurisdiction, but the obligation, to decide such
questions.
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2
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36
Suppose that, in 2013, Congress amends Section 25 of the Judiciary Act (the
section upheld in Martin v. Hunter’s Lessee) by inserting an exception, so it
now deprives the SCOTUS of appellate jurisdiction over state court decisions
that address whether state laws restricting abortion or school prayer are
consistent with the CON. This amendment would likely be
1.
2.
Constitutional, because CON’s Article III, section
2 clearly gives Congress the power to “make
exceptions” to the appellate jurisdiction of
SCOTUS, and Martin acknowledges that Congress
has plenary power in this area.
Unconstitutional, because as explained by Justice
Story in Martin, the CON fairly implies that there
needs to be some national uniformity on its
meaning; that is, if the SCOTUS could not review
state court decisions on these kinds of federal
constitutional questions, we could end up with
the clearly unacceptable situation of having fifty
different understandings of the CON.
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7
In U.S. v. Nixon, p. 21, SCOTUS held
that
1.
2.
3.
4.
5.
President Nixon may be impeached and
removed from office for obstruction of justice.
The constitutional question whether the Senate
can delegate fact-gathering in this situation is a
political question that the federal courts will
not address on the merits, and leave it to other
branches to resolve.
Federal judges are not subject to impeachment.
The Constitution is fairly interpreted to allow
the U.S. Senate to delegate the fact-gathering
part of an impeachment trial to a committee of
the Senate.
The CON requires that the target of an
impeachment process be afforded “due process
of law.”
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2
3
4
8
5
Is the “political question” doctrine implicit in the CON, or is it just a
policy of prudent restraint that the SCOTUS imposes on itself and
other federal courts, on certain kinds of constitutional matters or
questions?
1. It is implicit in the CON, because it calls upon
the SCOTUS to decide whether the text of the
CON commits the constitutional question at
hand to another branch of government.
2. It is a self-imposed policy of prudent restraint –
a recognition that other branches may have
greater competency to resolve certain
constitutional questions.
3. Neither, it is expressly provided for in Article III.
4. Both.
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1
2
3
9
4
Suppose in 2006 the Senate ratifies a free trade treaty the Bush Administration
negotiated with China. In 2013, President Obama unilaterally rescinds the
treaty. Business interests that support the treaty sue in federal court, arguing
the President has no constitutional power to rescind a treaty without the
consent of the Senate. How should the court resolve the case?
1.
2.
3.
4.
The President should win, because the most persuasive
interpretation of the CON is that Senate involvement is not
required to rescind a treaty the Senate has previously
ratified.
The President should win, because the matter involves
delicate issues of foreign affairs and should be regarded as a
political question beyond the competence of the federal
courts to resolve.
The treaty supporters should win, because the CON expressly
requires Senate approval to rescind a treaty that the Senate
has previously ratified.
The treaty supporters should win, because the matter
requires a simple interpretation of the text of the CON, and
most persuasive interpretation is that Senate involvement is
required to rescind a treaty the Senate has previously
ratified.
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2
3
4
10
According to McCulloch v. Maryland, what specific
powers does the U.S. Constitution give to Congress that
allow it to create a national bank?
1.
2.
3.
4.
Congress doesn’t need specific powers; it has
general power under the Constitution to take
actions it determines will serve the national
interest, unless specifically limited by the CON.
Among the “enumerated powers” of Congress in
Article I is the power to create a national bank.
Several “enumerated powers” in Article I support
the idea of a national bank, including the power
to regulate interstate commerce, to coin money
and regulate its value, and the power to tax and
provide for the general welfare.
The “necessary and proper” clause in Article I is
all that is needed to support the constitutionality
of the national bank.
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2
3
114
What does McCulloch say about the amount of deference the
courts should give to Congress, in deciding whether a statute is
“necessary” for carrying out one of its “enumerated powers”?
1.
2.
3.
4.
No deference; the burden is on Congress (and
its lawyers) to persuade the courts that the
requisite necessity exists.
A good deal of deference; those arguing that
Congress has exceeded its powers have a fairly
heavy burden to show lack of the requisite
necessity.
Complete deference; the Court will only
consider challenges that Congress is limited by
some other part of the Constitution; e.g., the
Bill of Rights.
Such questions of congressional power are
“political questions” and are not “justiciable” or
resolvable by the federal courts.
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124
Same result, under Marshall’s reasoning in Gibbons, if Gibbons’
federal license authorized him also to carry passengers between
towns along the Hudson River wholly within the State of New York
(that is, intrastate commerce), as well as between New York and
New Jersey?
1.
2.
3.
No, because intrastate traffic is plainly not
“commerce among the several states,” and so
federal law could not trump NY state law.
Yes, if the Court decided that Congress had carried
its heavy burden of showing that this regulation of
intrastate commerce was part of or intimately
connected to “commerce among the several
states.”
Yes, because the Court would defer heavily if not
completely to Congress’s judgment that this
intrastate commerce was part of or intimately
connected to “commerce among the several
states.”
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13
In Champion v. Ames, p. 39, the Court made
clear
1.
2.
3.
4.
that Congress’s power to “regulate” commerce
among the several states included the power to
prohibit things from crossing state lines.
that Congress can use its power to regulate
interstate commerce only for economic
reasons, and not to serve moral or noneconomic purposes.
that Congress could prohibit gambling
anywhere in the nation through its power to
regulate interstate commerce.
that Congress could prohibit gambling
anywhere in the nation through its power to tax
and spend to promote the general welfare.
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2
3
14
4
Does the Supreme Court’s reasoning in Shreveport (p. 40)
allow Congress to regulate shipping rates charged by a
railroad that operates only within the boundaries of Texas, say
between Dallas and Marshall, Texas?
1. No, because this is purely internal commerce,
and not part of the stream or current of
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“commerce among the several states.”
2. Yes, if Congress had a rational basis for finding
that such shipping had a close and substantial
relation to “commerce among the several
states,” making it appropriate to regulate such
rates.
3. Yes, if Congress carried its burden of showing
that intrastate commerce was part of a stream
or current of “commerce among the several
states.”
1
2
15 3
What is the best explanation for the majority decision in
Hammer v. Dagenhart, p. 42, in holding that Congress had no
power to prohibit the movement across state lines of goods
made with child labor?
1.
2.
3.
The majority believed it needed to protect the
authority of the states over manufacturing
activities and social issues like child labor within
their borders.
The majority believed it needed to protect the
liberty of individuals (like parents) and private
enterprises (like employers of child labor) to be
free from all governmental regulation, state or
federal.
The majority believed the commerce clause
allowed no distinction between Congress’s power
over child labor and over gambling, because it
overruled Champion v. Ames.
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16
Was President Franklin Roosevelt’s “court-packing”
plan constitutional?
1.
2.
3.
4.
5.
No, because the Constitution fixes the number
of Justices on the Supreme Court.
No, because the plan contradicted the
Constitution’s requirement that Supreme
Court Justices have unlimited terms (during
good behavior).
No, because to alter the size of the Court in
order to influence the outcome of its decisions
undermines judicial independence, contrary to
the intent of the framers.
Maybe, although many in the Congress and
the country thought it was constitutionally
inappropriate.
Yes.
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2
3
4
17
5
The Court’s turnaround on the constitutionality of New Deal
legislation in cases like Jones & Laughlin (p. 44) was
1. A cave-in to political pressure, or an
attempt to preserve the Court’s
institutional status from harm, by
Justice Roberts, the swing vote.
2. A return to John Marshall’s vision of
the commerce clause power.
3. Both.
4. Neither, but simply a recognition that
cases like Jones & Laughlin involved
facts different from the prior decisions,
and could readily be distinguished
from them.
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1
2
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3
4
18
In the legislation at issue in Darby, p. 45, what constitutional
power did Congress employ to carry out its objective of setting
a floor under wages, and capping the working hours, of most
workers in private industry throughout the country?
1. Its power to exclude goods from
interstate commerce.
2. Its power over production of goods
for interstate commerce.
3. Both.
4. Neither; it used its power under
the necessary and proper clause.
5. Neither; it used its power under
the Tenth Amendment.
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19 5
The U.S. Supreme Court should be more willing to
overrule its past decisions on constitutional issues than
its past decisions on non-constitutional issues, like
interpreting statutes or statutes or the common law.
1.
2.
3.
4.
Correct, because Court mistakes or misjudgments about
the Constitution are very hard to put right, but its nonconstitutional decisions can be “corrected” by Congress
by simple statute.
Incorrect, because the Constitution is our fundamental
charter, and its interpretation ought to be stable, and
not blow with prevailing political winds.
Incorrect, because the amendment process provides a
clear path to correct judicial mistakes or misjudgments
on constitutional matters.
Incorrect, because Supreme Court Justices attended law
school, and thus are less prone to make mistakes or
misjudgments.
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2
3
20 4
In Wickard v. Filburn (p. 48), by what reasoning did the Court
decide that Congress could regulate Roscoe Filburn’s wheat
production, which the Court conceded was trivial by itself?
1.
2.
3.
4.
Filburn’s wheat crossed state lines.
Filburn’s wheat production was part of a
stream of interstate commerce.
Congress had a rational basis for
concluding that Filburn’s wheat
production, considered alone, had a
substantial effect on interstate
commerce.
Congress had a rational basis for
concluding that Filburn’s wheat
production, when aggregated with that
of other farmers that grew wheat for onfarm consumption, had a substantial
effect on interstate commerce.
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3
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4
21
In Heart of Atlanta and McClung (pp. 50-51), holding that Congress had the
constitutional authority to enact the Civil Rights Act of 1964, what was the Court’s
view of the connection between the legislation and interstate commerce?
1.
2.
3.
4.
5.
Congress must make a substantial showing of the
connection between racial discrimination in hotels
and restaurants and interstate commerce.
Congress must show a rational basis for
concluding there is such a connection.
Congress need make no showing regarding a
connection; the Court needs only to determine
that Congress could have had a rational basis for
finding a connection.
The breadth of Congress’s power over interstate
commerce is not matter of judicial concern.
None of the above; the Act was held to be
constitutional as an exercise of Congress’s power
to enact “appropriate” measures to enforce the
fourteenth amendment’s equal protection clause
(see section 5 of that Amendment, Appendix B, p.
23).
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5 22
It should have been easier to uphold Congress’s exercise of
power under the Commerce Clause in Morrison, compared to
Lopez.
1.
2.
3.
4.
5.
Correct, because in Morrison (unlike Lopez), Congress had
made express findings linking what it was regulating and
interstate commerce.
Correct, because the context in Morrison (unlike Lopez)
was civil, not criminal, and for that reason had a closer
connection to commerce.
Correct, because the Court could have found that the
problem of gun-based violence near schools was not nearly
so prevalent, or so dampening to the national economy, as
gender-based violence against women.
Incorrect, because the connection between what Congress
was regulating and interstate commerce was about equally
attenuated in these cases.
Incorrect; both statutes should have been upheld, because
in both Congress had a rational basis for connecting the
thing regulated (guns near schools; gender-based violence
against women) to interstate commerce.
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2
3
4
23
5
Do Morrison and Lopez (p. 53) effectively overrule Wickard v.
Filburn?
1.
2.
3.
4.
Yes, because Morrison/Lopez reject the idea of
aggregating the cost of crime from gun activities near
schools or gender-based violence against women from
individual instances to find the needed effect on
interstate commerce.
Yes, because no rational commerce-clause-based
distinction can be drawn between growing wheat on
your own land for your own consumption (Wickard) and
carrying a gun near a school (Lopez) or beating up
women because of their gender (Morrison).
No, because growing wheat, even for your own
consumption, is a more inherently “economic activity”
than the activities being regulated in Morrison/Lopez.
No, because Congress made the requisite commerce
clause findings in Wickard, and failed to do so in
Morrison/Lopez.
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2
3
24
4
Gonzales v. Raich (p. 62) strongly suggests that the limits the
majority in Morrison/Lopez announced on Congress’s
commerce clause power will likely not really limit very much
what Congress can do under that clause.
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1.
2.
50%
Correct, because Gonzales applies the broad
Wickard aggregation principle, applies a
deferential “rational basis” test, and upholds the
use of the commerce clause power to achieve
largely moral or non-economic social policy goals.
Incorrect, because marijuana cultivation and use
(unlike gender-based violence against women, or
gun possession near schools) is a major national
economic activity, so Morrison/Lopez still give the
Court broad opportunities to limit Congress’s
power by determining that the activity Congress
wants to regulate is not “economic” or
“commercial.”
1
2
25
The commerce clause does not authorize the Congress to require most
individuals to buy private health insurance if they would otherwise choose not
to do so.
1.
2.
3.
4.
5.
Correct, because Congress’s commerce clause power
reaches only economic activity, not economic inactivity.
Correct, because health care is not commercial or economic
in nature.
Correct, because individual private decisions whether or not
to purchase health insurance do not use the channels or
instrumentalities of interstate commerce.
Incorrect, because Congress has a rational basis for finding
that the failure of individuals to purchase health insurance,
when aggregated together, has a substantial effect on
interstate commerce.
Incorrect, because practically every single individual
participates in the health care market, sooner or later, so
Congress can say it should be sooner (by mandating the
purchase of insurance now) rather than later, at the point
when the individual needs health care.
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1
2
3
4
26
5
The Court’s decisions in Sebelius, Morrison and Lopez are no obstacle
to Congress using the commerce clause to legislate a “single-payer”
system of national health insurance, whereby the national
government provides basic health care to all (as in Canada and Great
Britain, for example).
1.
2.
3.
4.
Correct, because the health care industry obviously has a
huge effect on interstate commerce and the national
economy, and Congress could find this is a “necessary and
proper’ way to regulate it.
Correct, because this is just an extension of a system
Congress enacted in 1965 for Americans older than 65
(Medicare), that the Supreme Court decided was fully
within Congress’s commerce power.
Incorrect, because to “nationalize” the health care system
this way would severely limit the scope and authority of
state governments, and thus violate the Tenth
Amendment.
Incorrect, because Sebelius et al. stand for the
proposition that the commerce power cannot be used to
so drastically curtail individual liberty and freedom of
choice.
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2
3
27 4
Does the Commerce Clause allow Congress to regulate (by a statute
like the federal Endangered Species Act) building on a ten-acre
parcel of private land within a state, far from a state line and
interstate activity, in order to prevent the extinction of a particular
rare species of plant or animal without commercial value, whose
only known habitat is that parcel of land?
1.
2.
3.
No, because of the obvious lack of connection
to the channels or instrumentalities of
interstate commerce, and the obvious lack of
significant effect on interstate commerce.
Yes, because Congress has a rational basis for
finding that the loss of this particular species,
aggregated with other species, could have a
substantial effect on interstate commerce.
Yes, but only if Congress has a rational basis for
concluding that this particular species is an
integral part of a particular ecosystem that,
should it be harmed, could have a substantial
impact on interstate commerce.
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2
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3
28
Congress can make every activity that is now a crime under
state law, a crime under federal law, if that activity involves use
of a cell phone, because cell phone networks cross state lines.
1.
2.
3.
Correct, because Lopez/Morrison/Sebelius
leave intact the Champion v. Ames line of
precedent, giving Congress practically
unlimited power over the channels or
instrumentalities of interstate commerce.
Correct, but only if the activity being made a
federal crime can be said to be commercial
or economic in nature.
Incorrect, because extending Champion to
electronic networks would allow Congress
easily to circumvent all judicially
enforceable limits on its commerce clause
power, and regulate practically everything,
wiping out state authority.
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2
3
29
The Supreme Court should abandon the quest for meaningful, predictably enforceable
constitutional limits on Congress’s commerce power. Instead, it should use other
devices to try to ensure that Congress pays attention to the values of federalism, such
as (a) where possible, interpreting ambiguous statutes narrowly to protect state
authority (as in Jones and SWANCC, handout); and (b) requiring that Congress take
evidence and make specific findings connecting up its regulatory measures to interstate
commerce.
1.
2.
3.
Agree, because those other devices would avoid putting the Court in a
direct collision course with the Congress (and public opinion), so that if
the Court ruled against the Congress, the problem could be corrected by
enacting new legislation (rather than amending the Constitution).
# 1, plus the Court should recognize that the states and the private
sector have major influence in the political process in Congress, which
provides a built-in check on Congress going too far; therefore , the Court
is needed only to review and determine whether such legislation
violates some other part of the Constitution (like the First Amendment’s
protection for free speech).
Disagree, because these other devices will not prevent Congress from
enacting far-reaching legislation that could effectively wipe out much
state authority, so the federal courts remain the primary line of defense
to protect the states from overreaching federal action.
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2
30
3
What supports the idea the Court has embraced, in cases like Bailey v.
Drexel Furniture, fn. a, p. 71, that, for a federal tax to be constitutional
(when it is not simply a means or tool for exercising some other
enumerated power of Congress, like over interstate commerce), its primary
purpose must be to raise revenue rather than to regulate conduct or
activity?
1. The wording of the taxing power in
the Constitution.
2. The Tenth Amendment and the
nature of the federal system.
3. The Court’s well-developed capacity
for distinguishing between a
regulatory tax and one that raises
revenue.
4. All of the above.
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3
314
Suppose the Supreme Court has held it beyond the power of Congress under the
commerce clause to regulate margarine production. Could Congress enact a federal
tax on sales of margarine, and sets the rate on margarine colored yellow at 40 times
the rate of the tax on margarine colored white. Yellow margarine producers and
consumers sue, challenging the differential tax rate as violating Congress’s taxing
power. What result?
1.
2.
3.
The Court would likely find the tax was primarily to
raise revenue, and so was constitutional.
The Court would likely find that the tax was both to
raise revenue, and to prevent consumers from
confusing margarine with real butter (which was much
more possible with yellow margarine), and so was
constitutional.
The Court would likely find that the tax was basically a
penalty to discourage the production of yellow
margarine, to protect dairy farmers who produce real
(yellow) butter from competition from cheaper, lookalike margarine, and therefore beyond Congress’s
power.
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2
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32 3
Could Congress enact a statute providing that any federal
taxpayer who commits gender-based violence against women
shall pay double the normal federal income tax rate?
1.
2.
No, because otherwise Congress could do
practically anything through its use of the power
to tax, and swallow up all the authority the states
ordinarily exercise, which would be a blatant
circumvention of Lopez and Morrison (just as the
Court in Bailey v. Drexel Furniture fn. a, p. 71,
rejected Congress’s use of taxing authority to
circumvent Hammer v. Dagenhart).
Yes, because the tax may have the purpose of
raising revenue as well as discouraging violence
against women, and thus would be
constitutional.
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2 33