_______________________
Student Exam I.D. Number
TOURO COLLEGE
Jacob D. Fuchsberg Law Center
FINAL EXAMINATION
CLOSED BOOK
RETURN
DAY: FRIDAY
LENGTH: 3 HOURS
FALL 2008
DATE: DECEMBER 12, 2008
TIME: 9:30 A.M.
CONSTITUTIONAL LAW I
PROFESSOR EILEEN KAUFMAN
General Instructions:
Do not use your name or social security number. Identify yourself by using the identification
number which was distributed by the registrar’s office.
You must sign in at the start of the exam. The proctor will ask you to sign in soon after the exam
begins. Sign your name next to the number that corresponds to your test paper number (upper
right-hand corner of the exam).
Also, when you turn in your exam, you must sign out. Follow the same procedure--sign your
name on the line next to your test paper number.
SPECIAL INSTRUCTIONS:
This exam consists of two parts. Part I contains 20 multiple choice questions worth three
points each for a total of 60 points. Part II contains four essay questions and is worth a total of 40
points. Plan your time accordingly.
The answers to the multiple choice questions must appear on the Scantron. The answers
to Part II must appear in the bluebook. Please write legibly on only one side of each page in the
bluebook. You will receive no credit for illegible answers.
GOOD LUCK!
Page 1 of 10
Part I
Multiple Choice
(3 points each)
CHOOSE THE BEST ANSWER AND INDICATE THE LETTER CHOSEN ON THE
SCANTRON FORM. DO NOT MAKE ENTRIES ON THE FORM UNTIL YOU ARE
CERTAIN OF THE ANSWERS, SINCE ERASURES CAN LEAD TO INACCURACIES
IN GRADING.
1.
In 1980, President Jimmy Carter signed the Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW). CEDAW has been ratified by one hundred
& eighty-five countries, including over 90 percent of members of the United Nations.
Despite the fact that almost thirty years have passed since President Carter signed the
treaty, Congress still has not ratified it. Patty, a second year law student at Touro Law
School, is incensed at Congress’ inaction and has decided to commence a lawsuit in
federal court. Which of the following is true regarding whether Patty has standing to
bring this lawsuit?
a.
b.
c.
d.
2.
Patty’s action is likely to be dismissed because there is no such thing as citizen
standing.
Patty’s action is likely to be dismissed because although she can establish an
actual or imminent injury, she cannot satisfy redressability.
Patty will be able to maintain her action based on the fact that she is a federal
taxpayer.
None of the above.
In McCulloch v. Maryland (1819), the Supreme Court was faced with the issue whether
Congress had power to establish the Second Bank of the United States. Which of the
following is a correct statement of the holding of the Court?
a.
b.
c.
d.
Congress had power to establish the bank pursuant to its express powers to
regulate interstate commerce, borrow money, lay and collect taxes, and raise and
support an army and navy.
Congress had power to establish the Bank pursuant to its implied power to make
laws to carry out Congress’s enumerated powers and pursuant to the necessary
and proper clause.
Congress had power to establish the Bank pursuant to its broad police power to
legislate to protect the health, safety, welfare and morals of the nation’s citizens.
Whether Congress had power to establish the Bank depended upon whether the
Bank was absolutely necessary to carry out an enumerated congressional power.
Page 2 of 10
3.
Assume that a New York statute authorizes wine producers located in the State of New
York to sell wine directly to consumers who reside in New York, but prohibits out-ofstate wine producers from making such direct sales. Wineconn, Inc., a wine producer
located in Connecticut, argues in federal court that the New York statute violates the
Dormant Commerce Clause. The attorney for New York State argues that the New York
statute furthers New York’s interest in preventing wine producers from selling wine to
minors in New York. Which of the following is a correct statement of the law governing
this controversy?
a.
b.
c.
d.
4.
Which of the following is a correct statement of the law of the standing of federal
taxpayers to sue in federal court?
a.
b.
c.
d.
5.
The statute is constitutional because the 21st Amendment, which gives the states
power to regulate alcoholic beverages, overrides the Dormant Commerce Clause.
The statute is automatically unconstitutional under the Dormant Commerce
Clause because it discriminates against out-of-state wine producers.
The constitutionality of the statute depends on whether the law furthers an
important state interest, and whether New York has a less discriminatory
alternative method to further the state interest.
The constitutionality of the statute depends on whether the burden on interstate
commerce outweighs New York’s interest in protecting minors from the harm
from alcoholic beverages.
Federal taxpayers have standing only to challenge specific congressional
spending that allegedly violates the federal Constitution.
Federal taxpayers have standing only to challenge federal executive or legislative
action allegedly violative of the Establishment Clause.
Federal taxpayers have standing only to challenge specific congressional
spending alleged to violate the Establishment Clause.
A federal taxpayer does not have standing to challenge the constitutionality of
congressional spending, because a taxpayer’s interest is too trivial and, even if a
taxpayer should prevail, the court’s decision would not likely impact on a federal
taxpayer’s income tax liability.
A federal statute establishes the Environmental Protection Agency (“EPA”), an
administrative agency, and grants the EPA authority to promulgate rules and regulations
establishing water purity standards “to protect the health and safely of the public.” The
federal statute provides that the Senate and House of Representatives may review the
regulations promulgated by the EPA and, by a majority vote of the Senate and House,
revoke any of the EPA’s regulations. It is argued in federal court that the statutory grant
of power to the Congress to revoke EPA regulations is unconstitutional. How should the
Court rule?
a.
b.
c.
d.
The statute is unconstitutional because it lacks an “intelligible principle.”
The statute is constitutional because it has an “intelligible principle.”
The statute is constitutional because it requires a majority vote of both houses of
Congress to override an EPA regulation.
The statute is an unconstitutional legislative veto.
Page 3 of 10
6.
Jeffrey Jones brings suit for damages in state court against Phillip Morris Tobacco
Company. The complaint asserts a common-law fraud claim. The complaint alleges that
Phillip Morris’s advertising contained misleading statements concerning the health risks
of its tobacco products. Phillip Morris argues that the court should dismiss Jones’s state
law common-law fraud claim because the federal Cigarette Labeling and Advertising Act
preempts the states from regulating cigarette advertising. The United States Supreme
Court has been asked to determine whether Jones’s claim is preempted by the federal
Cigarette Labeling and Advertising Act. Which of the following is an accurate statement
of the governing law?
a.
b.
c.
d.
7.
If the Court finds preemption, Jones will not be able to assert his common law
claim for relief.
If the Court finds that the federal statute preempts the field, Jones may assert his
common-law claim for relief, so long as the common-law claim does not conflict
with the federal statutory scheme.
The Court should reject Phillip Morris’s preemption claim because the
Supremacy Clause applies to state legislation but not to state common law.
None of the above.
Plaintiff Jane Doe has brought suit in federal court against the City of New York and
against Ed Torres, the Commissioner of the New York State Department of Social
Services. The complaint alleges that the New York City Department of Social Services
(“DSS”) denied Ms. Doe’s application for public assistance because she is not a citizen of
the United States, in violation of her rights under the Equal Protection Clause of the
Fourteenth Amendment. The complaint alleges that Commissioner Torres directed DSS
to deny Ms. Doe’s application. On her claims against the City of New York, Ms. Doe
seeks retroactive welfare benefits and an injunction enjoining the City from denying Ms.
Doe public assistance because she is not a citizen of the United States. Ms. Doe seeks
compensatory damages from Commissioner Torres in his personal capacity. The
defendants have asserted the Eleventh Amendment as a defense. How should the Court
rule?
a.
b.
c.
d.
None of the claims are barred by the Eleventh Amendment.
The claim for an injunction is not barred by the Eleventh Amendment, but
the claims for retroactive benefits and compensatory damages are barred.
The claims for retroactive benefits and for an injunction are barred by the
Eleventh Amendment, but the claim for compensatory damages is not barred.
All of the claims are barred by the Eleventh Amendment.
Page 4 of 10
8.
The Town of Southampton has public tennis courts. Assume that the Town requires a
permit to use the courts and charges Town residents $50 for a one year permit, and nonresidents of the Town $250 for a one year permit. A resident of Connecticut argues that
the Town’s policy violates the Privileges and Immunities Clause of Article IV of the
Constitution. How should the court rule?
a.
b.
c.
d.
9.
A Virginia statute provides that a construction contractor who contracts with Virginia to
carry out a construction project must agree that at least 30% of its employees who work
on the project are residents of Virginia. A resident of Maryland argues in federal district
court that Virginia’s policy violates both the Dormant Commerce Clause and the
Privileges and Immunities Clause of Article IV. How should the court rule?
a.
b.
c.
d.
10.
The constitutionality of the policy depends on whether the Town has a substantial
interest in charging non-residents of the Town a higher licensing fee.
The Town’s policy is constitutional because the Privileges and Immunities
Clause applies only to states, and not to municipalities.
The Town’s policy does not violate the Privilege and Immunities Clause.
None of the above.
The Virginia policy may not be challenged under the Dormant Commerce
Clause, but may be challenged under the Privileges and Immunities Clause.
The Virginia policy may not be challenged under the Privileges and Immunities
Clause, but may be challenged under the Dormant Commerce Clause.
The Virginia policy is likely to be found to violate both the Dormant Commerce
Clause and the Privileges and Immunities Clause.
The Dormant Commerce Clause and the Privileges and Immunities Clause claims
each requires the court to weigh the burden on interstate commerce against
Virginia’s state interest.
Congresswoman Susan Cooper was elected to the House of Representatives.
Nevertheless, the House of Representatives voted to exclude her from membership
because the House found that she did not meet the Constitution’s requirement that a
member of the House be a United States citizen for at least 7 years. Ms. Cooper has
brought suit in federal court against the Speaker of the House of Representatives, arguing
that she has a right to be seated in the House because, she alleges, she has been a United
States citizen for 8 years. The defendant argues that the case should be dismissed
because it presents a “nonjusticiable political question.” Defendant relies on language in
the Constitution stating that “Each House shall be the Judge…of the Qualifications” of its
own members. How should the court rule?
a.
b.
c.
d.
The case presents a “political question” because the Constitution delegates to the
House of Representatives the power to determine eligibility in Congress.
The case does not present a “political question” because a federal court can easily
determine whether an elected representative satisfies the 7 year citizenship
requirement.
The case presents a “political question” because it involves the right of an elected
official to hold office.
None of the above.
Page 5 of 10
11.
The federal Religious Freedom Restoration Act (RFRA) provides that a state or
municipality which substantially burdens an individual’s freedom of religion must
demonstrate, inter alia, a compelling government interest to justify the infringement upon
religious freedom. Assume that the validity of RFRA is challenged in federal court on
the ground that it is not within Congress’s power under §5 of the Fourteenth Amendment.
How should the court rule?
a.
b.
c.
d.
12.
RFRA is within Congress’s §5 power because Congress may formulate
“congruent and proportionate” remedial measures for enforcing the Fourteenth
Amendment.
RFRA is not within Congress’s §5 power because §5 does not give Congress
power to formulate remedies for Fourteenth Amendment violations.
RFRA is not within Congress’s §5 power because §5 gives Congress power only
to formulate remedial and preventive measures, and not to create new
constitutional rights.
None of the above.
During the Korean War President Truman issued an Executive Order requiring the
Secretary of Commerce to take over the nation’s steel mills and operate them. President
Truman found that a strike of the steel mills would threaten the nation’s war effort. Both
before and after the issuance of the executive order, Congress considered and rejected
enacting legislation granting the President power to issue such an executive order. The
President’s order was challenged in federal court on the ground that it violated separation
of powers. What is the correct ruling?
a.
b.
c.
d.
The order was unconstitutional because it was not authorized by Congress, and it
was not sufficiently related to the President’s constitutional powers under the
“vestiture” clause, the “take care” clause or pursuant to his “commander in chief”
power.
The order was unconstitutional because, even though it was within the
President’s powers as Commander in Chief, the President exercised legislative
power.
The order was unconstitutional because an Executive Order of the President must
be affirmatively approved by Congress; it can never be authorized by
Congressional silence.
All of the above.
Page 6 of 10
13.
Assume that Congress enacts a statute providing that the United States Supreme Court
“shall not have appellate jurisdiction to review any decision of a federal or state court
involving the constitutionality of the recitation of the Pledge of Allegiance in a public
school.” Assume further that a question is raised in the United States Supreme Court
whether Congress had power to enact this statute. What is the controlling principle?
a.
b.
c.
d.
14.
Which of the following is a correct statement of the United States Supreme Court’s
power of judicial review?
a.
b.
c.
d.
15.
Congress has power to regulate the original jurisdiction of the United States
Supreme Court, but not its appellate jurisdiction.
Congress has no power to prevent the United States Supreme Court from hearing
appeals that raise questions of federal constitutional law.
Congress has power to regulate the appellate jurisdiction of the United States
Supreme Court.
Congress may regulate the appellate jurisdiction of the United States Supreme
Court, except that Congress may never deprive the Supreme Court of authority to
decide a federal issue.
The power of judicial review applies in cases that come to the Supreme Court
from lower federal courts, but not from the state courts.
The power of judicial review is considered a democratic power.
The power of judicial review may be exercised only when there is a “case or
controversy.”
All of the above.
Which of the following fact patterns is likely to be treated as a political question?
I.
II.
III.
a.
b.
c.
d.
A lawsuit challenging the authority of the President to commit troops to
Afghanistan.
A lawsuit challenging the procedures used in the Senate to try a federal judge in
an impeachment proceeding.
A lawsuit challenging a state’s apportionment statute on the grounds that it
violates the equal protection clause.
I & II
II & III
I & III
I, II & III
Page 7 of 10
16.
In 2006 Congress enacted the Military Commissions Act. The statute provides that
“enemy combatants” who are detained at Guantanamo Bay, Cuba, may not bring a
habeas corpus proceeding in federal court to contest the validity of their confinement.
Rather, they may contest their confinement only in an administrative “Military
Commission” proceeding. Guantanamo Bay is not part of the United States but the
United States completely controls that territory pursuant to a lease with Cuba. In these
Military Commission proceedings, a detainee is assigned a “Personal Representative” to
assist him, but that person is not the detainee’s lawyer, the Government’s evidence is
accorded a “presumption of validity,” the detainee is allowed to present “reasonably
available” evidence, hearsay evidence is admissible and evidence is admissible so long as
it is “relevant and helpful”. The petitioners, who are not citizens of the United States,
argue that the federal statute violates the Suspension Clause, of Article I, §9 of the
Constitution which provides, “the Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public Safety may require
it.” Which of the following is true?
a.
b.
c.
d.
17.
The Supreme Court upheld the federal statute, finding that the Court should defer
to the judgment of Congress and the President that allowing enemy combatants to
bring habeas corpus proceedings would have a detrimental effect on the war
against terrorism.
The Supreme Court upheld the federal statute, finding that a Military
Commission proceeding is an adequate substitute for a habeas corpus proceeding.
The Supreme Court dismissed the case as a non-justiciable political question
because of the risk of embarrassment abroad and because of the particular need
for the country to speak in a single voice when it comes to the “war on
terrorism.”
The Supreme Court struck down the federal statute, finding that it violates the
Suspension Clause.
Which of the following accurately describes the power of judicial review?
I.
II.
III.
The Supreme Court has the power to declare acts of Congress unconstitutional.
The Supreme Court has the power to declare acts of the President
unconstitutional.
The Supreme Court has the power to declare state laws unconstitutional.
a.
b.
c.
d.
I & II
II & III
I & III
I, II & III
Page 8 of 10
18.
Which of the following propositions accurately reflects who has the power to appoint and
remove executive officials?
a.
b.
c.
d.
19.
In which of the following fact patterns will the state be found to be protected by
sovereign immunity?
I.
II.
III.
a.
b.
c.
d.
20.
The Constitution gives Congress the power to vest the appointment of inferior
officers in the executive branch, the judicial branch, or the legislative branch.
The Constitution gives the President the power to appoint principal officers.
Congress may not limit the President’s ability to remove executive officials.
All of the above.
Plaintiff sues the state in federal court for not providing her with overtime pay in
violation of the federal Fair Labor Standards Act, passed pursuant to Congress’
commerce clause power.
Plaintiff sues the state in state court for not providing her with overtime pay in
violation of the federal Fair Labor Standards Act, passed pursuant to Congress’
commerce clause power.
Plaintiff sues the state in federal court for failing to provide her with maternity
leave in violation of the federal Family and Medical Leave Act, passed pursuant
to Congress’ powers under section 5 of the 14th Amendment.
I & II
II & III
I & III
I, II & III
Which of the following propositions is true?
a.
b.
c.
d.
Congress can waive the case or controversy requirements of Article III.
If the defendant fails to object to the plaintiff’s standing, that objection may not
be raised on appeal.
A plaintiff with standing to seek damages automatically has standing to seek an
injunction.
The application of standing rules may result in no one having standing to
challenge governmental action.
Page 9 of 10
PART II:
(Total of 40 points)
1. Congress enacts a federal statute entitled the Public School Improvement Act offering the
states funds for public school education on condition that the state enacts a statute making gun
possession within 1,000 feet of a school a crime. A question is raised in litigation whether
Congress had the power to enact this statute. How should the court rule? Explain your answer.
(6 points)
2. Congress enacts a law requiring that New York State and local police officers search all
containers arriving on ships docked in the New York harbor. New York has commenced a lawsuit
challenging the statute on the ground that it violates the Constitution’s protection of state
sovereignty. Is the federal statute constitutional? Be sure to fully explain your answer. (6 points)
3. Briefly answer the following:
a. Does the President enjoy an immunity from suit? If so, describe what it covers. Is the
immunity qualified or absolute? (3 points)
b. Does the President enjoy an executive privilege? Is the privilege qualified or absolute?
What would the President have to allege to defeat the need for confidential information in a
criminal proceeding? (3 points)
4.
Congress enacts a statute entitled the federal Consumer Credit Protection Act. The Act
criminalizes extortionate credit transactions defined as the use of force or the threat of violence to
collect money, a practice known as loan sharking. In passing the statute, Congress made
extensive findings that loan sharking activities are carried out by organized crime and that
organized crime syndicates operate across state lines. The Congressional findings show that the
loan shark racket provides organized crime with its second most lucrative source of revenue,
exacts millions from the pockets of poor people, coerces its victims into the commission of
crimes against property, and causes the takeover by organized crime of legitimate businesses. In
short, Congress concluded that loan sharking is a national problem, with both social and
economic consequences, and that it has an adverse impact on interstate business.
Petitioner was prosecuted for engaging in loan sharking. There is no dispute that
petitioner is a “loan shark” who used the threat of violence as a method of collecting debts.
Petitioner challenges his conviction on the ground that Congress exceeded its powers under the
commerce clause when it enacted the federal Consumer Protection Act because it prohibits purely
local criminal activities. Evaluate his claim. (22 points)
Page 10 of 10