DE Bar Constitutional Law 2 — Questions and Answers
Question 1: A state statute bans all outdoor advertising signs except those promoting on-site businesses. A nonprofit challenges the ban as applied to its political billboards. What level of scrutiny applies to the restriction on the nonprofit's political speech?
- Strict scrutiny, because the regulation is content-based as to noncommercial speech (Correct answer)
- Intermediate scrutiny, because billboards are commercial in nature
- Rational basis, because aesthetics is a legitimate state interest
- No scrutiny, because billboards are not a protected medium
Correct answer: Strict scrutiny, because the regulation is content-based as to noncommercial speech
Exempting on-site commercial messages while banning political messages is content-based discrimination against noncommercial speech, triggering strict scrutiny.
Question 2: Congress passes a statute requiring state legislatures to enact regulations for disposing of radioactive waste or take title to the waste. The statute is best challenged under which doctrine?
- The anti-commandeering doctrine of the Tenth Amendment (Correct answer)
- The dormant Commerce Clause
- The Privileges and Immunities Clause of Article IV
- The nondelegation doctrine
Correct answer: The anti-commandeering doctrine of the Tenth Amendment
Under New York v. United States, Congress may not commandeer state legislatures by compelling them to enact or administer a federal regulatory program.
Question 3: A city denies a permit for a religious group to use a public park for worship services, though it grants permits to secular groups for similar gatherings. The strongest constitutional claim is:
- Free Exercise Clause violation because the policy is not neutral and generally applicable (Correct answer)
- Establishment Clause violation because religion is being singled out
- Substantive due process violation of the right to assemble
- Contracts Clause violation
Correct answer: Free Exercise Clause violation because the policy is not neutral and generally applicable
A policy that treats religious uses worse than comparable secular uses is not neutral or generally applicable and triggers strict scrutiny under the Free Exercise Clause.
Question 4: A plaintiff sues a private shopping mall for excluding her leafleting activity, claiming a First Amendment violation. The suit will most likely fail because:
- There is no state action by a privately owned mall (Correct answer)
- Leafleting is not protected speech
- Malls are nonpublic forums where all speech may be banned
- The Eleventh Amendment bars the suit
Correct answer: There is no state action by a privately owned mall
The First Amendment restrains only government conduct, and a private mall's exclusion of speakers is not state action under Hudgens v. NLRB.
Question 5: A state taxes out-of-state milk producers at a higher rate than in-state producers to protect local dairies. Absent congressional authorization, the tax is:
- Invalid as facial discrimination against interstate commerce (Correct answer)
- Valid under the state's police power over health
- Valid because taxes are reviewed only for rational basis
- Invalid only if the burden on commerce is clearly excessive under Pike balancing
Correct answer: Invalid as facial discrimination against interstate commerce
A facially discriminatory tax that economically protects in-state interests is virtually per se invalid under the dormant Commerce Clause.
Question 6: The President, without congressional authorization, orders the seizure of private steel mills during a labor strike to support a war effort. Under Justice Jackson's Youngstown framework, the President's power is:
- At its lowest ebb if Congress has implicitly or explicitly disapproved such seizures (Correct answer)
- At its maximum because of the Commander-in-Chief power
- In the zone of twilight regardless of congressional action
- Plenary because the action involves foreign affairs
Correct answer: At its lowest ebb if Congress has implicitly or explicitly disapproved such seizures
When the President acts contrary to the express or implied will of Congress, his power is at its lowest ebb and the seizure fails, as in Youngstown.
Question 7: A federal statute grants any citizen standing to sue agencies that fail to prepare environmental reports, regardless of personal harm. A plaintiff with no concrete injury sues. The suit should be:
- Dismissed, because Congress cannot eliminate Article III's injury-in-fact requirement (Correct answer)
- Allowed, because Congress may create standing by statute
- Allowed, because environmental harms are inherently shared
- Dismissed, because the claim is a nonjusticiable political question
Correct answer: Dismissed, because Congress cannot eliminate Article III's injury-in-fact requirement
Under Lujan v. Defenders of Wildlife, a statutory citizen-suit provision cannot substitute for the constitutional requirement of concrete, particularized injury.
DE Bar Constitutional Law 2
A state statute bans all outdoor advertising signs except those promoting on-site businesses.
A nonprofit challenges the ban as applied to its political billboards.
What level of scrutiny applies to the restriction on the nonprofit's political speech?