OR Bar Constitutional Law 3 — Questions and Answers
Question 1: A state law grants in-state businesses a 5% tax preference over out-of-state competitors bidding on government contracts. Under the Dormant Commerce Clause, this law is most likely:
- Constitutional because states may prefer their own citizens in government contracting
- Unconstitutional because it discriminates against interstate commerce
- Constitutional as a market participant exception since the state is the buyer (Correct answer)
- Unconstitutional only if out-of-state businesses can prove discriminatory intent
Correct answer: Constitutional as a market participant exception since the state is the buyer
The market participant exception allows states to favor in-state firms when acting as a buyer or seller in the market rather than as a regulator, so a state may prefer in-state bidders for government contracts.
Question 2: Under the Equal Protection Clause, classifications based on sex are subject to:
- Strict scrutiny — the classification must be necessary to achieve a compelling interest
- Intermediate scrutiny — the classification must be substantially related to an important government interest (Correct answer)
- Rational basis — the classification must be rationally related to a legitimate interest
- Heightened rational basis — the classification must actually advance a real government interest
Correct answer: Intermediate scrutiny — the classification must be substantially related to an important government interest
Gender-based classifications receive intermediate scrutiny under Equal Protection, requiring the government to show the classification is substantially related to an important governmental interest.
Question 3: The President vetoes a bill, and Congress overrides the veto with a two-thirds majority in both chambers. The President then refuses to enforce the law. This refusal is:
- Constitutional under the President's inherent executive authority
- Unconstitutional because the President must faithfully execute the laws (Correct answer)
- Constitutional if the President believes the law is unconstitutional
- Unconstitutional only if the Supreme Court has upheld the law
Correct answer: Unconstitutional because the President must faithfully execute the laws
Article II, Section 3 requires the President to 'take Care that the Laws be faithfully executed,' and a President generally may not simply refuse to enforce a duly enacted statute.
Question 4: A state passes a law making it a crime to burn the state flag. Under Texas v. Johnson principles, this law is:
- Constitutional because states may protect their own symbols
- Unconstitutional because flag burning is protected symbolic speech (Correct answer)
- Constitutional as a content-neutral regulation of conduct
- Unconstitutional only if directed at political dissent
Correct answer: Unconstitutional because flag burning is protected symbolic speech
Following Texas v. Johnson, burning a flag as a form of political protest is protected symbolic speech under the First Amendment, and government may not prohibit it merely because it disapproves of the message.
Question 5: Which clause prevents states from denying citizens of other states the fundamental rights they grant their own citizens?
- The Equal Protection Clause of the Fourteenth Amendment
- The Privileges or Immunities Clause of the Fourteenth Amendment
- The Privileges and Immunities Clause of Article IV, Section 2 (Correct answer)
- The Due Process Clause of the Fourteenth Amendment
Correct answer: The Privileges and Immunities Clause of Article IV, Section 2
The Privileges and Immunities Clause of Article IV, Section 2 prohibits states from discriminating against non-residents with respect to fundamental rights such as pursuing a livelihood or accessing courts.
Question 6: Congress passes a law creating an independent agency whose officers may only be removed by the President for cause. Under Morrison v. Olson and Seila Law, this structure is:
- Constitutional for multimember commissions but potentially unconstitutional for a single director (Correct answer)
- Unconstitutional in all cases because the President must have plenary removal power
- Constitutional for all agencies performing quasi-judicial functions
- Unconstitutional only if the agency exercises legislative power
Correct answer: Constitutional for multimember commissions but potentially unconstitutional for a single director
Seila Law held that for-cause removal protection is constitutional for multimember commissions but unconstitutional when applied to a single director of a powerful agency, because it impermissibly limits presidential control.
Question 7: A public university denies a student organization funding because the group's viewpoint is religious. This denial likely violates:
- The Establishment Clause
- The Free Exercise Clause
- The Free Speech Clause's prohibition on viewpoint discrimination (Correct answer)
- The Equal Protection Clause
Correct answer: The Free Speech Clause's prohibition on viewpoint discrimination
Rosenberger v. Rector held that denying student activity funds to a religious organization solely because of its religious viewpoint is unconstitutional viewpoint discrimination under the Free Speech Clause.
OR Bar Constitutional Law 3
A state law grants in-state businesses a 5% tax preference over out-of-state competitors bidding on government contracts.
Under the Dormant Commerce Clause, this law is most likely: