VA Bar Constitutional Law 3 — Questions and Answers
Question 1: Under the Establishment Clause, which test did the Supreme Court apply in Lemon v. Kurtzman (1971)?
- Coercion test
- Endorsement test
- Three-part Lemon test (secular purpose, neither advances nor inhibits religion, no excessive entanglement) (Correct answer)
- History and tradition test
Correct answer: Three-part Lemon test (secular purpose, neither advances nor inhibits religion, no excessive entanglement)
The Lemon test requires (1) a secular legislative purpose, (2) a principal effect that neither advances nor inhibits religion, and (3) no excessive government entanglement with religion.
Question 2: The Free Exercise Clause, after Employment Division v. Smith (1990), generally requires that to survive a free exercise challenge, a neutral, generally applicable law need only satisfy:
- Strict scrutiny
- Intermediate scrutiny
- Rational basis review (Correct answer)
- No scrutiny — neutral laws are automatically valid
Correct answer: Rational basis review
Under Smith, a neutral, generally applicable law that incidentally burdens religious practice need only satisfy rational basis and does not violate the Free Exercise Clause.
Question 3: The doctrine of unconstitutional conditions holds that the government may not condition a benefit on:
- Any requirement that is rationally related to the benefit's purpose
- The recipient's waiver of a constitutionally protected right (Correct answer)
- Recipients meeting income or eligibility thresholds
- Compliance with generally applicable laws
Correct answer: The recipient's waiver of a constitutionally protected right
The unconstitutional conditions doctrine prohibits the government from conditioning receipt of a benefit on the surrender of a constitutional right it could not directly command the person to forfeit.
Question 4: Under the Fourth Amendment, which of the following does NOT require a warrant based on current doctrine?
- Searching the content of a cell phone incident to arrest
- Placing a GPS tracker on a vehicle for 28 days
- Conducting a warrantless search of open fields beyond the curtilage (Correct answer)
- Searching a home when exigent circumstances are entirely absent
Correct answer: Conducting a warrantless search of open fields beyond the curtilage
Under the open fields doctrine (Oliver v. United States), open fields beyond the curtilage of the home have no reasonable expectation of privacy and thus are not protected by the Fourth Amendment.
Question 5: When may the President constitutionally exercise inherent executive power to act without Congressional authorization or against Congressional will, according to Youngstown Sheet & Tube Co. v. Sawyer?
- Never — all presidential power must be expressly authorized by statute or the Constitution
- Always — the President has plenary executive power during national emergencies
- Only in the lowest zone of presidential power, where the action is clearly within exclusive executive authority (Correct answer)
- Only when Congress is not in session
Correct answer: Only in the lowest zone of presidential power, where the action is clearly within exclusive executive authority
Under Justice Jackson's Youngstown concurrence, presidential power is at its lowest ebb when acting against Congressional will, and the President can only prevail if the action falls within his exclusive constitutional authority.
Question 6: The Non-Delegation Doctrine provides that Congress may NOT delegate legislative power to an administrative agency unless it provides:
- Detailed procedural rules for agency action
- An intelligible principle to guide the agency's discretion (Correct answer)
- A sunset provision for the delegation
- Judicial review of all agency decisions
Correct answer: An intelligible principle to guide the agency's discretion
The Non-Delegation Doctrine requires that any congressional delegation of legislative power include an intelligible principle that guides the agency's exercise of discretion.
Question 7: A state passes a law requiring all out-of-state milk to be tested at in-state facilities before sale, even though equivalent out-of-state testing facilities are available. This law most likely violates:
- The Supremacy Clause, because federal law regulates milk safety
- The Dormant Commerce Clause, because it discriminates against interstate commerce (Correct answer)
- The Privileges and Immunities Clause of Article IV
- The Contract Clause
Correct answer: The Dormant Commerce Clause, because it discriminates against interstate commerce
The in-state testing requirement discriminates against interstate commerce by burdening out-of-state producers with unnecessary costs when equivalent alternatives exist, violating the Dormant Commerce Clause.
VA Bar Constitutional Law 3
Under the Establishment Clause, which test did the Supreme Court apply in Lemon v.
Kurtzman (1971)?