Sample Final Exam Questions: Constitutional Law
Professor: Peter M Shane
Part One
Imagine that Congress is contemplating proposed legislation, that includes the following provisions:
Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Safe Battery Incineration Act of 1994."
Sec. 2. Congress finds that:
(a) lead acid batteries are currently a significant source of lead in emissions by incinerators of municipal waste;
(b) airborne lead poses substantial risks to human health, especially to the health of young children, which
imperil human welfare and productivity.
Section 3. No waste disposal plant, whether publicly or privately owned, that engages in the incineration of municipal waste, may engage in the combustion of lead-acid vehicle batteries. Any person found by the United States Environmental Protection Agency to be in violation of this section shall be subject to a fine of no more than $10,000 per instance of incineration.
Section 4. Every state shall promulgate regulations, pursuant to federal standards, providing for the safe manufacture of lead-acid vehicle batteries. Such regulations shall provide for their enforcement by a state agency of competent jurisdiction.
Section 5. Every state receiving federal funds for any program of environmental protection shall, as a condition of the continued receipt of such funds, submit to EPA an annual state plan for regulating the safe disposal of lead-acid vehicle batteries in that state.
Section 6. In choosing or licensing landfill sites for the disposal of lead-acid batteries, no state shall permit their disposal in areas disproportionately inhabited by members of any minority racial group.
While this Act is under review, your home state of
West Dakota faces the following situation. A West Dakota manufacturer
has developed a newly patented lead-acid battery with double the typical
10-year life of the ordinary lead-acid battery. West Dakota university
researchers last year discovered a process ("Battery Pak") for compressing
and "containerizing" old batteries--now available nation-wide--which
permits the disposal of such batteries in far less landfill space
than would otherwise be required. The West Dakota legislature has
consequently adopted a statute that does the following:
1. It prohibits the sale
in West Dakota of any lead-acid vehicle battery whose manufacturer
offers a warranty of continued performance
for a period shorter than 15 years.
2. It authorizes the
construction of a publicly owned factory which will produce "Battery
Pak" disposal containers for sale exclusively
to West Dakota landfill operators.
You are a legislative aid to West Dakota's senior
U.S. Senator, Diane Aaron Green. Senator Greene asks you to prepare
a memorandum answering the following questions:
1. Would Section 3 of the "Safe Battery Incineration Act of 1994," as currently drafted, be constitutional as
applied to privately
owned waste disposal plants engaged in the incineration of municipal
waste?
2. Would Section 3 of the "Safe Battery Incineration Act of 1994," as currently drafted, be constitutional as applied to publicly
owned waste disposal plants engaged in the incineration of municipal
waste?
3. Would your answer
to Question # 2 change if the Supreme Court overruled Garcia
v. SAMTA, and reverted to the doctrine of National
League of Cities v. Usery?
4. Would Section 4 be constitutional under the Tenth Amendment?
5. Would Section 5 be constitutional under the Tenth Amendment?
6. Under what theory, or theories, would section 6 of the Act be constitutional?
7. Would the federal approach to the lead-battery acid problem -- namely, through a ban on combustion and requirements of safe manufacturing and disposal regulations --preempt a state law trying to limit battery disposal via a warranty requirement, i.e., by reducing the frequency with which consumers would have to buy batteries?
9. Does the West Dakota law limiting sales of Battery Pak containers by its publicly owned factory to West Dakota landfill operators violate the dormant commerce clause?
Part Two
In 49 of 50 states, the grey wolf is an endangered species.
In Alaska, however, the wolves are sufficiently abundant that they
actually constitute a threat to other species. Alaska proposes to
permit a one-time-only extended hunting season in late December,
1999, for grey wolves, permitting them to be killed in higher than
usual numbers, in order to prevent their preying on Alaskan caribou.
Imagine it is now fall, 1999. First-term US Representative Jimmy
Stewart plans to submit a bill in January, 2000 in Congress that
would provide federal funding for the transportation of large numbers
of grey wolves out of Alaska to states that seek wolf repopulation
in their wilderness areas. Stewart fears, however, that, because
Congress is not in session during late December, the Alaska hunting
season will eliminate the surplus of wolves he seeks to export before
Congress can act. He has written President Clinton to ask the President
to stop the hunting of Alaskan grey wolves long enough to permit
congressional consideration of Stewart's proposal for wolf transport.
Assume there is no legislation explicitly concerning the President's
authority to preserve wildlife. There is only a statute, the so-called
Antiquities Act, which permits the President of the United States
to declare any "object of historical or scientific interest" in
the United States to be a "national monument." A declaration that
any object is a "national monument" further authorizes the President
to issue "any regulations necessary and appropriate to the protection
of the national monument." The statute defines an "object of historical
or scientific interest" to be "any parcel of land, national formation,
or similar object, the preservation of which would be in the public
interest of the United States."
You should also know that a bill--the proposed National Hunting
Control Act--was introduced in the last Congress. Section 2 of the
bill would have authorized the President "to order an immediate
end to the private or commercial hunting of any species of animal,
the protection of which would be in the public interest of the United
States."
Section 3 of the bill would have provided: "No funds shall be appropriated
for the enforcement of a presidential order regarding hunting if,
within 90 days of that order, the order is disapproved by a concurrent
resolution of Congress."
Section 4 of the bill would have established a National Hunting
Commission, with the following powers: to investigate the impact
of hunting on animal populations, to study state regulation of hunting,
to study the effectiveness of current laws and public programs aimed
at promoting hunting safety, to serve as a national clearinghouse
for information on hunting regulation, to hire staff, to constitute
state advisory committees, and to hold public policy hearings on
issues related to hunting.
Section 5 of the bill provided that the National Hunting Commission
would include 7 commissioners, 2 appointed by the Speaker of the
House, 2 by the President pro tempore of the Senate, and 3 by the
President with the advice and consent of the Senate. It further
provided: "No commissioner shall be removed prior to the expiration
of his or her term except by the President, who may discharge a
commissioner only for malfeasance, neglect of office, or inability
to fulfill the official duties of a commissioner."
The proposed National Hunting Act died in its entirety in committee,
without any actual vote being taken on the bill in either House.
1. May the President,
on December 19, 1999, constitutionally order that no hunting of
Alaskan grey wolves be permitted until March
1, 2000, to secure their preservation while Congress reconvenes
and deliberates on the Stewart bill?
2. If, in 2000, Congress
enacts the National Hunting Control Act as described above, would
that Act be constitutional?
Sample Objective Questions
1. Which of the following is typically not part of the test whether a federal statute falls within Congress's implied powers under the Necessary and Proper Clause?
(A)
Whether the statute pursues a legitimate purpose.
(B)
Whether the statute is fully cost-effective in achieving its intended benefits.
(C)
Whether the statute violates any other provision of the Constitution.
(D)
Whether the statute represents a rational means of pursuing Congress's statutory objective.
2. In order to reform the IRS, Congress decides to remove it from the Treasury Department and reorganize it as a new cabinet-level Department of Taxation and Revenue Collection. It shall be run by a Secretary of Taxation and Revenue. Congress provides that the Secretary shall appoint an Assistant Secretary for Taxpayer Responsiveness to insure an improved level of service to the IRS "customers," and that such Assistant Secretary may be removed "only for malfeasance, corruption, ineffectiveness, or incapacity to discharge the office." Are the provisions for appointing and removing the Assistant Secretary constitutional?
(A)
Although the appointment
provision is constitutional, it is unconstitutional to deny either
the President or the Secretary power
to remove any high administrative official "at will."
(B)
Although the removal
limitation is constitutional, it is unconstitutional to deny the
President power to
appoint any politically sensitive high-level administrative official.
(C)
Both the appointment and removal provisions intrude unconstitutionally on the President's constitutional powers.
(D)
Neither the appointment
and removal provisions interfere with the President's discharge
of his constitutional
powers; therefore, both are permissible.
